Conduct of Business Pending the Closing Sample Clauses
The 'Conduct of Business Pending the Closing' clause sets out the rules and restrictions for how a seller must operate its business between signing a purchase agreement and the actual closing of the transaction. Typically, this clause requires the seller to continue running the business in the ordinary course, refrain from making significant changes, and seek the buyer’s consent for major decisions such as large expenditures, new contracts, or changes in personnel. Its core function is to preserve the value and condition of the business during the interim period, ensuring that the buyer receives the business as expected and protecting against adverse changes before ownership is transferred.
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Conduct of Business Pending the Closing. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer:
(a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts;
(b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets;
(c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing;
(d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing;
(e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business;
(f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice;
(g) make or rescind any m...
Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during the Interim Period, Seller will cause the Companies to:
(i) operate the Facilities and their business in the ordinary course of business consistent with past practices in all material respects;
(ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge;
(iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the ▇▇▇▇ ▇▇ Outage for March and April of 2006;
(iv) pay Taxes as they come due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and
(v) use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and goodwill with respect to the Facilities, (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and suppliers) and (C) to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in material meetings with Governmental Authorities regarding the Facilities.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld, conditioned or delayed, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not to:
(i) other than the Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money agains...
Conduct of Business Pending the Closing. Except with the prior written consent of Sunstone Parties and except as may be expressly permitted by this Agreement, prior to the Closing, each of Management and Lessee shall, and Lessee shall cause each Lessee Subsidiary, and Alter and Bied▇▇▇▇▇ ▇▇▇ll, and shall cause Lessee and each Lessee Subsidiary and, in the case of Alter, Management to, operate its business only in the usual, regular and ordinary manner, on a basis consistent with past practice and, to the extent consistent with such operation, use its reasonable best efforts to preserve its present business organization intact, keep available the services of its present employees, preserve its present business relationships and maintain all rights, privileges and franchises necessary or desirable in the normal conduct of those businesses. Without limitation of the foregoing, prior to the Closing, except as expressly permitted by this Agreement, each of Management and Lessee shall not, and Lessee shall cause each Lessee Subsidiary, and Alter and Bied▇▇▇▇▇ ▇▇▇ll not, and shall cause Lessee and each Lessee Subsidiary and, in the case of Alter, Management not to:
(a) amend its Certificate of Incorporation or Bylaws;
(b) issue, purchase or redeem, or authorize or propose the issuance, purchase or redemption of, or declare or pay any dividend with respect to, any shares of its capital stock or any class of securities convertible into, or rights, warrants or options to acquire, any such shares of other convertible securities, except for dividends on the capital stock of Management and Lessee which do not exceed $500,000 in the aggregate since December 31, 1998;
(c) form any partnership, limited liability company or other joint venture (other than in the ordinary course consistent with past practice of such business), acquire or dispose of any business (whether by merger, purchase or otherwise) or of any assets (other than in the ordinary course consistent with past practice of such business) or acquire or dispose of any investment in any Person;
(d) make or incur any capital expenditures other than in the ordinary course of business consistent with past practice and in no event in excess of $20,000 individually or $200,000 in the aggregate;
(e) enter into any transaction involving the incurrence, assumption or guarantee of indebtedness other than in the ordinary course of business consistent with past practice;
(f) enter into any agreement of the type described in Sections 4.1(i), 4.1(j)(ii) through (v) ...
Conduct of Business Pending the Closing. From the date hereof until the Closing Date, except as otherwise approved in writing by the Buyer, which approval shall not be unreasonably withheld:
Conduct of Business Pending the Closing. The Company agrees that, between the date of this Agreement and the Effective Time, except as otherwise contemplated by this Agreement (including as allowed by any provision of this Section 6.1), as required by applicable Law or as consented to in writing by Parent (such consent not to be unreasonably withheld or delayed), the Company will, and will cause each Company Subsidiary to, in all material respects (it being understood that in no event shall the Company’s participation in the negotiation (including activities related to due diligence), execution, delivery or public announcement (in accordance with this Agreement) or the pendency of this Agreement or the transactions contemplated hereby or any actions taken in compliance herewith or the consequences thereof on the respective businesses of the Company and the Company Subsidiaries, be considered a breach of any of the provisions of this Section 6.1), (i) carry on its business in the ordinary course consistent with past practice and (ii) use all reasonable efforts to preserve the relationship with its employees and consultants and to preserve intact its current relationships with such of its customers, suppliers and other Persons (including physicians) with which it has significant business relations. Without limiting the foregoing, and as an extension thereof, except as otherwise contemplated by this Agreement (including any provision of this Section 6.1), as required by applicable Law or as consented to in writing by Parent (such consent not to be unreasonably withheld or delayed), the Company shall not, and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following:
(a) amend or otherwise change the Company Certificate, the Company Bylaws or equivalent organizational documents;
(b) except as permitted by Section 6.1(k) below, issue, deliver, sell, pledge or encumber, or authorize, propose or agree to the issuance, delivery, sale, pledge or encumbrance of, any shares of its capital stock or the capital stock of the Company Subsidiaries, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock (other than pursuant to the exercise of options, warrants, conversion rights, vesting of Company Restricted Stock Awards and other contractual rights existing on the date hereof) o...
Conduct of Business Pending the Closing. Except as set forth in Section 5.1 of the Companies' Disclosure Schedule or as otherwise expressly contemplated by this Agreement and the Restructuring Transaction or any of the other Transaction Documents or as consented to by the Investors in writing (which consent shall not be unreasonably withheld) or as required by the federal Bankruptcy Code, the Amended Credit Facility or other Commitment scheduled in Section 3.12 of the Companies' Disclosure Schedule to which either of the Companies or any of their Subsidiaries is or shall be a party, during the period from the date of this Agreement through and including the Closing Date, none of the Companies shall, and each shall not permit any of their Subsidiaries to:
(a) other than dividends and distributions by a direct or indirect wholly owned Subsidiary to the Companies or one of their wholly owned Subsidiaries, (i) declare, set aside or pay any dividends (payable in cash, stock, property or otherwise) on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (iii) purchase, redeem or otherwise acquire any capital stock in the Companies or any of the Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any of its shares of capital stock or any other voting securities or any securities convertible into, exercisable for or exchangeable with, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except as contemplated by the Forbearance Agreement, the indenture governing the Convertible Notes and Permitted Encumbrances;
(c) amend its charter, bylaws or other comparable organizational documents other than in accordance with this Agreement or amend or waive any provisions of the Transaction Documents;
(d) acquire any "business", as defined in Rule 3-05(a)(2) of Regulation S-X (whether by merger, consolidation, purchase of assets or otherwise) or acquire any material equity interest in any person not an affiliate (whether through a purchase of stock, establishment of a joint venture or otherwise);
(e) other than the items set forth in Sect...
Conduct of Business Pending the Closing. The Sellers agree that from the date hereof until the Closing, except as otherwise approved in writing by Purchaser:
Conduct of Business Pending the Closing. From the date hereof until the Closing, except as otherwise approved in writing by the Buyer, Company covenants as follows, and Shareholders shall cause each of the following to occur:
Conduct of Business Pending the Closing. During the period commencing from the date of this Agreement up to the earlier of (x) the Closing Date, and (y) the termination of this Agreement in accordance with Article 8 (the “Relevant Period”), Target Co. Group Companies shall use their commercially reasonable efforts to continue to engage in business in the ordinary and normal course, consistent with past practice. During the Relevant Period, except as consented to in writing by the Seller, the Buyer shall not (i) declare or make any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, or (b) issue any equity securities to any officer, director, employee or Affiliate of the Buyer and its Subsidiaries, except pursuant to existing stock option plans.
Conduct of Business Pending the Closing. 5.1 Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date:
(a) The Company shall conduct its business and operations only in the usual and ordinary course of business;
(b) The Company shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend its Articles of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(c) The Company shall not, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof, (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) The Company shall not enter into any employment, severance or similar agreements or arrangements with, or grant any bonus, salary increase, severance or termination pay to, any officers or directors;
(e) The Company shall not adopt any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee;
(f) The Company shall (i) use its best efforts not to take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue at any time prior to the Closing Date as if then made; and