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, the Representing Sellers shall, and shall cause the Company to: (i) conduct the business of the Company 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 the Company and (B) preserve its present relationship with Persons having business dealings with the Company; (iii) maintain (A) all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (A) maintain the books, accounts and records of the Company in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company; and (v) comply in all material respects with applicable laws, including, without limitation, Environmental Laws. (b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, the Representing Sellers shall not, and shall cause the Company not to: (i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company; (ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company; (iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company; (iv) amend the certificate of incorporation or by-laws of the Company; (A) materially increase the annual level of compensation of any employee of the Company, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, director or consultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (D) 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, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which the Company is a party or involving a director, officer or employee of the Company in his or her capacity as a director, officer or employee of the Company; (vi) except for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person; (vii) 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 the Company; (viii) 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 the Company; (ix) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business consistent with past practice; (x) enter into any commitment for capital expenditures of the Company in excess of $1,000 for any individual commitment and $5,000 for all commitments in the aggregate; (xi) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company; (xii) introduce any material change with respect to the operation of the Company, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products; (xiii) permit the Company 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; (xiv) permit the Company 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 Person; (xv) except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with, any Seller or any Affiliate of any Seller; or (xvi) agree to do anything prohibited by this Section 7.2 or anything which would make any of the representations and warranties of the Representing Sellers in this Agreement or the Seller Documents untrue or incorrect in any material respect as of any time through and including the Effective Time.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except During the period from the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VII, except (i) as otherwise required by applicable Law, (ii) as instructed or required by a Governmental Authority, (iii) as expressly required or contemplated by the terms of this Agreement Agreement, or with (iv) to the extent Purchaser otherwise provides its prior written consent of the Purchaserin writing (such consent not to be unreasonably withheld, the Representing Sellers shalldelayed or conditioned), Parent and Seller shall cause the Company to:to comply with this Agreement, and otherwise ensure that (x) the Company shall conduct its business in the ordinary course of business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to preserve its business organization intact and maintain existing relations and goodwill with Governmental Authorities, rating agencies, customers, reinsurers, producers, insureds, suppliers, service providers and employees, and (y) except as set forth in Section 5.01(a) of the Parent Disclosure Schedule, the Company shall not (it being understood that no act or omission with respect to the matters specifically addressed by any provision of this clause (y) shall be deemed to be a breach of clause (x)):
(i) conduct (A) authorize for issuance, issue, sell, grant or subject to any Lien any shares of capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the business right to subscribe for any shares of the Company only in the ordinary course consistent with past practicecapital stock, or any rights, warrants or options to purchase any shares of capital stock or (B) redeem, purchase or otherwise acquire any of its shares of capital stock, or any rights, warrants or options to acquire any shares of capital stock;
(ii) use its best efforts to split, combine, subdivide, reclassify, redeem, purchase or otherwise acquire, directly or indirectly, any shares of capital stock;
(Aiii) preserve its present business operationsother than this Agreement and any Ancillary Agreements, organization (includingadopt a plan or agreement of complete or partial liquidation or dissolution, without limitationmerger, management and the sales force) and goodwill consolidation, restructuring, recapitalization or other reorganization of the Company and (B) preserve its present relationship with Persons having business dealings with the Company;
(iiiiv) maintain (A) all except for the payment of the assets and properties Closing Dividend, declare, make, set aside, authorize or pay any dividends or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, stock or other securities or otherwise) or (B) incur, issue, assume, guarantee or otherwise become liable for any Indebtedness (other than (1) all obligations with respect to the net current Tax liabilities of the Company that are allocable to any taxable year (or portion thereof) ending on (and including), or prior to, the Closing Date (treating for purposes of this Agreement the taxable year of the Company that includes the Closing Date as closing on (and including) the Closing Date); (2) all Liabilities with respect to accrued but unpaid bonus payments, accrued or owed by the Company as of the Closing in their current conditionrespect of any performance period (or portion thereof) prior to and up to the Closing, together with the employer portion of any Taxes arising therefrom; and (3) all Liabilities with respect to accrued but unused vacation time, flexible time-off and sick pay to which any Business Employee is entitled pursuant to the policies applicable to such Business Employee immediately prior to the Closing) or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company;
(v) amend, restate, supplement or otherwise modify its Organizational Documents;
(vi) (A) other than in the ordinary wear and tear excepted and course of business consistent with past practice, amend, modify, extend, cancel, rescind, waive any rights under, assign, fail to renew or terminate any operating leases or subleases (or group of related operating leases or subleases with respect to a single transaction or series of related transactions) under which the Company leases or occupies Leased Real Property or (B) insurance upon all enter into any new operating leases or subleases (or group of the properties and assets related operating leases or subleases with respect to a single transaction or series of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementrelated transactions) for leased real property;
(vii) sell, lease, license or otherwise dispose of any of its material properties (other than Intellectual Property), rights, licenses, operations, product lines, businesses or assets with a purchase price for such material properties, rights, licenses, operations, product lines, businesses or assets, except (A) maintain the books, accounts sales and records licenses of products and services of the Company in the ordinary course of business consistent with past practicespractice, (B) continue to collect accounts receivable sales and pay accounts payable utilizing normal procedures and without discounting or accelerating payment dispositions of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company; and
(v) comply in all material respects with applicable laws, including, without limitation, Environmental Laws.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, the Representing Sellers shall not, and shall cause the Company not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the annual level of compensation of any employee of the Company, (B) increase the annual level of compensation payable or to become payable investment assets by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, director or consultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (D) 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, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which the Company is a party or involving a director, officer or employee of the Company in his or her capacity as a director, officer or employee of the Company;
(vi) except for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person;
(vii) 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 the Company;
(viii) 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, (C) pursuant to any insurance or reinsurance Contracts in the ordinary course of business consistent with past practice or (D) pursuant to Material Contracts in force on the Companydate hereof;
(ixviii) cancel make any loan, advance, guarantee or compromise capital contribution to or investment in any debt Person, except advances to employees for expenses not to exceed $1,000 in any single instance or claim or waive or release any material right in excess of $20,000 in the Company except aggregate in the ordinary course of business consistent with past practice;
(ix) engage in any transactions with respect to investment assets by the Company outside the ordinary course of business consistent with past practice, other than with respect to the liquidation of investment assets pursuant to Section 5.14 or to the extent otherwise agreed by Purchaser in writing as to any particular investment asset;
(x) enter into make or authorize any commitment for capital expenditures of the Company in excess of $1,000 for 2,500 in any individual commitment and single instance or in excess of $5,000 for all commitments 50,000 in the aggregateaggregate during any twelve (12) month period;
(xi) enter intosell, modify transfer, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or terminate allow to lapse or expire or otherwise dispose of any labor material Company Intellectual Property or collective bargaining agreement material Company IT Assets, other than (A) in the ordinary course of business consistent with past practice, (B) pursuant to Contracts in force on the Company or, through negotiation date hereof and made available to Purchaser on or otherwise, make any commitment or incur any liability to any labor organization with respect prior to the Companydate hereof, and (C) dispositions of obsolete or worn-out IT Assets;
(xii) introduce make any material change with respect changes to how the operation of the Company, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, orCompany Processes Personal Information, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products;
(xiii) permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not non-material changes made in the ordinary course of business consistent with past practice;
(xivxiii) permit the Company to enter into make any acquisitions of (including by merger, consolidation or agree to enter into acquisition of stock or assets or any merger or consolidation withother business combination) assets, any corporation corporation, partnership, other business organization or other entity, and not engage in any new business division thereof or invest in, make equity interests therein or a loan, advance or capital contribution to, or otherwise acquire substantial portion of the securities of any other Personassets thereof;
(xvxiv) except for transfers of cash pursuant pay, discharge, settle or compromise any pending or threatened Action which (A) requires payment to normal cash management practices, permit or by the Company to make any investments (exclusive of attorneys’ fees) in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with, any Seller or any Affiliate excess of any Seller; or
(xvi) agree to do anything prohibited by this Section 7.2 or anything which would make any of the representations and warranties of the Representing Sellers in this Agreement or the Seller Documents untrue or incorrect $20,000 in any material respect as single instance or in excess of any time through and including $200,000 in the Effective Time.aggregate (other than ordinary course payments or settlements under insurance or reinsurance Contracts that are within the applicable policy limits under such insurance or reinsurance Contract) or
Appears in 1 contract
Sources: Stock Purchase Agreement
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, the Representing Sellers shall, and shall cause the Company to:
(i) conduct the business businesses of the Company 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 the Company and (B) preserve its present relationship with Persons having business dealings with the Company;
(iii) maintain (A) all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets 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 consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company; and
(v) comply in all material respects with applicable laws, including, without limitation, Environmental Laws.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, the Representing Sellers shall not, and shall cause the Company not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iiiii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;; or
(iviii) amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the annual level of compensation of any employee of the Company, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, director or consultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (D) 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, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which the Company is a party or involving a director, officer or employee of the Company in his or her capacity as a director, officer or employee of the Company;
(vi) except for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person;
(vii) 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 the Company;
(viii) 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 the Company;
(ix) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business consistent with past practice;
(x) enter into any commitment for capital expenditures of the Company in excess of $1,000 for any individual commitment and $5,000 for all commitments in the aggregate;
(xi) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company;
(xii) introduce any material change with respect to the operation of the Company, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products;
(xiii) permit the Company 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;
(xiv) permit the Company 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 Person;
(xv) except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with, any Seller or any Affiliate of any Seller; or
(xvi) agree to do anything prohibited by this Section 7.2 or anything which would make any of the representations and warranties of the Representing Sellers in this Agreement or the Seller Documents untrue or incorrect in any material respect as of any time through and including the Effective Time.
Appears in 1 contract
Sources: Share Exchange Agreement (Golden Key International Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the PurchaserCompany or Jaguar, the Representing Sellers shallShareholders shall (with respect to the Company only), and shall cause the Company to:, and Jaguar shall (with respect to Jaguar only):
(i) conduct the business of the Company and Jaguar only in the ordinary course consistent with past practice;
(ii) use its their best efforts to (A) preserve its their present business operations, organization (including, without limitation, management and the sales force) and goodwill of the Company and Jaguar, and (B) preserve its their present relationship with Persons having business dealings with the CompanyCompany and Jaguar;
(iii) maintain (A) all of the assets and properties of the Company and Jaguar in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company and Jaguar in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(A) maintain the books, accounts and records of the Company and Jaguar in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the CompanyCompany and Jaguar; and
(v) comply in all material respects with applicable laws, including, without limitation, Environmental Laws.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the PurchaserCompany or Jaguar, the Representing Sellers Shareholders shall notnot (with respect to the Company only), and shall cause the Company not to:, and Jaguar shall not (with respect to Jaguar only):
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or Jaguar or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the CompanyCompany or Jaguar;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or Jaguar or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the CompanyCompany or Jaguar;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the CompanyCompany or Jaguar;
(iv) amend the certificate of incorporation or by-laws of the CompanyCompany or Jaguar;
(A) materially increase the annual level of compensation of any employee of the CompanyCompany or Jaguar, (B) increase the annual level of compensation payable or to become payable by the Company or Jaguar to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, director or consultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Company Unaudited Financials or the Jaguar Financial Statements, as the case may be, (D) 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, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Company or Jaguar or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which the Company or Jaguar is a party or involving a director, officer or employee of the Company in his or her capacity as a director, officer or employee of the CompanyCompany or Jaguar;
(vi) except for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person;
(vii) 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 the CompanyCompany or the Jaguar;
(viii) 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 the CompanyCompany or Jaguar;
(ix) cancel or compromise any debt or claim or waive or release any material right of the Company or Jaguar except in the ordinary course of business consistent with past practice;
(x) enter into any commitment for capital expenditures of the Company or Jaguar in excess of $1,000 10,000 for any individual commitment and $5,000 25,000 for all commitments in the aggregate;
(xi) enter into, modify or terminate any labor or collective bargaining agreement of the Company or Jaguar or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the CompanyCompany or Jaguar;
(xii) introduce any material change with respect to the operation of the CompanyCompany or Jaguar, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products;
(xiii) permit the Company or Jaguar 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;
(xiv) permit the Company or Jaguar 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 Person;
(xv) except for transfers of cash pursuant to normal cash management practices, permit the Company or Jaguar to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with, any Seller Shareholder or any Affiliate of any SellerShareholder or Affiliate of Jaguar; or
(xvi) agree to do anything prohibited by this Section 7.2 6.2 or anything which would make any of the representations and warranties of the Representing Sellers Company, the Shareholders or Jaguar in this Agreement or the Seller Shareholder Documents or Jaguar Documents untrue or incorrect in any material respect as of any time through and including the Effective Time.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement Agreement, or with the prior written consent of the Purchaser, the Representing Sellers shall, and shall cause the Company to:
(i) conduct the business businesses of the Company 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 the Company and (B) preserve its present relationship with Persons having business dealings with the Company;
(iii) maintain (A) all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(A) maintain the books, accounts and records of the Company in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company; and
(v) comply in all material respects with applicable lawslaws and regulations.
(vi) Forebear from (i) soliciting, includinginitiating, without limitationor encouraging the submission of any proposal or offer from any person relating to the acquisition of any capital stock or other voting securities of the Company, Environmental Lawsor any assets of the Company (including any acquisition structured as a merger, consolidation, share exchange or other business combination), (ii) participating in any discussions or negotiations regarding, furnishing any information with respect to, assisting or participating in, or facilitating in any other manner any effort or attempt by any person to do or seek any of the foregoing, or (iii) taking any other action that is inconsistent with this Agreement or the transactions contemplated hereby and that has the effect of avoiding the Closing contemplated hereby. The Sellers or the Company shall notify Purchaser immediately if any person makes any proposal, offer, inquiry, or contact with respect to any of the foregoing.
(vii) permit the Company 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 Person;
(viii) forbear from doing anything prohibited by this Section 5.2 or anything which would make any of the representations and warranties of the Company or Sellers in this Agreement untrue or incorrect in any material respect.
(b) Except as otherwise expressly contemplated by this Agreement Agreement, or with the prior written consent of the PurchaserCompany, the Representing Sellers Purchaser shall not, and shall cause the Company not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company Purchaser or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the CompanyPurchaser;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the CompanyPurchaser other than to effectuate the transactions contemplated by this Agreement;
(iviii) amend the certificate articles of incorporation or by-laws of the CompanyPurchaser other than to effectuate the transaction contemplated by this Agreement;
(iv) (A) materially increase the annual level of compensation of any employee of the CompanyPurchaser, (B) increase the annual level of compensation payable or to become payable by the Company Purchaser to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, director or consultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (D) 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, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives officers of the Company or otherwise modify or amend or terminate any such plan or arrangement Purchaser, or (ED) enter into any employment, deferred compensation, severance, consulting, non-competition or similar employment agreement (or amend any such agreement) to which the Company Purchaser is a party or involving a director, director or officer or employee of the Company Purchaser in his or her capacity as a director, director or officer or employee of the CompanyPurchaser;
(vi) except for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person;
(viiv) 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 the CompanyPurchaser;
(viiivi) 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 the CompanyPurchaser;
(ix) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business consistent with past practice;
(x) enter into any commitment for capital expenditures of the Company in excess of $1,000 for any individual commitment and $5,000 for all commitments in the aggregate;
(xivii) enter into, modify or terminate any labor or collective bargaining agreement of the Company Purchaser or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the CompanyPurchaser;
(xii) introduce any material change with respect to the operation of the Company, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products;
(xiiiviii) permit the Company 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;
(xiv) permit the Company Purchaser 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 Person;
(xvix) except for transfers of cash pursuant to normal cash management practices, permit the Company Purchaser to make any investments in or loans to, or pay to any fees or expenses to, or enter into or modify any Contract with, any Seller or any Affiliate of any SellerAffiliate; or
(xvix) agree to do anything prohibited by this Section 7.2 5.2 or anything which would make any of the representations and warranties of the Representing Sellers Purchaser in this Agreement or the Seller Documents untrue or incorrect in any material respect as of any time through and including the Effective Timerespect.
Appears in 1 contract
Sources: Share Exchange Agreement (Sentient Brands Holdings Inc.)
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, the Representing Sellers Seller shall, and shall cause the Company Companies to:
(i) conduct the business respective businesses of the Company Companies only in the usual, 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 the Company Companies and (B) preserve its present relationship with Persons Persons, customers, suppliers, distributors and others having business dealings with the CompanyCompanies;
(iii) maintain (A) all of the assets and properties of the Company Companies in their current conditioncondition and in good working order, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company Companies in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(A) maintain the books, accounts and records of the Company Companies in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the CompanyCompanies and continue to perform its obligations under the Material Contracts; and
(v) comply in all material respects with applicable laws, including, without limitation, Environmental Laws.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, the Representing Sellers Seller shall not, and shall cause the Company Companies not to:
: (i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company Companies or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the CompanyCompanies;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the annual level of compensation of any employee of the Company, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, director or consultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (D) 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, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which the Company is a party or involving a director, officer or employee of the Company in his or her capacity as a director, officer or employee of the Company;
(vi) except for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person;
(vii) 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 the Company;
(viii) 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 the Company;
(ix) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business consistent with past practice;
(x) enter into any commitment for capital expenditures of the Company in excess of $1,000 for any individual commitment and $5,000 for all commitments in the aggregate;
(xi) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company;
(xii) introduce any material change with respect to the operation of the Company, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products;
(xiii) permit the Company 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;
(xiv) permit the Company 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 Person;
(xv) except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with, any Seller or any Affiliate of any Seller; or
(xvi) agree to do anything prohibited by this Section 7.2 or anything which would make any of the representations and warranties of the Representing Sellers in this Agreement or the Seller Documents untrue or incorrect in any material respect as of any time through and including the Effective Time.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by From the date of this Agreement until the Closing or with the prior written consent earlier termination of this Agreement (the Purchaser“Pre-Closing Period”), except as consented to in writing by Buyer or as expressly set forth in this Agreement, Sellers and the Representing Sellers shall, and Company shall cause the Company to:
(i) conduct the business of the Company only to operate in the ordinary course consistent with past practice;
(ii) use its best efforts to (A) preserve its present business operations, organization Ordinary Course of Business (including, without limitation, management with respect to the collection of accounts receivable and payments of accounts payable). Without limiting the generality of the foregoing, except as set forth on Schedule 8.1 hereto or as otherwise specifically contemplated by this Agreement or consented to in writing by Buyer:
(i) Sellers and the sales forceCompany shall use commercially reasonable efforts to (a) and goodwill preserve the business of the Company substantially intact, (b) to keep available the services of the Employees, (c) to preserve the goodwill of suppliers, providers, plan members and (B) preserve its present relationship with Persons others having business dealings or relations with the Company, (d) maintain its books and records consistent with past practices and applicable Law in all material respects, (e) pay all liabilities and obligations of the Company in the Ordinary Course of Business, and (f) maintain reserves and statutory net worth sufficient to be in compliance with all applicable Laws, including the HMO Statute;
(ii) the Company shall maintain insurance coverage reasonably appropriate for the conduct of its business and consistent with past practices;
(iii) maintain (A) all Sellers and the Company shall not, directly or indirectly, engage in any act or omission that results in a breach of any of the assets and properties of representations, warranties, agreements or covenants made by Sellers or the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all this Agreement as of the properties and assets Signing Date or as brought down as of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(A) maintain the books, accounts and records of the Company in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the CompanyClosing Date; and
(v) comply in all material respects with applicable laws, including, without limitation, Environmental Laws.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, the Representing Sellers shall not, and shall cause the Company not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) amend the certificate of incorporation The Company shall not make a material capital expenditure, distribution or by-laws of the Company;
(A) materially increase the annual level of compensation of any employee of the Companydividend, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, director or consultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (D) 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, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Company or otherwise modify enter into or amend or terminate any such plan or arrangement or (E) Material Contract, enter into any employmentmanagement, deferred compensation, severance, consulting, non-competition administrative services or similar agreement (or amend any such agreement) to which the Company is a party or involving a director, officer or employee of the Company in his or her capacity as a director, officer or employee of the Company;
(vi) except for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person;
(vii) 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 the Company;
(viii) 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 the Company;
(ix) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business consistent with past practice;
(x) enter into any commitment for capital expenditures of the Company in excess of $1,000 for any individual commitment and $5,000 for all commitments in the aggregate;
(xi) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization marketing contract with respect to the Company;
(xii) introduce any material change with respect to the operation of the Company, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products;
(xiii) permit the Company 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;
(xiv) permit the Company 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 Person;
(xv) except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with, any Seller amend a contract with the Sellers or any an Affiliate of any Seller; or
the Company or Sellers (xvi) agree to do anything prohibited by this other than the cash dividend described in Section 7.2 or anything which would make any of the representations and warranties of the Representing Sellers in this Agreement or the Seller Documents untrue or incorrect in any material respect as of any time through and including the Effective Time3.6).
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement Agreement, or with the prior written consent of the Purchaser, the Representing Sellers shall, and shall cause the Company to:
(i) conduct the business businesses of the Company 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 the Company and (B) preserve its present relationship with Persons having business dealings with the Company;
(iii) maintain (A) all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(A) maintain the books, accounts and records of the Company in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company; and
(v) comply in all material respects with applicable lawslaws and regulations.
(iv) Forebear from (i) soliciting, includinginitiating, without limitationor encouraging the submission of any proposal or offer from any person relating to the acquisition of any capital stock or other voting securities of the Company, Environmental Lawsor any assets of the Company (including any acquisition structured as a merger, consolidation, share exchange or other business combination), (ii) participating in any discussions or negotiations regarding, furnishing any information with respect to, assisting or participating in, or facilitating in any other manner any effort or attempt by any person to do or seek any of the foregoing, or (iii) taking any other action that is inconsistent with this Agreement or the transactions contemplated hereby and that has the effect of avoiding the Closing contemplated hereby. The Sellers or the Company shall notify Purchaser immediately if any person makes any proposal, offer, inquiry, or contact with respect to any of the foregoing.
(v) forbear from doing anything prohibited by this Section 5.2 or anything which would make any of the representations and warranties of the Company or Sellers in this Agreement untrue or incorrect in any material respect.
(b) Except as otherwise expressly contemplated by this Agreement Agreement, or with the prior written consent of the PurchaserCompany, the Representing Sellers Purchaser shall not, and shall cause the Company not to:
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company Purchaser or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the CompanyPurchaser;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the CompanyPurchaser other than to effectuate the transactions contemplated by this Agreement;
(iviii) amend the certificate articles of incorporation or by-laws of the CompanyPurchaser other than to effectuate the transaction contemplated by this Agreement;
(iv) (A) materially increase the annual level of compensation of any employee of the CompanyPurchaser, (B) increase the annual level of compensation payable or to become payable by the Company Purchaser to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, director or consultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (D) 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, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives officers of the Company or otherwise modify or amend or terminate any such plan or arrangement Purchaser, or (ED) enter into any employment, deferred compensation, severance, consulting, non-competition or similar employment agreement (or amend any such agreement) to which the Company Purchaser is a party or involving a director, director or officer or employee of the Company Purchaser in his or her capacity as a director, director or officer or employee of the CompanyPurchaser;
(vi) except for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person;
(viiv) 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 the CompanyPurchaser;
(viiivi) 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 the CompanyPurchaser;
(ix) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business consistent with past practice;
(x) enter into any commitment for capital expenditures of the Company in excess of $1,000 for any individual commitment and $5,000 for all commitments in the aggregate;
(xivii) enter into, modify or terminate any labor or collective bargaining agreement of the Company Purchaser or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the CompanyPurchaser;
(xii) introduce any material change with respect to the operation of the Company, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products;
(xiiiviii) permit the Company 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;
(xiv) permit the Company Purchaser 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 Person;
(xvix) except for transfers of cash pursuant to normal cash management practices, permit the Company Purchaser to make any investments in or loans to, or pay to any fees or expenses to, or enter into or modify any Contract with, any Seller or any Affiliate of any SellerAffiliate; or
(xvix) agree to do anything prohibited by this Section 7.2 5.2 or anything which would make any of the representations and warranties of the Representing Sellers Purchaser in this Agreement or the Seller Documents untrue or incorrect in any material respect as of any time through and including the Effective Timerespect.
Appears in 1 contract
Sources: Share Exchange Agreement (Sentient Brands Holdings Inc.)