CONDUCT OF COMPANY PENDING CLOSING. Except as set forth on Schedule 6.2, during the period commencing with the date hereof and ending on the Closing Date (or, if earlier, the date of termination of this Agreement), Company shall (and shall ensure that each of its Subsidiaries shall) carry on its business in the ordinary course in substantially the same manner as conducted on and immediately prior to the date of this Agreement, except as may be otherwise approved in writing by Acquirer. In furtherance of the foregoing covenant and without limiting it in any way: Company shall (and shall ensure that each of its Subsidiaries shall), during the period specified in the immediately preceding sentence, use its commercially reasonable best efforts to (a) preserve intact Company’s and its Subsidiaries’ business, assets, goodwill and Company’s and its Subsidiaries’ relationships with clients, customers, suppliers and service providers, in each case in substantially the same manner as Company and each Subsidiary did prior to the date hereof, and (b) retain the services of Company’s present employees. Company shall not (and shall ensure that each of its Subsidiaries shall not), during the period specified in the first sentence of this Section 6.2, (i) enter into any commitment or transaction not in the ordinary course of business, (ii) transfer or license to any Person any rights to any of Company’s or any of its Subsidiaries’ Proprietary Rights, except in the ordinary course of business, (iii) commence a lawsuit or other legal proceeding other than for the routine collection of bills or to protect assets of Company or its Subsidiaries, (iv) declare or pay any non-cash dividends on or make any other non-cash distributions (whether in cash or property) in respect of any of its capital stock, issue, assign, sell or transfer any securities of Company or any right to acquire from Company any securities of Company, or consent or permit any of the foregoing, or repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other securities, (v) sell, lease, license or otherwise dispose of any of Company’s or its Subsidiaries’ properties or assets except in the ordinary course of business, (vi) change, in any way, Company’s or its Subsidiaries’ method of operating its business or its accounting practices relating thereto, (vii) modify, waive, change or amend any provision of the Company’s Charter or Bylaws, (viii) modify, waive, change, amend, release, rescind, make an accord and satisfaction of, or terminate any Contract or any term, condition, or provision thereof, other than by satisfying any such Contract by performance in accordance with the terms thereof in the ordinary course of business consistent with prior practice, (ix) allow any of the Company’s or its Subsidiaries’ assets to become subject to any lien, (x) commit any act or omission that might materially impair or jeopardize Acquirer’s use or ownership of any of the Company’s or its Subsidiaries’ assets or its pursuit of its business after the Closing Date, (xi) amend, modify or waive any rights under any confidentiality or non-disclosure agreement concerning the Company or its Subsidiaries, (xii) terminate any employee of the Company or any of its Subsidiaries without cause, or (xiii) take, or agree in writing or otherwise to take, any of the actions described in any of clauses (i) through (xii) above. Seller and Parent shall make commercially reasonable efforts to ensure that Company complies with all of its obligations under this Section 6.2.
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Sources: Stock Acquisition Agreement (Active Network Inc), Stock Acquisition Agreement (Active Network Inc)
CONDUCT OF COMPANY PENDING CLOSING. Except Seller and Company covenant and agree that, except (i) as set forth on Schedule 6.2expressly required by this Agreement; (ii) as disclosed in the Company Disclosure Schedules or (iii) with the prior written consent of Buyer, during the period commencing with after the date hereof and ending on the Closing Date (or, if earlier, the date of termination of this Agreement), Company shall (and shall ensure that each of its Subsidiaries shall) carry on its business in the ordinary course in substantially the same manner as conducted on and immediately prior to the date of this Agreement, except as may be otherwise approved in writing by Acquirer. In furtherance of the foregoing covenant and without limiting it in any way: Company shall (and shall ensure that each of its Subsidiaries shall), during the period specified in the immediately preceding sentence, use its commercially reasonable best efforts to Closing Date:
(a) preserve intact Company’s and its Subsidiaries’ business, assets, goodwill and Company’s and its Subsidiaries’ relationships with clients, customers, suppliers and service providers, in each case in substantially the same manner as Company and each Subsidiary did prior to the date hereof, and (b) retain the services of Company’s present employees. Company Business shall not (and shall ensure that each of its Subsidiaries shall not), during the period specified in the first sentence of this Section 6.2, (i) enter into any commitment or transaction not in the ordinary course of business, (ii) transfer or license to any Person any rights to any of Company’s or any of its Subsidiaries’ Proprietary Rights, except in the ordinary course of business, (iii) commence a lawsuit or other legal proceeding other than for the routine collection of bills or to protect assets of Company or its Subsidiaries, (iv) declare or pay any non-cash dividends on or make any other non-cash distributions (whether in cash or property) in respect of any of its capital stock, issue, assign, sell or transfer any securities of Company or any right to acquire from Company any securities of Company, or consent or permit any of the foregoing, or repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other securities, (v) sell, lease, license or otherwise dispose of any of Company’s or its Subsidiaries’ properties or assets except in the ordinary course of business, (vi) change, in any way, Company’s or its Subsidiaries’ method of operating its business or its accounting practices relating thereto, (vii) modify, waive, change or amend any provision of the Company’s Charter or Bylaws, (viii) modify, waive, change, amend, release, rescind, make an accord and satisfaction of, or terminate any Contract or any term, condition, or provision thereof, other than by satisfying any such Contract by performance in accordance with the terms thereof be conducted only in the ordinary course of business consistent with prior past practice;
(b) Company will not amend its Certificate of Incorporation or bylaws;
(c) Company shall not (i) split, combine or reclassify its capital stock; (ii) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to the Stock; (iii) issue or sell any additional shares of, or securities convertible into or exchangeable for shares of, or options, warrants, calls, commitments or rights of any kind to acquire any shares of, its capital stock or (iv) redeem, purchase or otherwise acquire directly or indirectly any shares of its capital stock;
(d) Company shall not (i) adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase plan) or amend any existing employee benefit plan, except as may be required by applicable Law or (ii) increase any compensation of or enter into or amend any employment, severance, termination or similar agreement with any of its present or future officers or directors, except for normal increases in the ordinary course of business and the payment of cash bonuses to employees pursuant to and consistent with existing plans, practices or programs;
(e) Company shall not, except in the ordinary course of business consistent with past practice, acquire, sell, lease or dispose of any assets of Company;
(ixf) allow Company shall not: (i) incur or assume any long-term or short-term debt for borrowed money or issue any debt securities, except for borrowings under existing lines of credit in the ordinary course of business; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of any other Person; (iii) make any loans, advances or capital contributions to, or investments in, any other Person other than employee expense advances in the ordinary course of business, or (iv) mortgage or pledge any of its assets, tangible or intangible, or create any Encumbrance with respect to any such asset;
(g) Company shall not acquire (by merger, consolidation or acquisition of stock or assets) any Person or division thereof or any equity interest therein;
(h) Company shall not adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(i) Company shall not change any of the Company’s accounting methods used by it unless required by GAAP or its Subsidiaries’ assets applicable Law;
(j) Company shall not terminate, modify or amend any Material Contract, or enter into any Contract after the date hereof that, if in effect on the date hereof, would have been a Material Contract as defined in Section 3.5(a) hereof;
(k) Company shall not make any capital expenditures, capital additions or capital improvements, in excess of $25,000 in the aggregate;
(l) Company shall not terminate or expressly waive any right of substantial value, other than in the ordinary course of business consistent with past practice;
(m) Company will not initiate any litigation or arbitration proceeding; and
(n) Company will not authorize or enter into an agreement to become subject to any lien, (x) commit any act or omission that might materially impair or jeopardize Acquirer’s use or ownership of do any of the Company’s or its Subsidiaries’ assets or its pursuit of its business after the Closing Date, (xi) amend, modify or waive any rights under any confidentiality or non-disclosure agreement concerning the Company or its Subsidiaries, (xii) terminate any employee of the Company or any of its Subsidiaries without cause, or (xiii) take, or agree in writing or otherwise to take, any of the actions described in any of clauses (i) through (xii) above. Seller and Parent shall make commercially reasonable efforts to ensure that Company complies with all of its obligations under this Section 6.2foregoing.
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