Conduct of the Business Pending the Closing Clause Samples
POPULAR SAMPLE Copied 1 times
Conduct of the Business Pending the Closing. (a) From the date hereof through the earlier of the Closing or the termination of this Agreement (the “Interim Period”), except (i) as set forth in Section 6.01 of the Disclosure Letter, (ii) as required by applicable Law, (iii) as expressly contemplated by this Agreement or the other Transaction Documents, (iv) subject to Section 6.01(d), as a result of the COVID-19 Measures or (v) with the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall, and shall cause its Subsidiaries to, (A) conduct their business in the Ordinary Course of Business, in all material respects, and (B) use commercially reasonable efforts to (1) preserve substantially intact their business organization and assets in all material respects; (2) preserve their current relationships with customers, suppliers, and other persons with which they have significant business relations; and (3) keep and maintain their assets and properties in substantially the same condition as they exist as of the date of this Agreement, ordinary wear and tear excepted; provided, that no action by the Company or any of its Subsidiaries with respect to matter specifically addressed by Section 6.01(b) shall be deemed to be a breach of this Section 6.01(a) unless such action would constitute a breach of Section 6.01(b).
(b) During the Interim Period, except (v) as set forth in Section 6.01 of the Disclosure Letter; (w) as required by applicable Law; (x) as expressly contemplated by this Agreement or the other Transaction Documents; (y) subject to Section 6.01(d), as a result of the COVID-19 Measures; or (z) with the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall not and shall cause its Subsidiaries not to:
(i) transfer, grant, issue, sell, authorize, encumber or dispose of any Equity Interests of the Company or any of its Subsidiaries or any options, warrants, convertible securities calls or other rights to purchase or otherwise acquire Equity Interests of, or any stock appreciation, phantom stock or other similar right with respect to, the Company or any of its Subsidiaries;
(ii) effect any recapitalization, or otherwise reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Equity Interests of the Company or any of its Subsidiaries, or make any other similar change in the capitalization of the Company o...
Conduct of the Business Pending the Closing. (a) From the date hereof and until the Closing (the “Pre-Closing Period”), except (A) as set forth on Schedule 7.2(a), (B) as required by applicable Law, including any Applicable Competition Laws, (C) as otherwise expressly contemplated by this Agreement (including as set forth on Schedule 7.21), (D) as the Acquired Company reasonably determines to be necessary or appropriate to address the COVID-19 pandemic (provided that Seller gives reasonable advance notice of such action to Purchaser and that, subject to requirements imposed by Law applicable for a particular business location, such action is taken in a manner consistent with policies and procedures applicable to all similarly situated businesses of Seller Parent and its Subsidiaries), (E) with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned):
(i) Seller shall, and shall cause the Acquired Company and if applicable with respect to the Business, its Affiliates, to:
(A) conduct the Business only in the Ordinary Course of Business;
(B) use their respective commercially reasonable efforts to preserve their current operations, organization and goodwill, including their Intellectual Property and current relationships with customers, suppliers and key employees, in each case, to the extent related to the Business (it being understood that such efforts will not include any requirement or obligation to pay any consideration not otherwise required to be paid by the terms of an existing Contract or to offer or grant any financial accommodation or other benefit not otherwise required to be made by the terms of an existing Contract); and
(C) use their commercially reasonable efforts to implement the capital projects listed on Schedule 7.2(a)(i)(C) substantially in accordance with the quarterly capital expenditure forecast set forth on such Schedule 7.2(a)(i)(C), subject to such changes and delays that ordinarily arise in connection with projects of such nature; and
(ii) Seller shall not, and shall cause the Acquired Company and, if applicable with respect to the Business, its Affiliates not to:
(A) declare, set aside, make or ay any dividend or other distribution (including any constructive dividend) in respect of the Acquired Company Equity Interests or repurchase, redeem or otherwise acquire any outstanding Equity Securities in the Acquired Company (other than cash dividends or distributions declared and paid prior to 11:59 pm ET prior to the Closi...
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, between the date hereof and the Closing, the Company shall:
(i) conduct the Business only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);
(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company;
(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan;
(vi) comply in all material respects with all applicable Laws;
(vii) take steps to renew all Permits in a timely manner prior to their lapse; and
(viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company.
(b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not:
(i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, ...
Conduct of the Business Pending the Closing. (a) Prior to the Closing or earlier termination of this Agreement, except (i) as required by applicable Law, (ii) as otherwise expressly contemplated by this Agreement, or (iii) with the prior written consent of Buyer, the Company shall, and shall cause the Subsidiaries to, conduct the respective businesses of the Company and the Subsidiaries only in the Ordinary Course of Business and shall use their reasonable efforts to preserve intact the present business organization, assets, properties and goodwill of the Company and the Subsidiaries and their respective relationships with key customers, key suppliers, key employees and other Persons having material business dealings with the Company and the Subsidiaries.
(b) Prior to the Closing or earlier termination of this Agreement, except (i) as required by applicable Law, (ii) as otherwise contemplated by this Agreement, or (iii) with the prior written consent of Buyer, the Company shall not, and shall cause the Subsidiaries not to:
(i) transfer, issue, encumber, sell or dispose of or mortgage, pledge or subject to any Lien, any shares of capital stock or other securities of the Company or any of the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of the Subsidiaries;
(ii) effect any recapitalization, reclassification, stock split, combination or like change in the capitalization of the Company or any of the Subsidiaries or amend the terms of any outstanding securities of the Company or any of the Subsidiaries;
(iii) declare, set aside or pay any dividend or distribution with respect to any of its Common Stock;
(iv) amend the Certificate of Incorporation, the Bylaws, or organizational documents of any of the Subsidiaries;
(v) other than as required by Law or Company Benefit Plan, (A) increase the annual level of compensation of any director or employee whose current annual base compensation exceeds $75,000 of the Company or any of the Subsidiaries, (B) grant any bonus or other direct or indirect compensation to any director or employee that exceeds $10,000, (C) materially increase the coverage or benefits available under any Company Benefit Plan, except for increases that do not materially increase the obligations of Buyer and its Affiliates (including the Company after the Closing Date), (D) enter into any employment, deferred compensation, severance, consulting, or similar agreement with any ...
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or with the prior written consent of Purchaser, the Sellers shall:
(i) conduct the Business only in the Ordinary Course of Business;
(ii) use their best efforts to (A) preserve their present business operations and organization (including their management and sales force) and the goodwill of the Sellers and the Business and (B) preserve and maintain the Purchased Assets and the Business’s rights, relationships, Contracts and goodwill of its customers, lenders, suppliers, regulators, vendors, service providers, personnel and others having business relations with it;
(iii) maintain (A) all of the assets and properties of the Sellers and the Business in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the assets and properties of the Sellers and the Business in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the Documents in the Ordinary Course of Business and (B) continue to collect Accounts Receivables and pay accounts payable of the Business in the Ordinary Course of Business;
(v) notify the Purchaser promptly (and in all cases, no later than forty-eight (48) hours) in the event a Key Customer or Key Vendor threatens or notifies the Sellers of its intention to terminate or otherwise modify its relationship with the Business, and in such case, the Sellers shall consult with Purchaser with respect to such Key Customer or Key Vendor;
(vi) comply in all material respects with applicable Laws; and
(vii) not take any action which would adversely affect the ability of the Parties to consummate the Transactions other than in connection with marketing the Business to other potential bidders.
(b) Except as otherwise expressly contemplated by this Agreement (including the prosecution of the Bankruptcy Cases and sale process contemplated therein) or as otherwise set forth in Section 8.2(b) of the Disclosure Schedule, without the prior written consent of Purchaser, the Sellers shall not:
(i) issue, create, incur, assume or guarantee any indebtedness, other than pursuant to the Terms and Conditions of Proposed Senior Secured, Super-Priority Debtor-in-Possession Credit Facility, by and among the Sellers and SWK Funding LLC dated as of October 1, 2024;
(ii) acquire any properties or assets (other than inventory in the Ordi...
Conduct of the Business Pending the Closing. (a) Prior to the Closing, except (1) as set forth on Schedule 8.2(a), (2) as required by applicable Law, (3) as otherwise expressly contemplated by this Agreement or (4) with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), Sellers shall conduct the Business in the Ordinary Course of Business, and:
(i) maintain the Purchased Assets in good operating condition and repair and continue normal maintenance, normal wear and tear excepted; and
(ii) use their commercially reasonable efforts to (A) preserve the present business operations, organization and goodwill of the Business, and (B) preserve the present relationships with customers and suppliers of the Business.
(b) Except (1) as set forth on Schedule 8.2(b), (2) as required by applicable Law, (3) as otherwise contemplated by this Agreement or (4) with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), Sellers shall not, solely as it relates to the Business:
(i) increase salaries or wages, declare bonuses, increase benefits, or institute any new benefit plan or program, except as required by law, as required by the terms of previously existing contracts, or in accordance with past practices;
(ii) sell, lease, transfer, mortgage, encumber, alienate or dispose of any Purchased Assets except for sales of Inventory, Permitted Exceptions, and normally scheduled store closings;
(iii) transfer any inventory into any of the stores that are subject to the Real Property Leases from any store that is not subject to the Real Property Leases; and
(iv) agree to do anything prohibited by this Section 8.2.
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, prior to the Closing the Sellers shall, and shall cause TECHTOM to:
(i) Conduct the business of TECHTOM only in the ordinary course consistent with past practice;
(ii) Use its best efforts to (A) preserve its present business operations, organization (including, without limitation, management and the sales force) and goodwill of TECHTOM and (B) preserve its present relationship with parties having business dealings with TECHTOM; and
(iii) Comply in all material respects with applicable laws.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, prior to the Closing the Sellers shall not, and shall cause TECHTOM not to:
(i) Transfer, issue, sell or dispose of any shares of capital stock or other securities of TECHTOM or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of TECHTOM;
(ii) Amend any of the formation documents of TECHTOM;
(iii) Subject to any lien (except for leases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the properties or assets (whether tangible or intangible) of TECHTOM;
(iv) Acquire any material properties or assets or sell, assign, transfer, convey, lease or otherwise dispose of any of the material properties or assets (except for fair consideration in the ordinary course of business consistent with past practice) of TECHTOM;
(v) Enter into any commitment for capital expenditures out of the ordinary course;
(vi) Permit TECHTOM to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(vii) Permit TECHTOM to enter into or agree to enter into any merger or consolidation with any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to or otherwise acquire the securities of any other party;
(viii) Agree to do anything prohibited by this Section 6.2 or anything which would make any of the representations and warranties of the Sellers in this Agreement or any other agreement referenced herein untrue or incorrect in any material respect as of any time through and including the Closing.
Conduct of the Business Pending the Closing. Except as otherwise contemplated by this Agreement (including the information on the exhibits and schedules attached hereto), except with the prior written consent of Buyer, and except for any actions or omissions that would not be expected to have a Material Adverse Effect, during the period from the date hereof to and through the Closing Date, Sellers shall, subject to the limitations imposed on Sellers as a result of having filed the Bankruptcy Cases, conduct the Business in all material respects in the Ordinary Course of Business and in compliance with Applicable Law, and preserve in all material respects the present business operations, organization and goodwill of the Business; and without limiting the generality of the foregoing, from the date hereof until the Closing Date, subject to the foregoing exceptions, Sellers shall not (a) change any method of accounting or accounting practice used by them, except for any change required by generally accepted accounting principles, (b) establish or increase the benefits under, or promise to establish, modify or increase the benefits under, any employee benefit plan or otherwise increase the compensation payable to any Foods Employee, except in the Ordinary Course of Business or otherwise in accordance with existing plans and agreements consistent with past practice, or establish, adopt or enter into any collective bargaining agreement, (c) obtain any rulings or make any elections with respect to Taxes, or enter into any agreements with any taxing authority in the event the same could materially and adversely impact the Business, (d) merge or consolidate with any other Person or acquire a material amount of assets of any other Person, (e) except in the Ordinary Course of Business, lease, license or otherwise surrender, relinquish, encumber, or dispose of any Transferred Assets other than the disposition of obsolete or damaged immaterial Transferred Assets, (f) fail to maintain Inventory to and including the Closing Date of a quality usable and salable in the Ordinary Course of Business (which takes into account normal levels of damaged, short dated, obsolete or outdated goods or supplies), and in quantities in accordance with the Ordinary Course of Business and adjusted for seasonality, (g) create accounts receivable to be included among the Transferred Assets other than those arising from bona fide transactions in the Ordinary Course of Business, or (h) establish accounts payable to be included among the As...
Conduct of the Business Pending the Closing. During the period from the date of this Agreement to the Closing, except as otherwise specifically contemplated by this Agreement or, with respect to Sections 5.01(a), (b), (c), (d), (f), (g), (j), (n), (o), (p), (q), (t) or (u) (but only with respect to the foregoing subsections), with the consent of a majority of the members of the Committee, Seller and Parent shall cause the Acquired Company and the Subsidiaries to (i) conduct their business and operations in the ordinary course consistent with past practice, and (ii) use commercially reasonable efforts to preserve intact the Acquired Company’s and each Subsidiary’s present business organization and to preserve the good will and relationships with current customers, suppliers and others having significant business dealings with the Acquired Company and the Subsidiaries. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Closing or termination of this Agreement, except as otherwise specifically provided for in this Agreement or, with respect to Sections 5.01(a), (b), (c), (d), (f), (g), (j), (n), (o), (p), (q), (t) or (u) (but only with respect to the foregoing subsections), with the consent of a majority of the members of the Committee, Seller and Parent shall cause the Acquired Company and the Subsidiaries not to:
(a) commence or enter into arrangements for any capital expenditure, except for such expenditures that are substantially consistent with and do not exceed the quarterly allocations in the Capital Budget commencing September 1, 2004;
(b) dispose of any Assets except in the ordinary course of business consistent with past practice and in any event not having a book value or fair market value, individually or in the aggregate, in excess of $5,000,000;
(c) enter into any hedging arrangement or derivative transaction;
(d) enter into any Contract except in the ordinary course of business consistent with past practice and in any event not in excess of $5,000,000 or that has a term of, or requires the performance of any obligations over a period in excess of, three years; provided, however, that the Acquired Company and the Subsidiaries shall not be prohibited from participating in bidding for or entering into Contracts with any Authority or other third-party for the provision of services of the type currently provided by the Acquired Company and the Subsidiaries in the conduct of the Business;
(e) incur or assume indebtedness for borrowed money...
Conduct of the Business Pending the Closing. During the Interim Period, except (a) as set forth in the corresponding section of Section 6.02 of the Company Disclosure Schedules; (b) as required by applicable Law; (c) as otherwise expressly required by this Agreement (including the Internal Restructuring) or the other Transaction Documents; or (d) with the prior consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), the Acquired Companies shall not, and Seller and the Company shall cause the Acquired Companies to not:
(i) transfer, issue, grant, deliver, sell, authorize, encumber, propose, enter into or dispose of (i) any Equity Interests of any Acquired Company, (ii) any options, warrants, calls or other rights to purchase or otherwise acquire Equity Interests of any Acquired Company, or any rights or other securities or instruments convertible into, or exchangeable or exercisable for, any of the foregoing, (iii) any stock appreciation, phantom stock or other similar right with respect to any Acquired Company or (iv) any Contracts obligating an Acquired Company to issue any Equity Interests of any Acquired Company;
(ii) effect any recapitalization, reclassification, equity split or any other similar change in the capitalization of any Acquired Company;
(iii) declare, set aside or pay any dividend or other distribution in respect of its Equity Interests, or redeem or purchase any of its Equity Interests or change any rights, preferences or privileges of any of its outstanding Equity Interests, except for cash distributions required by the Organizational Documents of the Company or any Subsidiary of the Company that is wholly owned by the Company that are paid in full prior to the time at which Closing Cash is measured.
(iv) (A) adopt a plan of complete or partial liquidation, dissolution, consolidation, reorganization, restructuring, merger or other reorganization with respect to any Acquired Company, or allow any of the foregoing to occur, or (B) file a petition in bankruptcy under any provisions of any applicable bankruptcy Law on behalf of any Acquired Company or consent to the filing of any bankruptcy petition against any Acquired Company under any similar Law;
(v) amend the Organizational Documents of any Acquired Company (including by merger, consolidation or otherwise);
(vi) (A) make any change in the accounting period or any method, principles or practices of the accounting of any Acquired Company (including any change in depreciation, amortization, cash m...