Conduct Prior to Closing Date. Except as otherwise contemplated by this Agreement, prior to the Closing Date: (a) ▇▇▇▇▇▇▇▇▇▇ shall: (i) conduct the Business and operations of ▇▇▇▇▇▇▇▇▇▇ only in the ordinary course, including, without limitation, maintaining inventories at levels not in excess of those consistent with past practices; (ii) maintain the properties and assets of ▇▇▇▇▇▇▇▇▇▇ in good condition and repair and not dispose of any of its assets except in the ordinary course of business consistent with past practices, perform its obligations under all agreements to which it is a party or by which it or any of its assets or properties are bound and maintain all of its Permits in good standing; (iii) continue in effect the policies of insurance (or similar coverage) referred to in Section 4.23; (iv) use its commercially reasonable efforts to keep available the services of the present employees of ▇▇▇▇▇▇▇▇▇▇; (v) not declare, set aside or pay any cash or stock dividend or other distribution in respect of capital stock, or redeem, otherwise acquire or agree to redeem or otherwise acquire any of its capital stock, other than in connection with the Preferred Repurchase or the Warrant Repurchase; (vi) maintain and preserve the goodwill of the suppliers, customers and others having business relations with ▇▇▇▇▇▇▇▇▇▇; (vii) not lend any amount to any person or entity, other than advances for travel and expenses which are incurred in the ordinary course of business consistent with past practices, not material in amount and documented by receipts for the claim amounts; (viii) not guarantee or act as a surety for any obligation except for obligations in amounts that are not material; (ix) not waive or release any right or claim except for the waiver or release of non-material claims in the ordinary course of business consistent with past practices; (x) not issue or sell any shares of its capital stock of any class (except upon the exercise of a bona fide option, warrant or other right to acquire such capital stock currently outstanding or conversion of any currently outstanding securities which are by their terms convertible in shares of its capital stock), or any other of its securities, or issue or create any warrants, obligations, subscriptions, options, convertible securities or other commitments to issue shares of capital stock, or accelerate the vesting of any outstanding option or other security; (xi) not split or combine the outstanding shares of its capital stock of any class or enter into any recapitalization or agreement affecting the number or rights of outstanding shares of its capital stock of any class or affecting any other of its securities; (xii) not form, merge, consolidate or reorganize with, or acquire, any entity; or (xiii) not amend its articles of incorporation or bylaws. (b) CTK shall: (i) conduct the business and operations of CTK only in the ordinary course; (ii) maintain the properties and assets of CTK in good condition and repair and not dispose of any of its assets except in the ordinary course of business consistent with past practices, perform its obligations under all agreements to which it is a party or by which it or any of its assets or properties are bound and maintain all of its Permits in good standing; (iii) not change any insurance coverage; (iv) not borrow any money except for amounts that are not in the aggregate material to the financial condition of CTK; (v) not declare, set aside or pay any cash or stock dividend or other distribution in respect of capital stock, or redeem or otherwise acquire any of its capital stock; (vi) not lend any amount to any person or entity, other than advances for travel and expenses which are incurred in the ordinary course of business consistent with past practices, not material in amount and documented by receipts for the claim amounts; (vii) not guarantee or act as a surety for any obligation except for obligations in amounts that are not material; (viii) not waive or release any right or claim except for the waiver or release of non-material claims in the ordinary course of business consistent with past practices; (ix) not issue or sell any shares of its capital stock of any class (except upon the exercise of a bona fide option, warrant or other right to acquire such capital stock currently outstanding or conversion of any currently outstanding securities which are by their terms convertible in shares of its capital stock), or any other of its securities, or issue or create any warrants, obligations, subscriptions, options, convertible securities or other commitments to issue shares of capital stock, or accelerate the vesting of any outstanding option or other security; (x) not split (other than the Reverse Split) or combine the outstanding shares of its capital stock of any class or enter into any recapitalization or agreement affecting the number or rights of outstanding shares of its capital stock of any class or affecting any other of its securities; (xi) not form, merge, consolidate or reorganize with, or acquire, any entity; or (xii) not amend its articles of incorporation or bylaws (except as may be necessary in connection with the Articles Amendment or otherwise required to effectuate the transactions contemplated by this Agreement).
Appears in 1 contract
Conduct Prior to Closing Date. Except as otherwise contemplated by this Agreement, prior to the Closing Date:
(a) ▇▇▇▇▇▇▇▇▇▇ PEI shall:
(i) conduct the PEI Business and operations of ▇▇▇▇▇▇▇▇▇▇ PEI only in the ordinary course, including, without limitation, maintaining inventories at levels not in excess of those consistent with past practices;
(ii) maintain the properties and assets of ▇▇▇▇▇▇▇▇▇▇ PEI in good condition and repair and not dispose of any of its assets except in the ordinary course of business consistent with past practices, perform its obligations under all agreements to which it is a party or by which it or any of its assets or properties are bound and maintain all of its Permits in good standing;
(iii) continue in effect the policies of insurance (or similar coverage) referred to in Section 4.23;
(iv) not borrow any money except for amounts that are not in the aggregate material to the financial condition of PEI;
(v) use its commercially reasonable efforts to keep available the services of the present employees of ▇▇▇▇▇▇▇▇▇▇PEI;
(vvi) not declare, set aside or pay any cash or stock dividend or other distribution in respect of capital stock, or redeem, otherwise acquire or agree to redeem or otherwise acquire any of its capital stock, other than in connection with the Preferred Repurchase or the Warrant Repurchase;
(vivii) maintain and preserve the goodwill of the suppliers, customers and others having business relations with ▇▇▇▇▇▇▇▇▇▇PEI;
(viiviii) not lend any amount to any person or entity, other than advances for travel and expenses which are incurred in the ordinary course of business consistent with past practices, not material in amount and documented by receipts for the claim amounts;
(viiiix) not guarantee or act as a surety for any obligation except for obligations in amounts that are not material;
; (ixx) not waive or release any right or claim except for the waiver or release of non-material claims in the ordinary course of business consistent with past practices;
(x) not issue or sell any shares of its capital stock of any class (except upon the exercise of a bona fide option, warrant or other right to acquire such capital stock currently outstanding or conversion of any currently outstanding securities which are by their terms convertible in shares of its capital stock), or any other of its securities, or issue or create any warrants, obligations, subscriptions, options, convertible securities or other commitments to issue shares of capital stock, or accelerate the vesting of any outstanding option or other security;
(xi) not split or combine the outstanding shares of its capital stock of any class or enter into any recapitalization or agreement affecting the number or rights of outstanding shares of its capital stock of any class or affecting any other of its securities;
(xii) not form, merge, consolidate or reorganize with, or acquire, any entity; or
(xiii) not amend its articles of incorporation or bylaws.
(b) CTK shall:
(i) conduct the business and operations of CTK only in the ordinary course;
(ii) maintain the properties and assets of CTK in good condition and repair and not dispose of any of its assets except in the ordinary course of business consistent with past practices, perform its obligations under all agreements to which it is a party or by which it or any of its assets or properties are bound and maintain all of its Permits in good standing;
(iii) not change any insurance coverage;
(iv) not borrow any money except for amounts that are not in the aggregate material to the financial condition of CTK;
(v) not declare, set aside or pay any cash or stock dividend or other distribution in respect of capital stock, or redeem or otherwise acquire any of its capital stock;
(vi) not lend any amount to any person or entity, other than advances for travel and expenses which are incurred in the ordinary course of business consistent with past practices, not material in amount and documented by receipts for the claim amounts;
(vii) not guarantee or act as a surety for any obligation except for obligations in amounts that are not material;
(viii) not waive or release any right or claim except for the waiver or release of non-material claims in the ordinary course of business consistent with past practices;
(ix) not issue or sell any shares of its capital stock of any class (except upon the exercise of a bona fide option, warrant or other right to acquire such capital stock currently outstanding or conversion of any currently outstanding securities which are by their terms convertible in shares of its capital stock), or any other of its securities, or issue or create any warrants, obligations, subscriptions, options, convertible securities or other commitments to issue shares of capital stock, or accelerate the vesting of any outstanding option or other security;
(x) not split (other than the Reverse Split) or combine the outstanding shares of its capital stock of any class or enter into any recapitalization or agreement affecting the number or rights of outstanding shares of its capital stock of any class or affecting any other of its securities;
(xi) not form, merge, consolidate or reorganize with, or acquire, any entity; or
(xii) not amend its articles of incorporation or bylaws (except as may be necessary in connection with the Articles Amendment or otherwise required to effectuate the transactions contemplated by this Agreement).
Appears in 1 contract
Conduct Prior to Closing Date. Except as otherwise contemplated by this Agreement, prior to the Closing Date:
(a) ▇▇▇▇▇▇▇▇▇▇ PEI shall:
(i) conduct the PEI Business and operations of ▇▇▇▇▇▇▇▇▇▇ PEI only in the ordinary course, including, without limitation, maintaining inventories at levels not in excess of those consistent with past practices;
(ii) maintain the properties and assets of ▇▇▇▇▇▇▇▇▇▇ PEI in good condition and repair and not dispose of any of its assets except in the ordinary course of business consistent with past practices, perform its obligations under all agreements to which it is a party or by which it or any of its assets or properties are bound and maintain all of its Permits in good standing;
(iii) continue in effect the policies of insurance (or similar coverage) referred to in Section SECTION 4.23;
(iv) not borrow any money except for amounts that are not in the aggregate material to the financial condition of PEI;
(v) use its commercially reasonable efforts to keep available the services of the present employees of ▇▇▇▇▇▇▇▇▇▇PEI;
(vvi) not declare, set aside or pay any cash or stock dividend or other distribution in respect of capital stock, or redeem, otherwise acquire or agree to redeem or otherwise acquire any of its capital stock, other than in connection with the Preferred Repurchase or the Warrant Repurchase;
(vivii) maintain and preserve the goodwill of the suppliers, customers and others having business relations with ▇▇▇▇▇▇▇▇▇▇PEI;
(viiviii) not lend any amount to any person or entity, other than advances for travel and expenses which are incurred in the ordinary course of business consistent with past practices, not material in amount and documented by receipts for the claim amounts;
(viiiix) not guarantee or act as a surety for any obligation except for obligations in amounts that are not material;
(ixx) not waive or release any right or claim except for the waiver or release of non-material claims in the ordinary course of business consistent with past practices;
(xxi) not issue or sell any shares of its capital stock of any class (except upon the exercise of a bona fide option, warrant or other right to acquire such capital stock currently outstanding or conversion of any currently outstanding securities which are by their terms convertible in shares of its capital stock), or any other of its securities, or issue or create any warrants, obligations, subscriptions, options, convertible securities or other commitments to issue shares of capital stock, or accelerate the vesting of any outstanding option or other security;
(xixii) not split or combine the outstanding shares of its capital stock of any class or enter into any recapitalization or agreement affecting the number or rights of outstanding shares of its capital stock of any class or affecting any other of its securities;
(xiixiii) not form, merge, consolidate or reorganize with, or acquire, any entity; or
(xiiixiv) not amend its articles of incorporation or bylaws.
(b) CTK Kinergy shall:
(i) conduct the business Kinergy Business and operations of CTK Kinergy only in the ordinary course, including, without limitation, maintaining inventories at levels not in excess of those consistent with past practices;
(ii) maintain the properties and assets of CTK Kinergy in good condition and repair and not dispose of any of its assets except in the ordinary course of business consistent with past practices, perform its obligations under all agreements to which it is a party or by which it or any of its assets or properties are bound and maintain all of its Permits in good standing;
(iii) not change any continue in effect the policies of insurance (or similar coverage) referred to in SECTION 6.23;
(iv) not borrow any money except for amounts that are not in the aggregate material to the financial condition of CTKKinergy;
(v) use its commercially reasonable efforts to keep available the services of the present employees of Kinergy;
(vi) not declare, set aside or pay any cash or stock dividend or other distribution in respect of capital stockits limited liability company membership interests, or redeem or otherwise acquire any of its capital stocklimited liability company membership interests; PROVIDED, HOWEVER, that effective the close of business on the day preceding the Closing Date, the Managers or Managing Members of Kinergy shall distribute to the Members of Kinergy in the form of cash, a promissory note or a combination of cash and a promissory note, the dollar amount of Kinergy's net worth as set forth on Kinergy's balance sheet dated as of such date, which balance sheet shall have been prepared in accordance with GAAP;
(vivii) maintain and preserve the goodwill of the suppliers, customers and others having business relations with Kinergy;
(viii) not lend any amount to any person or entity, other than advances for travel and expenses which are incurred in the ordinary course of business consistent with past practices, not material in amount and documented by receipts for the claim amounts;
(viiix) not guarantee or act as a surety for any obligation except for obligations in amounts that are not material;
(viiix) not waive or release any right or claim except for the waiver or release of non-material claims in the ordinary course of business consistent with past practices;
(ixxi) not issue or sell any shares of its capital stock of any class (except upon the exercise of a bona fide option, warrant or other right to acquire such capital stock currently outstanding or conversion of any currently outstanding securities which are by their terms convertible in shares of its capital stock)limited liability company membership interests, or any other of its securities, or issue or create any warrants, obligations, subscriptions, options, convertible securities or other commitments to issue shares of capital stocklimited liability company membership interests, or accelerate the vesting of any outstanding option or other security;
(xxii) not split (other than the Reverse Split) or combine the outstanding shares of its capital stock of any class or enter into any recapitalization or agreement affecting the number or rights of outstanding shares of its capital stock of any class limited liability company membership interests or affecting any other of its securities;
(xixiii) not form, merge, consolidate or reorganize with, or acquire, any entity; or
(xiixiv) not amend its articles of incorporation organization or bylaws operating agreement.
(c) Reenergy shall:
(i) conduct the Reenergy Business and operations of Reenergy only in the ordinary course, including, without limitation, maintaining inventories at levels not in excess of those consistent with past practices;
(ii) maintain the properties and assets of Reenergy in good condition and repair and not dispose of any of its assets except as may be necessary in connection the ordinary course of business consistent with past practices, perform its obligations under all agreements to which it is a party or by which it or any of its assets or properties are bound and maintain all of its Permits in good standing;
(iii) continue in effect the Articles Amendment policies of insurance (or similar coverage) referred to in SECTION 8.23;
(iv) not borrow any money except for amounts that are not in the aggregate material to the financial condition of Reenergy;
(v) use its commercially reasonable efforts to keep available the services of the present employees of Reenergy;
(vi) not declare, set aside or pay any cash or dividend or other distribution in respect of its limited liability company membership interests, or redeem or otherwise required acquire any of its limited liability company membership interests; PROVIDED, HOWEVER, that effective the close of business on the day preceding the Closing Date, the Managers or Managing Members of Reenergy shall distribute to effectuate the transactions contemplated Members of Reenergy in the form of cash, a promissory note or a combination of cash and a promissory note, the dollar amount of Reenergy's net worth as set forth on Reenergy's balance sheet dated as of such date, which balance sheet shall have been prepared in accordance with GAAP;
(vii) maintain and preserve the goodwill of the suppliers, customers and others having business relations with Reenergy;
(viii) not lend any amount to any person or entity, other than advances for travel and expenses which are incurred in the ordinary course of business consistent with past practices, not material in amount and documented by this Agreement)receipts for the claim amounts;
(ix) not guarantee or act as a surety for any obligation except for obligations in amounts that are not material;
(x) not waive or release any right or claim except for the waiver or release of non-material claims in the ordinary course of business consistent with past practices;
(xi) not issue or sell any limited liability company membership interests, or any other of its securities, or issue or create any warrants, obligations, subscriptions, options, convertible securities or other commitments to issue limited liability company membership interests, or accelerate the vesting of any outstanding option or other security;
(xii) not enter into any recapitalization or agreement affecting the number or rights of outstanding limited liability company membership interests or affecting any other of its securities;
(xiii) not form, merge, consolidate or reorganize with, or acquire, any entity; or
(xiv) not amend its articles of organization or operating agreement.
Appears in 1 contract