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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property; (l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due; (m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology; (n) It does not hire any new officer-level employee; (o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required in the Ordinary Course of Business; (p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and (q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 3 contracts
Samples: Share Exchange Agreement, Share Exchange Agreement (Bonanza Goldfields Corp.), Share Exchange Agreement (Cosmos Group Holdings Inc.)
Operation of the Business. The Seller or Underlying Asset Infinity Resources 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 AssetInfinity Resources;
(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, except with respect to the repurchase of shares of Infinity Resources Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Infinity Resources Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 2 contracts
Samples: Share Exchange Agreement (Tap Resources, Inc.), Share Exchange Agreement (Tap Resources, Inc.)
Operation of the Business. The Unless the Seller shall receive the prior written consent of the Purchaser, which consent may not be unreasonably withheld or Underlying Asset delayed, and except as required by any Legal Requirement, the Seller shall use its commercially reasonable efforts to ensure that, during the Pre-Closing Period, the following covenants are complied with, but only as they relate exclusively to the Business and the Transferred Assets:
(a) It conducts the Seller and its Affiliates shall conduct the operations of the Business in the Ordinary Course ordinary course of Business business (except that the Seller and in its Affiliates may delay the same manner as such operations have been conducted prior payment of certain payables to the date of this Agreementconserve cash);
(b) It uses the Seller and its Affiliates shall use commercially reasonable efforts to preserve intact its current business organization, keep available and not terminate the services of its current officers and the employees and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with currently providing services primarily to the Underlying AssetBusiness;
(c) It does the Seller and its Affiliates shall not declarechange any of the methods of accounting or accounting practices in any material respect, accrue, set aside other than in a manner consistent with changes in GAAP or pay any dividend or make any other distribution to conform to changes 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 securitiesapplicable Legal Requirements;
(d) It does the Seller and its Affiliates shall not sell make any Tax election with respect to the Business or otherwise issue (that affects the Transferred Assets, other than Tax elections that are the same as or grant any warrants, options consistent with Tax elections previously made by the respective party or other rights to purchase) any shares of capital stock or any other securitiesconform to changes in applicable Legal Requirements;
(e) It does the Seller and its Affiliates shall not amend its charter document(i) sell, corporate governance document transfer, lease, license or otherwise dispose of any of the Transferred Assets, other than sales of Transferred Inventory in the ordinary course of business, or (ii) subject any of the Transferred Assets to any claim, lien, pledge, option, charge, easement, security interest, deed of trust, mortgage, conditional sales agreement, Encumbrance, preemptive right, right of first refusal, restriction or other Organizational Documentsright of third parties, and does not affect whether voluntarily incurred or become a party to any recapitalizationarising by operation of law, reclassification of shares, stock split, reverse stock split or similar transactionother than as may exist on the Effective Date;
(f) It does not form any subsidiary the Seller and its Affiliates shall not: (i) other than in the ordinary course of business, declare 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 declare or make any profit sharing cash incentive payment, retention payment or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation (including equity and equity-based compensation) or remuneration payable to, and does not enter into or amend accelerate any agreement with benefits available to, any of its directors, officers the Eligible Employees; or employees;
(hii) 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 ordinary course of Business; (ii) incurbusiness, 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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down employee for the value of inventory or writing off notes or accounts receivable, except as required in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(qg) It does the Seller and its Affiliates shall not enter into any transaction or commit to take any other action that likely would cause or constitute a Breach of any representation or warranty made by it the actions described in clauses “(c)” through “(f)” of this AgreementSection 4.11.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Oclaro, Inc.), Asset Purchase Agreement (Ii-Vi Inc)
Operation of the Business. The Seller or Underlying Asset Buyippee 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 AssetXxxxxxxx;
(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, except with respect to the repurchase of shares of Buyippee Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Buyippee Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 2 contracts
Samples: Share Exchange Agreement (Dh Enchantment, Inc.), Share Exchange Agreement (Dh Enchantment, Inc.)
Operation of the Business. The Seller or Underlying Asset Beyond Blue 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 AssetBeyond Blue;
(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, except with respect to the repurchase of shares of Beyond Blue Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Beyond Blue Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset Company shall ensure that, during the Pre-Closing Period, except (i) as otherwise set forth in this Agreement (including any conditions to Closing herein), or (ii) with the prior written consent of Terra Tech, which consent shall not be unreasonably withheld, conditioned, or delayed:
(a) It Except as otherwise set forth in the Company Disclosure Schedule, it conducts its operations in the Ordinary Course of Business and in substantially the same manner as such operations have been conducted prior to the date of this AgreementSigning Date;
(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 employees, and other Persons having business relationships with the Underlying AssetCompany;
(c) It does not declare, accrue, set aside aside, or pay any dividend or make any other distribution in respect of any shares of its capital stock, and does not repurchase, redeem redeem, or otherwise reacquire any shares of its capital stock or other securities, except with respect to the repurchase of the shares of Company Common Stock upon termination of employees at the original purchase price pursuant to agreements existing as of the Signing Date;
(d) It Except as set forth in the Disclosure Schedule, it does not sell or otherwise issue (or grant any warrants, options options, or other rights to purchase) any shares of capital stock or any other securities, except the issuance of shares Company Common Stock pursuant to options outstanding on the date of this Agreement;
(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 split, or similar transaction, other than as necessary to enable the transactions contemplated under this Agreement;
(f) It does not form any subsidiary or acquire any equity interest or other interest in any other Entity;
(g) It Except as set forth in the Disclosure Schedule, it does not establish or adopt any Employee Benefit Planemployee 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 benefits, or other compensation or remuneration payable to, and does not enter into or amend any agreement with any of its directors, officers officers, or employees;
(h) It does not change any of its methods of accounting or accounting practices in any respect, other than as necessary to enable the transactions contemplated under this Agreement;
(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 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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It Except as otherwise set forth in the Company Disclosure Schedule, it does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, receivable except as required in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Terra Tech Corp.)
Operation of the Business. The Seller or Underlying Asset shall ensure thatBetween the date of this Agreement and the Effective Time, during each of NELX and J&C will conduct its business only in the Pre-Closing Periodordinary course of business, and will:
(a) It conducts not amend 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 Agreementcharter or bylaws;
(b) It uses not increase the compensation or benefits (including, without limitation, salary, bonus and commission schedules) of any personnel, except for non-key management personnel in the ordinary course of business;
(c) use its commercially reasonable best efforts to preserve intact its current business organization, keep available and not terminate the services of its current officers and employees personnel, and maintain its the relations and goodwill good will with all suppliers, customers, landlords, creditors, licensorsemployees, licenseesagents, employees and other Persons others having business relationships with the Underlying Assetit consistent with its sound business judgment and past practices;
(cd) It does not issue or sell any debt or equity securities (including upon the exercise of currently outstanding options, warrants and other rights), declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of its capital stocksecurities, and does not repurchase, or directly or indirectly redeem or otherwise reacquire repurchase any shares outstanding securities, provided that any issuance of its capital stock or other securities;
(d) It does not sell or otherwise issue (or grant any warrants, options or other rights by J&C shall be prohibited only to purchase) any shares of capital stock or any other securitiesthe extent that it would increase the NELX Common Stock to be issued pursuant hereto;
(e) It does not amend its charter documentsell, corporate governance document assign, transfer, convey, lease or other Organizational Documents, and does not affect otherwise dispose of or become a party subject to any recapitalizationEncumbrance any of its assets, reclassification except for sales of sharesinventory and used equipment, stock split, reverse stock split or similar transaction;in each case in the ordinary course of business consistent with past practice
(f) It does not form any subsidiary acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all of the assets of, or otherwise acquire any equity interest material assets or other interest in business of any other Entityperson;
(g) It does not establish or adopt any Employee Benefit Plan, and does not pay any bonus or make any profit sharing loans or similar payment toadvances to any person, or increase except in the amount ordinary course of business nor discharge any debt prior to 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 employeesscheduled maturity thereof;
(h) It does not change make any payment or enter into any agreement or other transaction with any officer or director of its methods of accounting or accounting practices such party, other than employment compensation and benefits on the terms currently in any respecteffect;
(i) It does not make fail to comply in any Tax electionmaterial respect with all Requirements of Law applicable to its business;
(j) It does not commence make any operational changes or take any action or fail to take any action which would result in the commencement developments of any Proceeding;a material nature; and
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into into, amend or amend terminate any agreements pursuant Contract which is or would be required to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required be disclosed in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this AgreementSchedule 6.11 hereto.
Appears in 1 contract
Samples: Merger Agreement (Nelx Inc)
Operation of the Business. The Seller or Underlying Asset UWMC 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 AssetUWMC;
(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, except with respect to the repurchase of shares of UWMC Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of UWMC Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset Edible Garden 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 AssetEdible Garden;
(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, except with respect to the repurchase of shares of Edible Garden Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset Xinghe 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 AssetXxxxxx;
(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, except with respect to the repurchase of shares of Xinghe Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Xinghe Shares of Common Stock pursuant to option grants to employees in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset S and S shall ensure that, during the Pre-Closing Period, except (i) as otherwise set forth in or contemplated by this Agreement (including any conditions to Closing herein) or (ii) with the prior written consent of Kona Gold, which consent shall not be unreasonably withheld, delayed, denied, or conditioned:
(a) It conducts Except as otherwise set forth in the S and S Disclosure Schedule, it shall use commercially reasonable efforts to conduct its operations in the Ordinary Course of Business and in substantially the same manner as such operations have been conducted prior to the date of this AgreementSigning Date;
(b) It uses shall use 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 employees, and other Persons having business relationships with the Underlying AssetS and S;
(c) It does shall not declare, accrue, set aside aside, or pay any dividend or make any other distribution in respect of any shares of its capital stockstock other than in the Ordinary Course of Business, and does shall not repurchase, redeem redeem, or otherwise reacquire any shares of its capital stock or other securities;
(d) It does Except as set forth in the S and S Disclosure Schedule, it shall not sell or otherwise issue (or grant any warrants, options options, or other rights to purchase) any shares of capital stock or any other securities;
(e) It does shall not amend its charter documentdocuments, corporate governance document documents, or other Organizational Documents, and does shall not affect or become a party to any recapitalization, reclassification of shares, stock split, reverse stock split split, or similar transaction, other than as necessary to enable the transactions contemplated under this Agreement;
(f) It does shall not form any subsidiary or acquire any equity interest or other interest in any other Entity;
(g) It does Except as set forth in the S and S Disclosure Schedule, it shall not establish or adopt any Employee Benefit Planemployee benefit plan, and does shall not pay any bonus or make any profit sharing or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits benefits, or other compensation or remuneration payable to, and does not enter into or amend any agreement with any of its directors, officers officers, or employeesemployees other than in the Ordinary Course of Business;
(h) It does shall not change any of its methods of accounting or accounting practices in any respect, other than as necessary to enable the transactions contemplated under this Agreement;
(i) It does shall not make any Tax election;
(j) It does shall not commence or take any action or fail to take any action which would result that results in the commencement of any Proceeding;
(k) It does shall not (i) acquire, dispose of, transfer, lease, license, mortgage, pledge pledge, or encumber any fixed or other assets, other than in the Ordinary Course of Business; (ii) incur, assume 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 any loans, advances advances, or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts shall pay any overdue Taxes and Taxesfile any overdue Tax Returns, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when dueif applicable;
(m) It does Except as otherwise set forth in the S and S Disclosure Schedule, it shall not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing marketing, or other rights of any type or scope with respect to any of its services, products products, or technologytechnology other than in the Ordinary Course of Business;
(n) It does shall not hire any new officer-level employeeemployee without first consulting with Kona Gold;
(o) It does shall not revalue any of its assets, including, without limitation, writing writing-down the value of inventory or writing writing-off notes or accounts receivable, receivable except as required in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(qp) It does shall not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this AgreementMaterial Adverse Effect.
Appears in 1 contract
Operation of the Business. The Until the Closing, Seller shall use its reasonable efforts to cause the Companies to conduct the Business and to operate and maintain their assets in the ordinary course consistent with past practices, keep the books and records of the Companies in accordance with past practices, maintain all of their existing insurance coverage, maintain good working relationships with their customers and suppliers and the employees of Lodi Management and pay all of their trade payables and other obligations on a timely basis. Seller will not, and shall cause the Companies not to, without the prior written approval of Buyer (which approval shall not be unreasonably withheld, delayed or Underlying Asset shall ensure thatconditioned) or as otherwise contemplated by this Agreement or Schedule 6.1, during take any of the Pre-Closing Period:following actions with respect to the Companies (such actions set forth in subsections (a) through (p) hereof being the “Enumerated Actions”):
(a) It conducts its operations in the Ordinary Course amend their respective certificates of Business and in the same manner as such operations have been conducted prior formation or limited liability company agreements, or issue or agree to the date issue any additional membership interests (or other equity interests) of this Agreementany class or series, or any securities convertible into or exchangeable or exercisable for membership interests (or other equity interests), or issue any options, warrants or other rights to acquire any membership interests (or other equity interests);
(b) It uses its commercially reasonable efforts to preserve intact its current business organizationsell, keep available and not terminate transfer or otherwise dispose of or encumber any of the services assets of its current officers and employees and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and the Business other Persons having business relationships with than in the Underlying Assetordinary course of business;
(c) It does not declare, accrue, set aside cancel any debts or pay waive any dividend material claims 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 securitiesrights pertaining to the Business;
(d) It does not sell incur, assume or otherwise guarantee any Indebtedness, or issue (any notes, bonds, debentures or other similar securities, or grant any warrantsoption, options warrant or other rights right to purchase) purchase any shares of capital stock the same, or issue any other securitiessecurity convertible or exchangeable or exercisable for debt securities of the Companies;
(e) It except as deemed necessary by Seller in connection with resolution of the matters raised in the Pending Audit but only to the extent such resolution does not amend its charter documentinvolve a change in the tax classification of the Companies and Seller referenced in Section 4.11(f), corporate governance document make or other Organizational Documentschange any material Tax elections (except as required by Law), and does not affect adopt or become change any accounting method with respect to Taxes except as may be required as a party result of a change in Law, file any amendment to a Tax Return, enter into any closing agreement with respect to Taxes, settle any material claim or assessment with respect to Taxes, consent to any recapitalizationextension or waiver of the limitation period applicable to any claim or assessment in respect to Taxes, reclassification of shares, stock split, reverse stock split or similar transactionsettle or compromise any material Tax liability;
(f) It does not form enter into any subsidiary employment agreement or acquire any equity interest severance agreement or other interest in any other Entitycompensation arrangement binding on the Companies or that would be binding on Buyer pursuant to Section 6.6;
(g) It does not establish except as may be required as a result of a change in Law or adopt in GAAP, change 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 accounting principles or other compensation or remuneration payable to, and does not enter into or amend any agreement with any of its directors, officers or employeespractices used by the Companies;
(h) It does not change except for those activities and expenditures contemplated by Schedule 6.1, make any capital expenditure or make any commitment to make any capital expenditure in excess of its methods $250,000, other than (i) pursuant to existing commitments set forth in the Disclosed Contracts or business plans described in Schedule 6.1, (ii) to repair, maintain or replace any assets, properties or facilities in the ordinary course of accounting business, or accounting practices in (iii) as may be necessary to maintain or restore safe operations of the Business or respond to any respectcatastrophe or other emergency situation;
(i) It does not make any Tax electionadopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other restructuring;
(j) It does not commence except as contemplated by the Note Purchase Agreement or take any action the Loan Agreement, pledge or fail mortgage the assets of the Companies or otherwise cause or permit a Lien (other than a Permitted Lien) to take any action which would result in exist against the commencement assets of any Proceedingthe Companies;
(k) It does not effect any split, combination or reclassification of the LLC Interests;
(il) redeem, repurchase or otherwise acquire, dispose ofdirectly or indirectly, transferany of the LLC Interests;
(m) allow or cause either Company to acquire (by purchase, leasemerger or otherwise) any equity interest in, 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) otherwise make any loans, advances or capital contributions to, or investments investment in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into any joint venture, partnership or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technologysimilar arrangement;
(n) It does not hire knowingly allow any new officer-level employeematerial Permit held by the Companies to terminate or lapse;
(o) It does not revalue enter into any agreement or amend, modify or terminate any Disclosed Contract or Permit to which either Company is a party or by which any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivabletheir assets are bound, except as required that the Companies may (i) enter into agreements for the conduct of the Business or the maintenance of the Companies’ assets in the Ordinary Course ordinary course of Business;business consistent with past practices and (ii) enter into or amend Firm Storage Service Agreements and Interruptible Storage Service Agreements consistent with past practices and in accordance with Lodi Gas’ tariffs on file with the CPUC; or
(p) Except as otherwise agree, whether in writing or otherwise, to do any of the foregoing; provided, however, that nothing in this Section 6.1 shall preclude Seller or the Companies from obtaining the consent of any third party required in connection with the transactions contemplated hereunderby this Agreement, it does not and provided, further, that the Companies may prepare and submit to the CPUC and other Governmental Entities applications for the issuance (or amendment) of Permits or other authorizations, enter into any transaction or contracts for, make capital expenditures in connection with, and otherwise take any and all reasonable actions in furtherance of the operation of the Business and the expansion of the Xxxxx Hills gas storage facility in accordance with the expansion plan described in Schedule 6.1 (the “Expansion”) and the expansion budget attached as Exhibit C hereto. Seller shall cause the Companies not to spend less than 90%, or in excess of 110%, of the amount budgeted on a monthly basis after the date of this Agreement as set forth in such attached budget, without the prior written consent of Buyer, which consent shall not be unreasonably withheld. Prior to the Closing, Seller shall, and shall use its reasonable efforts to cause the Companies and Lodi Management to, make their representatives and/or employees who are actively engaged in the conduct of the Business available to Buyer (and its representatives) on a reasonable basis to confer and discuss with respect to (i) the operation of the Business and the status of the assets of the Companies and the status of the Expansion (including accompanying Buyer’s representatives on site visits of the Expansion if reasonably requested), (ii) the legal, operational and other action outside actions required or reasonably necessary for the Ordinary Course consummation of Business; and
the transactions contemplated by this Agreement, (qiii) It does not enter into the smooth and orderly transition of the Business to Buyer and (iv) the status of Seller’s compliance with this Section 6.1. After the date of this Agreement and prior to the Closing, Seller shall, and shall cause the Companies to, keep Buyer reasonably apprised of the regulatory and operational status of the Expansion. Prior to the Closing, Seller shall cause Lodi Gas to manage the operation of its Interruptible Storage Services business in accordance with the risk limits established by the Member Committee of Seller and described in Exhibit D hereto. Additionally, prior to the Closing and for informational purposes only, Seller shall give notice (which may be made by email or other electronic submission) to Buyer (or to a representative of Buyer) immediately, on a daily basis, if the Interruptible Storage Services business’ “value at risk” measurement exceeds Five Million Five Hundred Thousand Dollars ($5,500,000) (as measured and determined consistent with past practice of Lodi Gas). Prior to the Closing, Seller shall cause the Companies to maintain the levels of pad gas in the Companies’ gas storage facilities consistent with historic levels and any transaction levels required by Laws or take any other action that likely would cause or constitute a Breach Orders of any representation or warranty made by it in Governmental Entity. Prior to the Closing, Seller shall prepare and deliver to Buyer consolidated financial statements of Seller and its Subsidiaries for each and as of the end of each fiscal quarter of Seller that ends prior to the 45th day prior to the Closing Date. Upon delivery to Buyer, such financial statements shall be deemed “Financial Statements” for all purposes under this Agreement.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset Kona Gold shall ensure that, during the Pre-Closing Period, except (i) as otherwise set forth in or contemplated by this Agreement (including any conditions to Closing herein) or (ii) with the prior written consent of S and S, which consent shall not be unreasonably withheld, delayed, denied, or conditioned:
(a) It conducts shall use commercially reasonable efforts to conduct its operations in the Ordinary Course of Business and in substantially the same manner as such operations have been conducted prior to the date of this AgreementSigning Date;
(b) It uses shall use 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 employees, and other Persons having business relationships with the Underlying AssetKona Gold;
(c) It does shall not declare, accrue, set aside aside, or pay any dividend or make any other distribution in respect of any shares of its capital stockstock other than in the Ordinary Course of Business, and does shall not repurchase, redeem redeem, or otherwise reacquire any shares of its capital stock or other securities;
(d) It does shall not sell or otherwise issue (or grant any warrants, options options, or other rights to purchase) any shares of capital stock or any other securities;
(e) It does shall not amend its charter documentdocuments, corporate governance document documents, or other Organizational Documents, and does shall not affect or become a party to any recapitalization, reclassification of shares, stock split, reverse stock split split, or similar transaction, other than as necessary to enable the transactions contemplated under this Agreement;
(f) It does shall 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 shall not commence or take any action or fail to take any action which would result that results in the commencement of any Proceeding;
(kh) 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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does shall not hire any new officer-level employeeemployee without first consulting with S and S;
(oi) It does shall not revalue any of its assets, including, without limitation, writing writing-down the value of inventory or writing writing-off notes or accounts receivable, receivable except as required in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(qj) It does shall not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this AgreementMaterial Adverse Effect.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset Jade Affiliated 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 AssetJade Affiliated;
(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, except with respect to the repurchase of shares of Jade Affiliated Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Jade Affiliated Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Samples: Share Exchange Agreement (Evil Empire Designs, Inc.)
Operation of the Business. The Seller or Underlying Asset GSL Healthcare 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 AssetGSL Healthcare;
(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, except with respect to the repurchase of shares of GSL Healthcare Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of GSL Healthcare Common Shares pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset shall ensure that, during the Pre-Closing Period:
(a) It the Seller conducts its the operations of the Business in the Ordinary Course ordinary course of Business business and in substantially the same manner as such operations have been conducted prior to the date of this Agreement;
(b) It the Seller uses its commercially reasonable efforts to (i) preserve intact its the current business organizationorganization of the Business, (ii) keep available and not terminate the services of its current officers and employees of the Business, and (iii) maintain its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees employees, independent contractors and other Persons having business relationships with the Underlying AssetBusiness;
(c) It does not declare, accrue, set aside or pay any dividend or make any other distribution in respect the Purchaser is notified as promptly as practicable of any shares of its capital stockinquiry, and does not repurchase, redeem proposal or otherwise reacquire offer from any shares of its capital stock or other securitiesPerson relating to any Acquisition Transaction;
(d) It the Seller 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 effect or become a party to any recapitalizationAcquisition Transaction;
(e) the Seller does not enter into any Contract that will become a Transferred Contract without the Purchaser’s consent, reclassification of shares, stock split, reverse stock split or similar transactionwhich consent shall not be unreasonably withheld;
(f) It the Seller does not form make any subsidiary capital expenditure on behalf of or acquire related to the Business or any equity interest or other interest in any other EntityAsset;
(g) It the Seller does not incur, assume or otherwise subject the Business to any Liability, except for current liabilities incurred in the ordinary course of business, all of which Liabilities shall remain with Seller and be paid as of the Closing as contemplated by Section 1.4(a)(v);
(h) the Seller does not establish or adopt any new Seller Employee Benefit Plan, and does not or pay any bonus or make any profit profit-sharing or similar payment to, or increase the amount of the wages, salary, commissions, fees, 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 employeesSeller Employee;
(hi) It the Seller does not change any of its methods of accounting or accounting practices in any respect;
(i) It does not make any Tax electionrespect of the Business or the Assets;
(j) It the Seller does not commence or take settle any action or fail Proceeding related 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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(qk) It the Seller does not enter into any transaction agree, commit or offer (in writing or otherwise) to take any other action of the actions that likely would cause or constitute a Breach are described in clauses (d) through (j) of any representation or warranty made by it in this AgreementSection 4.2.
Appears in 1 contract
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 Between the date of this Agreement and the Closing and except as expressly contemplated by this Agreement;
, the Corporation shall (and the Vendors shall cause the Corporation to), as reasonably required in order to satisfy or aid in the satisfaction of the conditions in Article 5 or as otherwise directed by Xxxxxxxxx in writing, and without making any commitment on Purchaser’s behalf: (a) conduct the Business only in the ordinary course of business subject to conduct required in direct response to the COVID-19 pandemic and any direct consequences thereof; (b) It uses its use commercially reasonable efforts to preserve intact its current business organizationthe Business, keep available and not terminate the services of its current officers officers, employees and employees agents and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, licensorsemployees, licensees, employees agents and other Persons others having business relationships with the Underlying Asset;
Corporation; (c) It does confer with Purchaser prior to implementing operational decisions of a material nature; (d) otherwise report periodically to Purchaser concerning the status of the Business, operations and finances of the Corporation; (e) not declare, accrue, set aside or pay any dividend or make any other distribution change in respect or amendment to their articles of incorporation or their by-laws; (f) not issue or sell, or authorize to issue or sell, any shares in the capital of its the Corporation or any other ownership interests, or issue or sell, or authorize to issue or sell, any securities convertible into, exercisable into or exchangeable for, or options, warrants or rights to purchase or subscribe for, or enter into any arrangement or Contract with respect to the issuance or sale of, any shares in the capital stockof the Corporation or any other ownership interests; (g) not split, and does not repurchasecombine, redeem or reclassify, purchase or otherwise reacquire acquire any shares in the capital of its capital stock the Corporation 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 process any payments out of its methods the ordinary course of accounting business; (j) seek Purchaser approval on any payments to any supplier, Vendor, processor or accounting practices consultant that will, in any respect;
the aggregate, be over $5,000.00, between the date of this Agreement and the Closing; or (i) It does not make authorize any Tax election;
(j) It does not commence of, or take any action commit or fail agree 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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreementforegoing actions.
Appears in 1 contract
Samples: Share Purchase Agreement
Operation of the Business. The Seller or Underlying Asset Pulse Network 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 AssetThe Pulse Network;
(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, except with respect to the repurchase of shares of The Pulse Network Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of The Pulse Network Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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;
(ih) It does not make any Tax election;
(ji) It does not commence or take any action or fail to take any action which would result in the commencement of any Proceeding;
(kj) 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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(lk) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(ml) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(nm) It does not hire any new officer-level employee;
(on) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(po) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(qp) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset Powertech 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 AssetPowertech;
(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, except with respect to the repurchase of shares of Powertech Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Powertech Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset Gold Shiny 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 AssetGold Shiny;
(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, except with respect to the repurchase of shares of Gold Shiny Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Gold Shiny Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Samples: Share Exchange Agreement (Fovea Jewelry Holdings Ltd.)
Operation of the Business. The Seller Except as otherwise provided in this Agreement, the OneQor Disclosure Schedule, in the Ordinary Course of Business of OneQor, or Underlying Asset consented to in writing by Terra Tech (which consent shall not be unreasonably withheld or delayed), OneQor 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 Agreementall material respects;
(b) It uses its commercially reasonable efforts to preserve intact its current business organizationbusiness, 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 AssetOneQor;
(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, except with respect to the repurchase of shares of OneQor Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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 securitiessecurities other than the issuance of OneQor Common Stock to employees, consultants or advisors of OneQor;
(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 Planbenefit plan, and does not pay any material bonus or make any profit sharing or similar payment to, or materially 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 material respect, except as in accordance with GAAP or as required by Law;
(i) It does not make any material 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 BusinessPerson; (iv) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(lk) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(ml) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other similar rights of any type or scope with respect to any of its services, products or technology;
(nm) It does not hire any new officer-level employee;
(on) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(qo) It does not enter into any transaction or take any other action that likely would reasonably be expected to cause or constitute a Breach of any representation or warranty made by it in this AgreementArticle II.
Appears in 1 contract
Samples: Merger Agreement (Terra Tech Corp.)
Operation of the Business. The During the Interim Period: (i) Seller or Underlying Asset shall ensure that, during conduct the Pre-Closing Period:
(a) It conducts its operations Business solely 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 use its commercially reasonable best efforts to preserve intact its current business organizationBusiness operations, assets (including all Purchased Assets), organization and goodwill, keep available and not terminate the services of its current officers officers, employees and employees consultants and maintain its relations existing relationships with vendors, customers and goodwill others; and (ii) Seller shall maintain its Monterey Good Standing. In furtherance of, and without limiting the generality of the foregoing, Seller shall: (1) operate the Business in full compliance with all suppliersstate and local Legal Requirements and federal Legal Requirements other than those listed on Schedule 4(K); and (2) not: (a) sell, customerslease, landlordslicense, creditors, licensors, licensees, employees and other Persons having business relationships with the Underlying Asset;
(c) It does not declare, accrue, set aside create a Lien or pay any dividend or make any other distribution in respect dispose 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;
of the Purchased Assets, except use of supplies or sales of Business Inventory in the Ordinary Course; (gb) 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 of or encumber Lien on the Property or any fixed Purchased Assets; (c) agree to any non-compete restriction or other assets, other than in similar prohibition on the Ordinary Course of Business; (iid) incuraccelerate or delay collection of, assume or prepay write off, any indebtedness, Indebtedness or obligation or any other liabilities or issue any debt securities, other than in receivables generated by the Ordinary Course of Business; (iiie) assume, guarantee, endorse for the obligations delay or accelerate payment of any account payable or other person, other than in Liability of the Ordinary Course of Business; (ivf) make any loansallow the levels of raw materials, advances supplies, work-in-process or capital contributions to, or investments in, any other Person, other than materials included in the Ordinary Course of Business Inventory to vary from the levels customarily maintained in the Business; (g) cancel, terminate, amend or grant any waiver or Consent under any Contract; (vh) fail cancel, compromise, waive or release any right or Claim (or series of related rights or Claims); (i) amend its organizational documents; (j) settle or compromise any Proceeding; (k) cancel or terminated any Insurance Policies or allow any of the coverage thereunder to maintain insurance consistent with past practices for its business and property;
lapse; and/or (l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside or permit to exist any circumstance that would or that, with the Ordinary Course giving of Business; and
(q) It does not enter into any transaction notice, the lapse of time or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreementboth, could result on Seller losing its Monterey Good Standing.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset shall ensure that, during the Pre-Closing Period:
(a) It conducts Until the Closing, except as otherwise set forth in this Agreement, Schedule 5.2 or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller will, and will cause the other members of the Seller Group to, conduct the Business (and maintain its operations assets, including the Owned Real Property, in good operating condition and repair in accordance with past practices (normal wear and tear accepted)) in the Ordinary Course ordinary course of the Business in all material respects and in compliance with all Laws, including the same manner as such operations have been conducted prior to the date of this Agreement;
(b) It uses Consent Decree and use its commercially reasonable efforts to preserve intact its current business organization, keep available and not terminate the services of its current officers the Employees and employees and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business to preserve the Business’ relationships with the Underlying Asset;its customers and others doing business with it.
(cb) It does Until the Closing, except as otherwise set forth in this Agreement or the Seller Disclosure Schedule or as otherwise consented to in writing by the Purchaser (which consent will not declarebe unreasonably withheld, accrueconditioned or delayed), set aside the Seller will not, and will not cause or pay any dividend or make permit 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 member of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable Seller Group 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 incur any Tax electionIndebtedness for borrowed money that constitutes an Assumed Liability;
(jii) It does not commence terminate or materially and adversely amend any Material Contract;
(iii) enter into any Contract that will become an Included Contract except on customary commercial terms and in the ordinary course of business, and in no event having a term in excess of 90 days;
(iv) take any action that (with or fail without notice or lapse of time or both) would constitute a breach, violation or default under any term or provision of any Included Contract;
(v) waive or release any right or claim of a material value to take any action which would result the Business other than in the commencement ordinary course of the Business;
(vi) compromise, settle, or otherwise adjust any Proceeding;
(kvii) It does not sell, lease, assign, transfer, dispose or license, or permit any Encumbrance on, any of the Purchased Assets other than sales of inventory in the ordinary course of business, or amend, modify, extend, renew, sublet or terminate any lease, or demolish or remove any existing improvements, or erect new improvements on the Owned Real Property, the Leased Real Property or any portion thereof (iexcept with respect to the installation of physical barriers relating to the segregation of the wax-coating business at the Menasha Facility);
(viii) acquire, dispose by merger or consolidation with, or by purchase of all or a substantial portion of the assets or stock of, transferor by any other manner, leaseany business or entity, licensewhich would constitute a Purchased Asset or Assumed Liability, mortgageor enter into any joint venture, pledge or encumber any fixed partnership 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 similar arrangement for the obligations conduct of any other person, other than in the Ordinary Course of Business; (iv) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required in the Ordinary Course of Business;
(pix) Except materially change the remuneration or terms of employment of any Employee other than (A) in the ordinary course of the Business, (B) as otherwise required by Law or (C) for retention, incentive and similar payments relating to the consummation of the transactions contemplated hereunderby this Agreement, it does not all of which payments shall be made by the Seller; or
(x) enter into any transaction or amendment to a Collective Bargaining Agreement, other than immaterial edits;
(xi) agree in writing to take any other action outside of the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreementforegoing actions.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset Jebe Production 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 AssetJebe Production;
(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, except with respect to the repurchase of shares of Jebe Production Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Jebe Production Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Samples: Share Exchange Agreement (Sharing Economy International Inc.)
Operation of the Business. The Seller or Underlying Asset Ever Harvest 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 AssetEver Harvest;
(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, except with respect to the repurchase of shares of Ever Harvest Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Ever Harvest Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Samples: Share Exchange Agreement (Ever Harvest International Group Inc.)
Operation of the Business. The Seller or Underlying Asset SHV Corp. 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 AssetSHV Corp.;
(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, except with respect to the repurchase of shares of SHV Corp. Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of SHV Corp. Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset Powertech 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 AssetPowertech;
(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, except with respect to the repurchase of shares of Powertech Ordinary Shares upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Powertech Ordinary Shares pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset Trendmark 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 AssetTrendmark;
(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, except with respect to the repurchase of shares of Trendmark Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Trendmark Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Samples: Share Exchange Agreement (Evil Empire Designs, Inc.)
Operation of the Business. The Seller or Underlying Asset Massive Treasure 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 AssetMassive Treasure;
(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, except with respect to the repurchase of shares of Massive Treasure Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Massive Treasure Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Samples: Share Exchange Agreement (Cosmos Group Holdings Inc.)
Operation of the Business. The Seller or Underlying Asset Peak Equity 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 AssetPeak Equity;
(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, except with respect to the repurchase of shares of Peak Equity Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Peak Equity Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Samples: Share Exchange Agreement (Sharing Economy International Inc.)
Operation of the Business. The Seller or Underlying Asset Nemo Holding 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 AssetNemo Holding;
(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, except with respect to the repurchase of shares of Nemo Holding Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of Nemo Holding Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Operation of the Business. The Seller or Underlying Asset OOB HK 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 AssetOOB HK;
(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, except with respect to the repurchase of shares of OOB HK Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of OOB HK Shares of Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Samples: Share Exchange Agreement (Sharing Economy International Inc.)
Operation of the Business. The Seller Except as otherwise provided in this Agreement, the Terra Tech Disclosure Schedule, in connection with the consummation of the Planned Dispositions, in the Ordinary Course of Business of Terra Tech, or Underlying Asset consented to in writing by OneQor, Terra Tech shall ensure that, 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 Agreementall material respects;
(b) It uses its commercially reasonable efforts to preserve intact its current business organizationbusiness, 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 AssetTerra Tech;
(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 securitiessecurities other than in (i) connection with the conversion or exercise of Terra Tech Securities outstanding as of the date hereof, (ii) issuances of shares of capital stock pursuant to that certain Investment Agreement by and between Terra Tech Corp. and Dominion Capital LLC dated November 28, 2016 or (iii) the issuance of options to purchase Terra Tech Common Stock to Persons hired as an officer-level employee in accordance with Section 6.4(m) of this Agreement;
(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 Planbenefit plan, and does not pay any material bonus or make any profit sharing or similar payment to, or materially 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 material respect, except as in accordance with GAAP or as required by Law;
(i) It does not make change any material Tax electionelection except as otherwise required by applicable Law;
(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 BusinessPerson; (iv) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property; provided, however, that any consent pursuant to this Section 6.4(j) shall not be unreasonably withheld, delayed or conditioned;
(lk) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(ml) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other similar rights of any type or scope with respect to any of its services, products or technology;
(nm) It does not hire any new officer-level employee;; provided that Terra Tech may replace an existing officer as of the date hereof so long as such incoming officer’s compensation is substantially the same as the departing officer.
(on) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Businessunder GAAP; and
(qo) It does not enter into any transaction or take any other action that likely would reasonably be expected to cause or constitute a Breach of any representation or warranty made by it in this AgreementArticle III.
Appears in 1 contract
Samples: Merger Agreement (Terra Tech Corp.)
Operation of the Business. The Seller or Underlying Asset shall ensure thatPending Closing. Between the date hereof ----------------------------------------- and the Closing Date, during unless Purchaser consents in writing to the Pre-Closing Periodcontrary, other than as provided for herein, Biofluids shall:
(a) It conducts its operations conduct the Business in the Ordinary Course of Business ordinary course in accordance with prior practice;
(b) make, amend and terminate contracts and operate only in the same manner ordinary course of business;
(c) not create or incur indebtedness except current liabilities in the ordinary course of business;
(d) not suffer, create or incur any mortgage, security interest, Lien, Lease, encumbrance or restriction on any of the Purchased Assets (other than Permitted Liens);
(e) duly comply with all laws, ordinances, rules and regulations applicable to Biofluids and to the conduct of the Business;
(f) not make or agree to make any capital expenditures in excess of $10,000 in the aggregate;
(g) not sell, lease, dispose of, convey or transfer or agree to sell, lease, dispose of, convey or transfer any Purchased Assets, except sales from Inventory in the ordinary course of business;
(h) not incur any fixed or contingent obligation or enter into any agreement, commitment or other transaction or arrangement relating to the Business which (i) may not be terminated by Biofluids on 30 days' notice or less without cost or liability, and (ii) which is not in the ordinary course of the Business, and (iii) which is not transferrable or assignable to Purchaser;
(i) use its best efforts to preserve its business organization, retain its employees and preserve good relationships with suppliers, customers and other persons having significant business relationships with the Business;
(j) use its best efforts to keep available for possible retention by Purchaser the services of the Employees;
(k) not enter into any agreement, arrangement or undertaking with respect to any Employee relating to the payment of any bonus, profit-sharing or special compensation or any increase in the compensation payable to an Employee (other than as required by law or contract) if any such operations have been conducted prior payment will be incurred by Purchaser;
(l) maintain in full force and effect all existing insurance policies and keep the Purchased Assets insured in accordance with present practice;
(m) maintain the Purchased Assets in a good condition and state of repair, except for reasonable wear and tear;
(n) not sell, assign, license or transfer or agree to sell, assign, license or transfer (with or without consideration) any of the Intellectual Property Assets or any interest therein;
(o) use its best efforts not to commit any act or omit to do any act which would be or result in a breach of any of its obligations, duties, agreements or representations under any agreement, contract or commitment to which it is a party or to which it enters into subsequent 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 Agreement 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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required in the Ordinary Course of Businesshave a Material Adverse Effect;
(p) Except bear the risk of loss or damage to the Purchased Assets on and prior to the Closing Date, and maintain all properties necessary for the conduct of the Business, whether owned or leased, in substantially the same condition as otherwise contemplated hereunderthey now are, it does reasonable wear and tear excepted; and, in the event that any Purchased Asset is damaged on or prior to the Closing Date by any casualty, Biofluids shall give Purchaser immediate written notice of such damage, and, if such damage or destruction has a Material Adverse Effect on the Business, shall afford Purchaser, in its sole and absolute discretion, the right to cancel, terminate or delay the Closing under this Agreement without further liability.
(q) maintain the books, records and accounts of Biofluids in the usual, regular and ordinary manner, on a basis consistent with prior periods;
(r) not enter into any agreement of any kind or nature with any Affiliate of Biofluids with respect to the Purchased Assets or the Business other than transactions required to give effect to this Agreement;
(s) not enter into any transaction or take perform any other action outside act which would make any of the Ordinary Course of Businessrepresentations, warranties or agreements contained in this Agreement false or misleading in any material respect if made again immediately after such transaction or act; and
(qt) It does not enter into not, directly or indirectly, sell, transfer or otherwise dispose of, solicit any transaction offer for the purchase or take acquisition of, or engage in any negotiations, discussions or agreements with any Person other action that likely than Purchaser the purpose or result of which would cause be the sale, transfer or constitute a Breach disposition of the Business or any representation or warranty made by it Purchased Assets, excepting only sales from Inventory and other dispositions in this Agreementthe ordinary course of business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Biosource International Inc)
Operation of the Business. The Seller or Underlying Asset shall ensure thatBetween the date of this Agreement and the Effective Time, during each of NELX and FSI will conduct its business only in the Pre-Closing Periodordinary course of business, and will:
(a) It conducts not amend 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 Agreementcharter or bylaws;
(b) It uses not increase the compensation or benefits (including, without limitation, salary, bonus and commission schedules) of any personnel, except for non-key management personnel in the ordinary course of business;
(c) use its commercially reasonable best efforts to preserve intact its current business organization, keep available and not terminate the services of its current officers and employees personnel, and maintain its the relations and goodwill good will with all suppliers, customers, landlords, creditors, licensorsemployees, licenseesagents, employees and other Persons others having business relationships with the Underlying Assetit consistent with its sound business judgment and past practices;
(cd) It does not issue or sell any debt or equity securities, (including upon the exercise of currently outstanding options, warrants and other rights) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of its capital stocksecurities, and does not repurchase, or directly or indirectly redeem or otherwise reacquire repurchase any shares outstanding securities, provided that any issuance of its capital stock or other securities;
(d) It does not sell or otherwise issue (or grant any warrants, options or other by FSI pursuant to conversion rights in outstanding notes shall be prohibited only to purchase) any shares of capital stock or any other securitiesthe extent that it would increase the NELX Common Stock to be issued pursuant hereto;
(e) It does not amend its charter documentsell, corporate governance document assign, transfer, convey, lease or other Organizational Documents, and does not affect otherwise dispose of or become a party subject to any recapitalizationEncumbrance any of its assets, reclassification except for sales of sharesinventory and used equipment, stock split, reverse stock split or similar transaction;in each case in the ordinary course of business consistent with past practice
(f) It does not form any subsidiary acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all of the assets of, or otherwise acquire any equity interest material assets or other interest in business of any other Entityperson;
(g) It does not establish or adopt any Employee Benefit Plan, and does not pay any bonus or make any profit sharing loans or similar payment toadvances to any person, or increase except in the amount ordinary course of business nor discharge any debt prior to 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 employeesscheduled maturity thereof;
(h) It does not change make any payment or enter into any agreement or other transaction with any officer or director of its methods of accounting such party, or accounting practices TSA or any Subsidiary, other than employment compensation and benefits on the terms currently in any respecteffect;
(i) It does not make fail to comply in any Tax electionmaterial respect with all Requirements of Law applicable to its business;
(j) It does not commence make any operational changes or take any action or fail to take any action which would result in the commencement developments of any Proceeding;a material nature; and
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into into, amend or amend terminate any agreements pursuant Contract which is or would be required to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required be disclosed in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this AgreementSchedule 6.11 hereto.
Appears in 1 contract
Samples: Merger Agreement (Nelx Inc)
Operation of the Business. The Seller or Underlying Asset DH Group 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 AssetDH Group;
(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, except with respect to the repurchase of shares of DH Group Common Stock upon termination of employees at the original purchase price pursuant to agreements existing at the date hereof;
(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, except the issuance of DH Group Common Stock pursuant to option grants to employees made under the Option Plan in the Ordinary Course of Business;
(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 any loans, advances or capital contributions to, or investments in, any other Person, other than in the Ordinary Course of Business; or (v) fail to maintain insurance consistent with past practices for its business and property;
(l) It pays all debts and Taxes, files all of its Tax Returns (as provided herein) and pays or performs all other obligations, when due;
(m) It does not enter into or amend any agreements pursuant to which any other Person is granted distribution, marketing or other rights of any type or scope with respect to any of its services, products or technology;
(n) It does not hire any new officer-level employee;
(o) It does not revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the Ordinary Course of Business;
(p) Except as otherwise contemplated hereunder, it does not enter into any transaction or take any other action outside the Ordinary Course of Business; and
(q) It does not enter into any transaction or take any other action that likely would cause or constitute a Breach of any representation or warranty made by it in this Agreement.
Appears in 1 contract
Samples: Share Exchange Agreement (Energy Management International Inc)
