Common use of Company Interim Operations Clause in Contracts

Company Interim Operations. Except as set forth in the document entitled "Schedule 6.1" furnished to the Company by Parent prior to the execution and delivery of this Agreement, the Company covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld or delayed) and except as otherwise expressly contemplated by this Agreement and the Stock Option Agreement): (a) the business of it and its Subsidiaries shall be conducted, in all material respects, in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable best efforts to preserve its business organization substantially intact and substantially maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates; (b) it shall not (i) issue, sell, pledge, dispose of or encumber any capital stock owned by it in any of its Subsidiaries; (ii) amend its certificate or bylaws or amend, modify or terminate the Rights Agreement, except as set forth in Section 5.1(s) hereof; (iii) split, combine or reclassify its outstanding shares of capital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock, or (v) repurchase, redeem or otherwise acquire, except in connection with the Stock Plans, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock; (c) neither it nor any of its Subsidiaries shall (i) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or any Voting Debt or any other property or assets (other than (A) the issuance of Shares pursuant to options outstanding on the date of this Agreement under the Stock Plans, (B) the issuance of Shares pursuant to the exercise of Warrants set forth on Schedule 5.1(b), (C) the issuance of 12% Senior Convertible Notes upon exercise of Warrant Notes outstanding on the date of this Agreement, (D) the issuance of warrants for Shares upon redemption of Convertible Notes outstanding on the date of this Agreement and (E) the issuance of Shares upon conversion of Convertible Notes outstanding on the date of this Agreement; (ii) other than in the ordinary and usual course of business, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability; or (iii) make any commitments for, make or authorize any capital expenditures other than in the amounts set forth with respect to particular items in the Budget or, by any means, make any acquisition of, or investment in, assets or stock of any other Person or entity; (d) Except as may be required by existing contractual commitments, existing corporate policy with respect to severance or termination pay or as required by applicable law, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into employment or severance agreement with, any of its directors, officers or employees, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plans or increase or accelerate the salary, wage, bonus or other compensation of any employees, officers or directors (except for increases in salaries, wages and cash bonuses of nonexecutive employees made in the ordinary course of business consistent with past practice) or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan; (e) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or modify, amend or terminate any of its material Contracts or waive, release or assign any material rights or claims; (f) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss-payable payee to be canceled or terminated except in the ordinary and usual course of business; (g) except as may be required as a result of a change in law or in generally accepted accounting principles, neither it nor any of its Subsidiaries shall change any of the accounting practices or principles used by it; (h) neither it nor any of its Subsidiaries shall adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of the Company or any of its subsidiaries not constituting an inactive Subsidiary (other than the Merger); (i) neither it nor any of its Subsidiaries shall knowingly take any action, or knowingly fail to take any action, that is reasonably likely to jeopardize the treatment of the Merger as a "pooling of interests" for accounting purposes or as a "reorganization" within the meaning of Section 368(a) of the Code or that would cause any of its representations and warranties herein to be or become untrue in any material respect; (j) it shall not suffer or permit expenditures made or incurred by the Company and its Subsidiaries for any period to materially exceed the Projected Expenses for such period except for expenses incurred in connection with the transactions contemplated by this Agreement; and (k) neither it nor any of its Subsidiaries will offer to, or enter into an agreement to, do any of the foregoing.

Company Interim Operations. Except as set forth in the document entitled "Schedule 6.1" furnished to the Company by Parent prior to the execution and delivery of this Agreement, the The Company covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise consent approve in writing (such consent writing, which approval shall not to be unreasonably withheld or delayed) , and except as otherwise expressly contemplated by this Agreement and the Stock Option Agreement): (a) the business of it and its Subsidiaries shall be conducted, in all material respects, conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable best efforts to preserve its business organization substantially intact intact, to keep available the services of those of its present officers, employees and substantially consultants that are integral to the operation of its business as presently conducted and to maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, creditors and lessors, employees and business associates; (b) it shall not (i) issue, sell, pledge, dispose of or encumber any capital stock owned by it in any of its Subsidiaries; (ii) amend its certificate articles of organization or bylaws by-laws or amend, modify or terminate the Rights Agreement, except as set forth in Section 5.1(s) hereof; (iii) split, combine or reclassify its outstanding shares of capital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock, stock other than dividends from its direct or indirect wholly-owned Subsidiaries and other than regular quarterly cash dividends not in excess of $.04 per Share; or (v) repurchase, redeem or otherwise acquire, except in connection with the Stock Plans, Plans or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock; (c) neither it nor any of its Subsidiaries shall (i) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or any Voting Debt or any other property or assets (other than (A) the issuance of Shares issuable pursuant to options or other rights outstanding on the date of this Agreement hereof under the Stock Plans, (B) the issuance of Shares Plans and except for shares to be issued pursuant to the exercise of Warrants set forth on Schedule 5.1(bCompany's 1993 Employee Stock Purchase Plan, as amended), (C) the issuance of 12% Senior Convertible Notes upon exercise of Warrant Notes outstanding on the date of this Agreement, (D) the issuance of warrants for Shares upon redemption of Convertible Notes outstanding on the date of this Agreement and (E) the issuance of Shares upon conversion of Convertible Notes outstanding on the date of this Agreement; (ii) other than in the ordinary and usual course of business, business or in amounts less than $250,000 individually or $2,000,000 in the aggregate transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock of any of its Subsidiaries) ), or incur or modify any material indebtedness or other liability; or (iii) other than in the ordinary and usual course of business make any commitments for, make or authorize any capital expenditures other than in the amounts set forth with respect to particular items less than $250,000 individually and $2,000,000 in the Budget aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person or entity; (d) Except as may be required by existing contractual commitments, existing corporate policy with respect to severance or termination pay or as required by applicable law, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into employment or severance agreement with, any of its directors, officers or employees, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plans or increase the salary or accelerate the salary, wage, bonus or other compensation wage of any employees, officers or directors (employees except for increases in salaries, wages and cash bonuses of nonexecutive employees made occurring in the ordinary and usual course of business consistent with past practice) or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation (which shall include normal periodic performance reviews and Benefit Planrelated compensation increases); (e) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or or, except in the ordinary and usual course of business, modify, amend or terminate any of its material Contracts or waive, release or assign any material rights or claims; (f) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss-payable payee to be canceled cancelled or terminated except in the ordinary and usual course of business; (g) except as may be required as a result of a change in law or in generally accepted accounting principles, neither it nor any of its Subsidiaries shall change any of the accounting practices or principles used by it; (h) neither it nor any of its Subsidiaries shall adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of the Company or any of its subsidiaries not constituting an inactive Subsidiary (other than the Merger); (i) neither it nor any of its Subsidiaries shall knowingly take any action, action or knowingly fail omit to take any action, action that is reasonably likely to jeopardize the treatment of would prevent the Merger as a from qualifying for "pooling of interests" for accounting purposes treatment or as a "reorganization" within the meaning of Section 368(a) of the Code or that would cause any of its representations and warranties herein to be or become untrue in any material respect; (j) it shall not suffer or permit expenditures made or incurred by the Company and its Subsidiaries for any period to materially exceed the Projected Expenses for such period except for expenses incurred in connection with the transactions contemplated by this Agreement; and (kh) neither it nor any of its Subsidiaries will offer to, authorize or enter into an agreement to, to do any of the foregoing.

Company Interim Operations. Except as set forth in the document entitled "Schedule 6.1" furnished to the Company by Parent prior to the execution and delivery of this AgreementDisclosure Letter, the Company covenants and agrees as to itself and each of its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise consent approve in writing (such consent not to be unreasonably withheld or delayed) and except as otherwise expressly contemplated by this Agreement and the Stock Option Agreement): (a) the its business of it and its Subsidiaries shall be conducted, in all material respects, conducted in the ordinary and usual course course, consistent with past practice, and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable its best efforts to preserve its business organization substantially intact and substantially maintain its existing relations and goodwill with customers, suppliers, distributors, agents, regulators, creditors, lessors, employees and business associates; (b) it shall not (i) issue, sell, pledge, dispose of or encumber any capital stock owned by it in any of its Subsidiaries; (ii) amend its certificate articles of incorporation or bylaws by-laws or amend, modify or terminate the Rights Agreement, except as set forth in Section 5.1(s) hereofcomparable governing instruments; (iii) split, combine or reclassify its outstanding shares of capital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock, stock other than dividends from its direct or indirect wholly-owned Subsidiaries and other than regular quarterly cash dividends paid by the Company not in excess of $0.165 per Share; or (v) repurchase, redeem or otherwise acquire, except in connection with the Stock Plans, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock; (c) neither it nor any of its Subsidiaries shall not (i) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments rights or rights agreements of any kind to acquire, any shares of its capital stock of any class or any Voting Debt or any other property or assets (other than (A) the issuance of Shares issuable pursuant to options outstanding on the date of this Agreement hereof under the Stock Plans, (B) the issuance of Plan or Shares issued pursuant to the exercise of Warrants set forth on Schedule 5.1(bCompany's Dividend Reinvestment and Stock Purchase Plan), (C) the issuance of 12% Senior Convertible Notes upon exercise of Warrant Notes outstanding on the date of this Agreement, (D) the issuance of warrants for Shares upon redemption of Convertible Notes outstanding on the date of this Agreement and (E) the issuance of Shares upon conversion of Convertible Notes outstanding on the date of this Agreement; (ii) other than in the ordinary and usual course of business, transfer, lease, license, guarantee, sell, mortgagemort- gage, pledge, dispose of or encumber any other property or assets proxxxxx xx xssets (including capital stock of any of its Subsidiaries) or incur or modify any material indebtedness or other liability; or (iii) make incur any commitments for, indebtedness with a maturity of one year or more; or (iv) make or authorize or commit for any capital expenditures other than as contemplated by the Company's current capital budget or, other than in the amounts set forth ordinary course of business consistent with respect to particular items in the Budget orCompany's present investment policies, by any means, make any - acquisition of, or investment in, assets or stock of any other Person or entity; (d) Except as may be required by existing contractual commitments, existing corporate policy with respect to severance or termination pay or as required by applicable law, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into employment or severance agreement with, any of its directors, officers or employees, or (ii) not terminate, establish, adopt, enter into, make any new new, or accelerate the vesting or payment of any existing, grants or awards under, amend or otherwise modify, any Compensation and Benefit Plans or increase or accelerate the salary, wage, bonus or other compensation of any employees, officers or directors (employees except for increases in salaries, wages and cash bonuses of nonexecutive employees made occurring in the ordinary and usual course of business consistent with past practice(which shall include normal periodic performance reviews and related compensation and benefit increases) or pay or agree and except for bonuses to pay any pension, retirement allowance or other employee benefit certain employees and executive officers of the Company not required by any existing Compensation and Benefit Planto exceed $100,000 in the aggregate; (e) neither except as provided in Section 6.1(e) of the Disclosure Schedule, it nor any of its Subsidiaries shall not settle or compromise any material claims or litigation or or, except in the ordinary and usual course of business modify, amend or terminate any of its material Contracts or waive, release or assign any material rights or claims; (f) neither it nor any of its Subsidiaries shall not make any Tax election or permit any insurance policy naming it as a beneficiary or loss-loss- payable payee to be canceled or terminated except in the ordinary and usual course of business; (g) except as may be required as a result of a change in law or in generally accepted accounting principles, neither it nor any of its Subsidiaries shall change any of the accounting practices or principles used by it; (h) neither it nor any of its Subsidiaries shall adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of the Company or any of its subsidiaries not constituting an inactive Subsidiary (other than the Merger); (i) neither it nor any of its Subsidiaries shall knowingly take any action, action or knowingly fail omit to take any action, that is reasonably likely to jeopardize the treatment of the Merger as a "pooling of interests" for accounting purposes or as a "reorganization" within the meaning of Section 368(a) of the Code or action that would cause any representation or warranty of its representations and warranties the Company herein to be or become untrue in any material respect;; and (jh) it shall not suffer or permit expenditures made or incurred by the Company and its Subsidiaries for authorize any period to materially exceed the Projected Expenses for such period except for expenses incurred in connection with the transactions contemplated by this Agreement; and (k) neither it nor any of its Subsidiaries will offer toof, or enter commit or agree to take into an agreement toany of, do any of the foregoingforegoing actions.

Company Interim Operations. Except as set forth in the document entitled "Schedule 6.1" furnished to the Company by Parent prior to the execution and delivery of this Agreement, the The Company covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise consent approve in writing (such consent writing, which approval shall not to be unreasonably withheld or delayed) , and except as otherwise expressly contemplated by this Agreement and the Stock Option Agreement): (a) the business of it and its Subsidiaries shall be conducted, in all material respects, conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable best efforts to preserve its business organization substantially intact intact, to keep available the services of those of its present officers, employees and substantially consultants that are integral to the operation of its business as presently conducted and to maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, creditors and lessors, employees and business associates; (b) it shall not (i) issue, sell, pledge, dispose of or encumber any capital stock owned by it in any of its Subsidiaries; (ii) amend its certificate articles of organization or bylaws by-laws or amend, modify or terminate the Rights Agreement, except as set forth in Section 5.1(s) hereof; (iii) split, combine or reclassify its outstanding shares of capital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock, stock other than dividends from its direct or indirect wholly owned Subsidiaries and other than regular quarterly cash dividends not in excess of $.04 per Share; or (v) repurchase, redeem or otherwise acquire, except in connection with the Stock Plans, Plans or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock; (c) neither it nor any of its Subsidiaries shall (i) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or any Voting Debt or any other property or assets (other than (A) the issuance of Shares issuable pursuant to options or other rights outstanding on the date of this Agreement hereof under the Stock Plans, (B) the issuance of Shares Plans and except for shares to be issued pursuant to the exercise of Warrants set forth on Schedule 5.1(bCompany's 1993 Employee Stock Purchase Plan, as amended), (C) the issuance of 12% Senior Convertible Notes upon exercise of Warrant Notes outstanding on the date of this Agreement, (D) the issuance of warrants for Shares upon redemption of Convertible Notes outstanding on the date of this Agreement and (E) the issuance of Shares upon conversion of Convertible Notes outstanding on the date of this Agreement; (ii) other than in the ordinary and usual course of business, business or in amounts less than $250,000 individually or $2,000,000 in the aggregate transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock of any of its Subsidiaries) ), or incur or modify any material indebtedness or other liability; or (iii) other than in the ordinary and usual course of business make any commitments for, make or authorize any capital expenditures other than in the amounts set forth with respect to particular items less than $250,000 individually and $2,000,000 in the Budget aggregate or, by any means, make any acquisition of, or investment in, assets or stock of any other Person or entity; (d) Except as may be required by existing contractual commitments, existing corporate policy with respect to severance or termination pay or as required by applicable law, neither it nor any of its Subsidiaries shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into employment or severance agreement with, any of its directors, officers or employees, or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plans or increase the salary or accelerate the salary, wage, bonus or other compensation wage of any employees, officers or directors (employees except for increases in salaries, wages and cash bonuses of nonexecutive employees made occurring in the ordinary and usual course of business consistent with past practice) or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation (which shall include normal periodic performance reviews and Benefit Planrelated compensation increases); (e) neither it nor any of its Subsidiaries shall settle or compromise any material claims or litigation or or, except in the ordinary and usual course of business, modify, amend or terminate any of its material Contracts or waive, release or assign any material rights or claims; (f) neither it nor any of its Subsidiaries shall make any Tax election or permit any insurance policy naming it as a beneficiary or loss-payable payee to be canceled cancelled or terminated except in the ordinary and usual course of business; (g) except as may be required as a result of a change in law or in generally accepted accounting principles, neither it nor any of its Subsidiaries shall change any of the accounting practices or principles used by it; (h) neither it nor any of its Subsidiaries shall adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other reorganization of the Company or any of its subsidiaries not constituting an inactive Subsidiary (other than the Merger); (i) neither it nor any of its Subsidiaries shall knowingly take any action, action or knowingly fail omit to take any action, action that is reasonably likely to jeopardize the treatment of would prevent the Merger as a from qualifying for "pooling of interests" for accounting purposes treatment or as a "reorganization" within the meaning of Section 368(a) of the Code or that would cause any of its representations and warranties herein to be or become untrue in any material respect; (j) it shall not suffer or permit expenditures made or incurred by the Company and its Subsidiaries for any period to materially exceed the Projected Expenses for such period except for expenses incurred in connection with the transactions contemplated by this Agreement; and (kh) neither it nor any of its Subsidiaries will offer to, authorize or enter into an agreement to, to do any of the foregoing.