Conduct of Business Pending the Closing. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer:
(a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts;
(b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets;
(c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing;
(d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing;
(e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business;
(f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice;
(g) make or rescind any m...
Conduct of Business Pending the Closing. The Company covenants and agrees that, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries to, (i) conduct its business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice; (iv) use its reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except as expressly contemplated by this Agreement or as set forth on Section 6.1 of the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayed:
(a) amend the Certificate of Incorporation or bylaws or other organizational documents except as contemplated by this Agreement;
(b) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings in the ordinary course of business as permitted under the Credit Agreement;
(c) make any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its ...
Conduct of Business Pending the Closing. From the date hereof until the Closing Date, except as otherwise approved in writing by the Buyer, which approval shall not be unreasonably withheld:
Conduct of Business Pending the Closing. Sagebrush covenants and agrees with WSMP that, prior to the Closing, unless WSMP shall otherwise consent in writing and except as otherwise contemplated by this Agreement or Section 6.7 of the Sagebrush Disclosure Document:
(a) its business and the business of its Subsidiaries will be conducted in the ordinary and usual course, it shall use reasonable efforts to keep intact its and their business organizations and goodwill, and it shall use reasonable efforts to keep available the services of their respective officers and employees and maintain good relationships with suppliers, lenders, creditors, distributors, employees, customers and others having business or financial relationships with them;
(b) it will continue properly and promptly (1) to file when due all periodic reports and other documents required to be filed by it with the SEC and all federal, state, local, foreign and other tax returns, reports and declarations required to be filed by it (except where the failure to file any such tax returns, reports or declarations would not be reasonably likely to have a Material Adverse Effect on Sagebrush) and (2) to pay, or make full and adequate provision for the payment of, all taxes and governmental charges due from or payable by it, except for such taxes and charges the failure to make prompt payment of which is not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect on Sagebrush;
(c) it will not (1) amend or restate its charter or bylaws or (2) split, combine or reclassify any of its securities, or declare, set aside or pay any dividend or other distribution on any of its securities, or make or agree or commit to make any exchange for or redemption of any of its securities payable in cash, stock or property;
(d) neither it nor any of its Subsidiaries will, in any such case, (1) issue or agree to issue any additional shares of, or options, warrants or other rights of any kind to acquire any shares of, its capital stock of any class, whether by purchase or conversion or exchange of other securities, except that Sagebrush may issue shares upon the exercise of options, warrants, convertible securities and other rights, agreements and commitments outstanding at the date hereof, or (2) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(e) neither it nor any of its Subsidiaries will create, incur, assume or guarantee any long-term indebtedness for borrowed money or, except ...
Conduct of Business Pending the Closing. The Sellers agree that from the date hereof until the Closing, except as otherwise approved in writing by Purchaser:
Conduct of Business Pending the Closing. 5.1 Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date:
(a) The Company shall conduct its business and operations only in the usual and ordinary course of business;
(b) The Company shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend its Articles of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(c) The Company shall not, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof, (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) The Company shall not enter into any employment, severance or similar agreements or arrangements with, or grant any bonus, salary increase, severance or termination pay to, any officers or directors;
(e) The Company shall not adopt any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee;
(f) The Company shall (i) use its best efforts not to take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue at any time prior to the Closing Date as if then made; and
Conduct of Business Pending the Closing. Except with the prior written consent of Sunstone Parties and except as may be expressly permitted by this Agreement, prior to the Closing, each of Management and Lessee shall, and Lessee shall cause each Lessee Subsidiary, and Alter and Biedxxxxx xxxll, and shall cause Lessee and each Lessee Subsidiary and, in the case of Alter, Management to, operate its business only in the usual, regular and ordinary manner, on a basis consistent with past practice and, to the extent consistent with such operation, use its reasonable best efforts to preserve its present business organization intact, keep available the services of its present employees, preserve its present business relationships and maintain all rights, privileges and franchises necessary or desirable in the normal conduct of those businesses. Without limitation of the foregoing, prior to the Closing, except as expressly permitted by this Agreement, each of Management and Lessee shall not, and Lessee shall cause each Lessee Subsidiary, and Alter and Biedxxxxx xxxll not, and shall cause Lessee and each Lessee Subsidiary and, in the case of Alter, Management not to:
(a) amend its Certificate of Incorporation or Bylaws;
(b) issue, purchase or redeem, or authorize or propose the issuance, purchase or redemption of, or declare or pay any dividend with respect to, any shares of its capital stock or any class of securities convertible into, or rights, warrants or options to acquire, any such shares of other convertible securities, except for dividends on the capital stock of Management and Lessee which do not exceed $500,000 in the aggregate since December 31, 1998;
(c) form any partnership, limited liability company or other joint venture (other than in the ordinary course consistent with past practice of such business), acquire or dispose of any business (whether by merger, purchase or otherwise) or of any assets (other than in the ordinary course consistent with past practice of such business) or acquire or dispose of any investment in any Person;
(d) make or incur any capital expenditures other than in the ordinary course of business consistent with past practice and in no event in excess of $20,000 individually or $200,000 in the aggregate;
(e) enter into any transaction involving the incurrence, assumption or guarantee of indebtedness other than in the ordinary course of business consistent with past practice;
(f) enter into any agreement of the type described in Sections 4.1(i), 4.1(j)(ii) through (v) ...
Conduct of Business Pending the Closing. Prior to the Closing,
(a) Sellers shall, and shall cause the Companies to (A) conduct the respective businesses of the Companies only in the ordinary course of business consistent with past practice, and (B) use commercially reasonable efforts to (1) preserve the present business operations, organization and goodwill of the Companies, and (2) preserve the present relationship with Persons having material business dealings with the Companies, and (C) make capital expenditures in accordance with its annual budget previously provided to Purchaser, provided that nothing in this Section 6.2(a) shall prevent the Companies from (x) paying dividends or other cash transfers or payments to or on behalf of any Seller or any of its Affiliates, or (y) repaying any Indebtedness.
(b) Without limiting the generality of the foregoing except: (i) as set forth on Schedule 6.2 hereto, (ii) as expressly contemplated by the Seller Documents, (iii) as required by applicable Law, or (iv) with the prior written consent of Purchaser (not to be unreasonably withheld), Sellers shall not, and shall cause the Companies not to:
(i) transfer, issue, sell or dispose of any shares of capital stock or other securities of any Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of any Company;
(ii) effect any recapitalization, reclassification, stock split or other change in the capitalization of any Company;
(iii) enter into any new line of business, discontinue any line of business or amend the certificate of incorporation or by-laws (or comparable organizational documents) of any Company;
(iv) except for (A) trade payables in the ordinary course of business, and (B) amounts that will be repaid at or prior to the Effective Time, incur or increase any Indebtedness (other than Indebtedness that will be paid off at or prior to Closing), or become the guarantor, surety, endorser or otherwise liable (whether directly, contingently or otherwise) for any debt, obligation or liability (contingent or otherwise) of any other Person (except for another Company);
(v) subject any of the properties or assets (whether tangible or intangible) of any Company to any Lien (except for Permitted Exceptions) that will not be removed at or prior to Closing;
(vi) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any properties, assets or equity interests in any Person, or sell, assign, transfer, con...
Conduct of Business Pending the Closing. From the date hereof until the Closing, and except as otherwise consented to by AmSurg in writing, Seller shall not:
(a) fail to maintain in effect adequate insurance coverage of the Purchased Assets; or
(b) fail to use its best efforts to (i) maintain the Purchased Assets in their present condition, (ii) comply with all applicable laws, rules and regulations of governmental agencies or authorities, and (iii) operate its business in the manner necessary to maintain the good will of its patients and physicians and its reputation.
Conduct of Business Pending the Closing. Between the date hereof and the Closing, and except as otherwise consented to by Buyer in writing, Seller covenants as follows:
