Common use of Conduct of Business by Purchaser Clause in Contracts

Conduct of Business by Purchaser. Purchaser and Merger Sub covenant and agree with the Company that between the date hereof and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, each of Purchaser and Merger Sub: (a) shall not, and shall not permit any of their respective Subsidiaries to, except as provided on Section 6.15 of the Purchaser Disclosure Schedule, issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or Encumbrance of, (i) any shares of the capital stock or other ownership interest in Purchaser or Merger Sub or any such Subsidiaries or (ii) any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock or other ownership interests in Purchaser or Merger Sub or any such Subsidiaries; and (b) shall not, and shall not permit any of its Affiliates to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets if such business or Person competes in any line of business of the Company if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger or consolidation could reasonably be expected to (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, (iii) increase the risk of not being able to remove any such order on appeal or otherwise or (iv) delay or prevent the consummation of the Merger or the other Transactions contemplated by this Agreement.

Conduct of Business by Purchaser. Except for matters set forth in the Purchaser and Merger Sub covenant and agree with the Company that between Disclosure Letter or otherwise contemplated by this Agreement, from the date hereof and of this Agreement to the Effective Time the Purchaser shall, and shall cause each Purchaser Subsidiary to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and keep its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters set forth in the Purchaser Disclosure Letter or otherwise contemplated by this Agreement, from the date, if any, on which date of this Agreement is terminated pursuant to Section 8.1the Effective Time, each of the Purchaser and Merger Sub: (a) shall not, and shall not permit any of their respective Subsidiaries Purchaser Subsidiary to, except as provided on Section 6.15 do any of the Purchaser Disclosure Schedulefollowing without the prior written consent of the Company: (i) (A) declare, issueset aside or pay any dividends on, sellor make any other distributions in respect of, pledgeany of its capital stock, dispose (B) split, combine or reclassify any of its capital stock or encumber, issue or authorize the issuance, sale, pledge, disposition or Encumbrance issuance of any other securities in respect of, (i) any in lieu of or in substitution for shares of the its capital stock or other ownership interest in Purchaser or Merger Sub or any such Subsidiaries stock, or (iiC) any optionspurchase, warrants, convertible securities redeem or other rights of any kind to otherwise acquire any shares of capital stock of the Purchaser or any Purchaser Subsidiary or any other securities thereof or any rights, warrants or options to acquire any such shares or other ownership interests in Purchaser securities; (ii) issue, deliver, sell or Merger Sub grant (A) any shares of its capital stock, (B) any voting securities or (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such Subsidiaries; andshares, voting securities or convertible or exchangeable securities, other than (1) the issuance of Purchaser Common Stock upon the exercise of Purchaser Employee Stock Options outstanding on the date of this Agreement and in accordance with their present terms, (2) the issuance of additional Purchaser Employee Stock Options pursuant to the Purchaser Stock Plans in accordance with their present terms and consistent with prior practice and the issuance of Purchaser Common Stock upon the exercise of such Purchaser Employee Stock Options and (3) the issuance of Purchaser Common Stock pursuant to the Purchaser Stock Plans or the Purchaser Employee Stock Purchase Plan, (4) the issuance of Purchaser Common Stock upon the exercise or conversion of warrants or convertible debentures outstanding as of the date hereof in accordance with their present terms and (5) in connection with the replacement of lost, stolen or destroyed certificates; (biii) shall notamend its certificate of incorporation, by-laws or other comparable charter or organizational documents, except for such amendments to its certificate of incorporation, by-laws and shall other comparable charter or organizational documents that do not permit any of its Affiliates to, have an adverse affect on the Merger and the other Transactions; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial equity interest in or portion of the assets of or equity inof, or by any other manner, any business or any Person corporation, partnership, joint venture, association or other business organization or division thereofthereof or (B) any assets that are material, individually or in the aggregate, to the Purchaser and the Purchaser Subsidiaries, taken as a whole, except purchases of inventory in the ordinary course of business consistent with past practice; (v) (A) grant to any executive officer or director of the Purchaser or any Purchaser Subsidiary any increase in compensation, except in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect as of the date of this Agreement, (B) grant to any executive officer or director of the Purchaser or any Purchaser Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect as of the date of this Agreement, (C) enter into any severance or termination agreement with any such executive officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Purchaser Benefit Plan or (E) take any action to accelerate any rights or benefits, or otherwise acquire or agree to acquire make any assets if such business or Person competes material determinations not in any line the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Purchaser Benefit Plan; (vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company if Purchaser, except insofar as may have been required by a change in GAAP; (vii) sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets that are material, individually or in the entering into aggregate, to the Purchaser and the Purchaser Subsidiaries, taken as a whole, except sales of a definitive agreement relating inventory and excess or obsolete assets in the ordinary course of business consistent with past practice; (viii) take, or permit any Purchaser Subsidiary to or the consummation of such acquisitiontake, merger or consolidation any action that could reasonably be expected to prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code; or (iix) impose authorize any delay in the obtaining of, or increase commit or agree to take any of, the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, (iii) increase the risk of not being able to remove any such order on appeal or otherwise or (iv) delay or prevent the consummation of the Merger or the other Transactions contemplated by this Agreementforegoing actions.

Conduct of Business by Purchaser. Purchaser Except as otherwise expressly provided for by this Agreement or as set forth in Exhibit 4.2, from and Merger Sub covenant and agree with the Company that between after the date hereof and until the Effective Time or the dateClosing Date, if any, on which this Agreement is terminated pursuant to Section 8.1, each of Purchaser and Merger Sub: (a) shall not, and shall cause each of its Subsidiaries not permit to, take any of their respective the following actions without the prior written consent of Seller (which shall not be unreasonably withheld or delayed): (a) adopt any amendment to the Organizational Documents of Purchaser; (b) adopt a plan or agreement of complete liquidation, dissolution, merger, consolidation, restructuring, recapitalization (which shall not be deemed to include a refinancing of indebtedness of Purchaser or Purchaser’s Subsidiaries to, except existing as provided on Section 6.15 of the Purchaser Disclosure Schedule, issue, sell, pledge, dispose of date hereof) or encumber, or authorize the issuance, sale, pledge, disposition or Encumbrance of, other reorganization; (c) (i) any shares of the capital stock issue or other ownership interest in sell Purchaser or Merger Sub Common Stock, Purchaser Preferred Stock or any such Subsidiaries or (ii) any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock of Purchaser or any other voting securities or securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any of the foregoing, other than shares issued pursuant to any Purchaser employee benefit plan or the exercise of options or other ownership interests in rights granted thereunder and other than shares issued pursuant to the conversion of convertible securities which are convertible at the option of the holder thereof and outstanding as of the date of this Agreement; (ii) split, combine, subdivide or reclassify the Purchaser or Merger Sub Common Stock, Purchaser Preferred Stock or any such Subsidiariesother shares of capital stock of Purchaser; or (iii) declare, set aside or pay any extraordinary dividend or distribution (whether in cash, stock or other property) in respect of any capital stock of Purchaser; and (bd) shall notauthorize, and shall not permit or commit to agree to do, whether in writing or otherwise, any of its Affiliates to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets if such business or Person competes in any line of business of the Company if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger or consolidation could reasonably be expected to (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, (iii) increase the risk of not being able to remove any such order on appeal or otherwise or (iv) delay or prevent the consummation of the Merger or the other Transactions contemplated by this Agreementforegoing.

Conduct of Business by Purchaser. Purchaser Except as otherwise expressly provided for by this Agreement or as set forth in Exhibit 4.2, from and Merger Sub covenant and agree with the Company that between after the date hereof and until the Effective Time or the dateClosing Date, if any, on which this Agreement is terminated pursuant to Section 8.1, each of Purchaser and Merger Sub: (a) shall not, and shall cause each of its Subsidiaries not permit to, take any of their respective the following actions without the prior written consent of Seller (which shall not be unreasonably withheld or delayed): (a) adopt any amendment to the Organizational Documents of Purchaser; (b) adopt a plan or agreement of complete liquidation, dissolution, merger, consolidation, restructuring, recapitalization (which shall not be deemed to include a refinancing of indebtedness of Purchaser or Purchaser’s Subsidiaries to, except existing as provided on Section 6.15 of the Purchaser Disclosure Schedule, issue, sell, pledge, dispose of date hereof) or encumber, or authorize the issuance, sale, pledge, disposition or Encumbrance of, other reorganization; (c) (i) any shares of the capital stock issue or other ownership interest in sell Purchaser or Merger Sub Common Stock, Purchaser Preferred Stock or any such Subsidiaries or (ii) any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock of Purchaser or any other voting securities or securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any of the foregoing, other than shares issued pursuant to any Purchaser employee benefit plan or the exercise of options or other ownership interests in Purchaser or Merger Sub or any such Subsidiaries; and (b) shall not, rights granted thereunder and shall not permit any other than shares issued pursuant to the conversion of its Affiliates to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion convertible securities which are convertible at the option of the assets of or equity in, or by any other manner, any business or any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets if such business or Person competes in any line of business holder thereof and outstanding as of the Company if the entering into date of a definitive agreement relating to or the consummation of such acquisition, merger or consolidation could reasonably be expected to (i) impose any delay in the obtaining of, or increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, Agreement; (ii) increase split, combine, subdivide or reclassify the risk Purchaser Common Stock, Purchaser Preferred Stock or any other shares of any Governmental Authority entering an order prohibiting the consummation capital stock of the transactions contemplated by this Agreement, Purchaser; or (iii) increase the risk declare, set aside or pay any extraordinary dividend or distribution (whether in cash, stock or other property) in respect of not being able to remove any such order on appeal or otherwise or (iv) delay or prevent the consummation capital stock of the Merger or the other Transactions contemplated by this Agreement.Purchaser; and