Common use of Conduct of Business by Phone Clause in Contracts

Conduct of Business by Phone. Except as set forth in Section 4.1(a) of the Phone Disclosure Schedule, as otherwise expressly contemplated by this Agreement or as consented to by Xxxxxxxx.xxx in writing, such consent not to be unreasonably withheld or delayed, during the period from the date of this Agreement to the Effective Time, Phone shall, and shall cause its subsidiaries to, carry on their respective businesses in the ordinary course consistent with past practice and in compliance in all material respects with all applicable laws and regulations and, to the extent consistent therewith, use reasonable efforts to preserve intact their current business organizations, use reasonable efforts to keep available the services of their current officers and other key employees and preserve their relationships with those persons having business dealings with them to the end that their goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing (but subject to the above exceptions), during the period from the date of this Agreement to the Effective Time, Phone shall not, and shall not permit any of its subsidiaries to: (i) other than dividends and distributions by a direct or indirect wholly owned subsidiary of Phone to its parent, or by a subsidiary that is partially owned by Phone or any of its subsidiaries, provided that Phone or any such subsidiary receives or is to receive its proportionate share thereof, (x) declare, set aside or pay any dividends on, make any other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock, (y) 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, except for issuances of Phone Common Stock upon the exercise of Phone Options, in each case, outstanding as of the date hereof in accordance with their present terms (including cashless exercise) or issued pursuant to Section 4.1(a)(ii) or (z) purchase, redeem or otherwise acquire any shares of capital stock of Phone or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities (except, in the case of clause (z), for the deemed acceptance of shares upon cashless exercise of Phone Options outstanding on the date hereof, or in connection with withholding obligations relating thereto); (ii) except in connection with acquisitions permitted or contemplated by clause (iv) of this Section 4.1(a), issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than the issuance of Phone Common Stock upon the exercise or conversion of Phone Options outstanding as of the date hereof in accordance with their present terms or the issuance of Phone Options (and shares of Phone Common Stock upon the exercise thereof) granted after the date hereof in the ordinary course of business consistent with past practice for employees (so long as such additional amount of Phone Common Stock subject to Phone Options issued to such employees does not exceed four and one-half million (4,500,000) shares of Phone Common Stock in the aggregate)); (iii) except as contemplated hereby, amend its certificate of incorporation, by-laws or other comparable organizational documents; (iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets or equity or other securities of, or by any other manner, any business or any person, or, except for transactions pursuant to contracts or agreements in force at the date of this Agreement or acquisitions or investments permitted or contemplated by Section 4.1(a) of the Phone Disclosure Schedule, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a subsidiary of Phone; (v) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets (including securitizations), other than in the ordinary course of business consistent with past practice, including, without limitation, in connection with consolidation of acquired businesses or as would not have a material adverse effect on Phone; (vi) take any action that would cause the representations and warranties set forth in Section 3.1(g) and qualified as to materiality to be no longer true and correct or, if not so qualified, to be no longer true and correct in all material respects; (vii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for the obligations of any person for borrowed money, other than pursuant to a revolving credit facility or receivables facility or commercial paper facility in effect as of the date hereof (including any replacement facilities), in the ordinary course of business consistent with past practice; (viii) settle any material claim (including any Tax claim), action or proceeding involving money damages, except in the ordinary course of business consistent with past practice; (ix) make any material Tax election except in the ordinary course of business and consistent with past practice; (x) other than in the ordinary course of business or in connection with acquisitions permitted by Section 4.1(a) of the Phone Disclosure Schedule, enter into or terminate any material contract or agreement, or make any change in any of its material leases or contracts, other than amendments or renewals of contracts and leases without material adverse changes of terms; (xi) except for increases in accordance with normal past practice, increase in any manner the compensation or fringe benefits of any of its officers or directors, or materially increase the foregoing in respect of employees; enter into any commitment to pay any pension, retirement or severance benefit to any such officers or directors, or make any material commitment to pay the foregoing to any employees; commit itself to, or enter into, any employment agreement involving compensation of more than Two Hundred Thousand Dollars ($200,000.00) per year or a term other than "at will;" adopt or commit itself to any new benefit, base salary or stock option plan or arrangement; or amend, supplement, or accelerate the timing of payments or vesting under, or otherwise materially amend or supplement any existing benefit, stock option or compensation plan or arrangement (other than as may be required by applicable law); (xii) change any of the accounting methods used by Phone or any of its subsidiaries unless required by generally accepted accounting principles or take or knowingly allow to be taken any action which would jeopardize the treatment of the Merger as a pooling of interests for accounting purposes; or (xiii) authorize, or commit or agree to take, any of the foregoing actions; provided that the limitations set forth in this Section 4.1(a) (other than clause (iii)) shall not apply to any transaction between Phone and any wholly owned subsidiary or between any wholly owned subsidiaries of Phone.