Common use of Conduct of Business; Interim Operations Clause in Contracts

Conduct of Business; Interim Operations. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time of the Merger, OptaPhone agrees, subject to the limitations described in Section 5.1(r) below, to carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conducted, to pay its debts and taxes when due, subject to good faith disputes over such debts or taxes, to pay or perform its other obligations when due, and, to the extent consistent with such business, to use all commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and key employees, and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees and others having business dealings with it. OptaPhone shall promptly notify Zhone of any event or occurrence where such event or occurrence would result in a breach of any covenant of OptaPhone set forth in this Agreement or cause any representation or warranty of OptaPhone set forth in this Agreement to be untrue as of the date of, or giving effect to, such event or occurrence. Except as expressly contemplated by this Agreement, OptaPhone shall not, without the prior written consent of Zhone: (a) transfer or license to any person or entity or otherwise extend, amend or modify any rights to the OptaPhone Intellectual Property Rights; (b) declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or 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 purchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party; (c) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities (except upon the exercise or conversion of securities outstanding on the date of this Agreement); (d) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division; (e) sell, lease, license or otherwise dispose of any of its properties or assets except for transactions entered into in the ordinary course of business consistent with past practice; (f) take any action to: (i) increase or agree to increase the compensation payable or to become payable to its officers or employees, (ii) grant any severance or termination pay to, or enter into any employment or severance agreements with, any officer or employee, (iii) enter into any collective bargaining agreement, or (iv) establish, adopt, enter into or amend in any material respect any bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, trust, fund, policy or arrangement for the benefit of any directors, officers or employees; (g) revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP; (h) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of others, other than indebtedness incurred under outstanding lines of credit in the ordinary course of business consistent with past practice; (i) amend or propose to amend its Articles of Incorporation or Bylaws; (j) incur or commit to incur any individual capital expenditure in excess of $5,000 or aggregate capital expenditures in excess of $10,000; (k) amend or terminate any material contract, agreement or license to which it is a party except in the ordinary course of business; (l) waive or release any material right or claim, except in the ordinary course of business; (m) initiate any litigation or arbitration proceeding; (n) accelerate, amend or change the period of exercisability of any options or restricted stock granted to employees of OptaPhone or authorize cash payments in exchange for any options granted under any of such plans; (o) compromise or otherwise settle or adjust any assertion or claim of a deficiency in taxes (or interest thereon or penalties in connection therewith), extend the statute of limitations with any tax authority or file any pleading in court in any tax litigation or any appeal from an asserted deficiency; (p) change any of OptaPhone's accounting policies or practices except as may be required by any modification or change in GAAP; (q) change any of OptaPhone's personnel policies in any material respect (except for changes contemplated by the Severance Plan); (r) grant any person a power of attorney or similar authority; or (s) agree in writing or otherwise to take any of the actions described in subsections (a) through (r) above, or any action which is reasonably likely to make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect on the date made (to the extent so limited) or as of the Closing Date.

Conduct of Business; Interim Operations. During the period from --------------------------------------- the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time of the Merger, OptaPhone agrees, subject to the limitations described in Section 5.1(r) below, to carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conducted, to pay its debts and taxes when due, subject to good faith disputes over such debts or taxes, to pay or perform its other obligations when due, and, to the extent consistent with such business, to use all commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and key employees, and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees and others having business dealings with it. OptaPhone shall promptly notify Zhone of any event or occurrence where such event or occurrence would result in a breach of any covenant of OptaPhone set forth in this Agreement or cause any representation or warranty of OptaPhone set forth in this Agreement to be untrue as of the date of, or giving effect to, such event or occurrence. Except as expressly contemplated by this Agreement, OptaPhone shall not, without the prior written consent of Zhone: (a) transfer or license to any person or entity or otherwise extend, amend or modify any rights to the OptaPhone Intellectual Property Rights; (b) declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or 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 purchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party; (c) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities (except upon the exercise or conversion of securities outstanding on the date of this Agreement); (d) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division; (e) sell, lease, license or otherwise dispose of any of its properties or assets except for transactions entered into in the ordinary course of business consistent with past practice; (f) take any action to: (i) increase or agree to increase the compensation payable or to become payable to its officers or employees, (ii) grant any severance or termination pay to, or enter into any employment or severance agreements with, any officer or employee, (iii) enter into any collective bargaining agreement, or (iv) establish, adopt, enter into or amend in any material respect any bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, trust, fund, policy or arrangement for the benefit of any directors, officers or employees; (g) revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP; (h) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of others, other than indebtedness incurred under outstanding lines of credit in the ordinary course of business consistent with past practice; (i) amend or propose to amend its Articles of Incorporation or Bylaws; (j) incur or commit to incur any individual capital expenditure in excess of $5,000 or aggregate capital expenditures in excess of $10,000; (k) amend or terminate any material contract, agreement or license to which it is a party except in the ordinary course of business; (l) waive or release any material right or claim, except in the ordinary course of business; (m) initiate any litigation or arbitration proceeding; (n) accelerate, amend or change the period of exercisability of any options or restricted stock granted to employees of OptaPhone or authorize cash payments in exchange for any options granted under any of such plans; (o) compromise or otherwise settle or adjust any assertion or claim of a deficiency in taxes (or interest thereon or penalties in connection therewith), extend the statute of limitations with any tax authority or file any pleading in court in any tax litigation or any appeal from an asserted deficiency; (p) change any of OptaPhone's accounting policies or practices except as may be required by any modification or change in GAAP; (q) change any of OptaPhone's personnel policies in any material respect (except for changes contemplated by the Severance Plan); (r) grant any person a power of attorney or similar authority; or (s) agree in writing or otherwise to take any of the actions described in subsections (a) through (r) above, or any action which is reasonably likely to make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect on the date made (to the extent so limited) or as of the Closing Date.

Conduct of Business; Interim Operations. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time of the Merger, OptaPhone CAG agrees, subject to the limitations described in Section 5.1(r6.1(r) below, to carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conducted, to pay its debts and taxes when due, subject to good faith disputes over such debts or taxes, to pay or perform its other obligations when due, and, to the extent consistent with such business, to use all commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and key employees, and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees and others having business dealings with it. OptaPhone CAG shall promptly notify Zhone of any event or occurrence where such event or occurrence would result in a breach of any covenant of OptaPhone CAG set forth in this Agreement or cause any representation or warranty of OptaPhone CAG set forth in this Agreement to be untrue as of the date of, or giving effect to, such event or occurrence. Except as expressly contemplated by this Agreement, OptaPhone CAG shall not, without the prior written consent of Zhone: (a) transfer or license to any person or entity or otherwise extend, amend or modify any rights to the OptaPhone CAG Intellectual Property Rights; (b) declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or 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 purchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party; (c) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities (except upon the exercise or conversion of securities outstanding on the date of this Agreement); (d) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division; (e) sell, lease, license or otherwise dispose of any of its properties or assets except for transactions entered into in the ordinary course of business consistent with past practice; (f) take any action to: (i) increase or agree to increase the compensation payable or to become payable to its officers or employees, (ii) grant any severance or termination pay to, or enter into any employment or severance agreements with, any officer or employee, (iii) enter into any collective bargaining agreement, or (iv) establish, adopt, enter into or amend in any material respect any bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, trust, fund, policy or arrangement for the benefit of any directors, officers or employees; (g) revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP; (h) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of others, other than indebtedness incurred under outstanding lines of credit in the ordinary course of business consistent with past practice; (i) amend or propose to amend its Articles of Incorporation or Bylaws; (j) incur or commit to incur any individual capital expenditure in excess of $5,000 or aggregate capital expenditures in excess of $10,000; (k) amend or terminate any material contract, agreement or license to which it is a party except in the ordinary course of business; (l) waive or release any material right or claim, except in the ordinary course of business; (m) initiate any litigation or arbitration proceeding; (n) accelerate, amend or change the period of exercisability of any options or restricted stock granted to employees of OptaPhone CAG or authorize cash payments in exchange for any options granted under any of such plans; (o) compromise or otherwise settle or adjust any assertion or claim of a deficiency in taxes (or interest thereon or penalties in connection therewith), extend the statute of limitations with any tax authority or file any pleading in court in any tax litigation or any appeal from an asserted deficiency; (p) change any of OptaPhone's CAG’s accounting policies or practices except as may be required by any modification or change in GAAP; (q) change any of OptaPhone's CAG’s personnel policies in any material respect (except for changes contemplated by the Severance Plan); (r) accept orders from the customers listed on the schedule attached hereto as Exhibit H; (s) grant any person a power of attorney or similar authority; or (st) agree in writing or otherwise to take take, any of the actions described in subsections (a) through (rs) above, or any action which is reasonably likely to make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect on the date made (to the extent so limited) or as of the Closing Date.

Conduct of Business; Interim Operations. During the period from --------------------------------------- the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time of the Merger, OptaPhone CAG agrees, subject to the limitations described in Section 5.1(r6.1(r) below, to carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conducted, to pay its debts and taxes when due, subject to good faith disputes over such debts or taxes, to pay or perform its other obligations when due, and, to the extent consistent with such business, to use all commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and key employees, and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees and others having business dealings with it. OptaPhone CAG shall promptly notify Zhone of any event or occurrence where such event or occurrence would result in a breach of any covenant of OptaPhone CAG set forth in this Agreement or cause any representation or warranty of OptaPhone CAG set forth in this Agreement to be untrue as of the date of, or giving effect to, such event or occurrence. Except as expressly contemplated by this Agreement, OptaPhone CAG shall not, without the prior written consent of Zhone: (a) transfer or license to any person or entity or otherwise extend, amend or modify any rights to the OptaPhone CAG Intellectual Property Rights; (b) declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or 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 purchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party; (c) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities (except upon the exercise or conversion of securities outstanding on the date of this Agreement); (d) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division; (e) sell, lease, license or otherwise dispose of any of its properties or assets except for transactions entered into in the ordinary course of business consistent with past practice; (f) take any action to: (i) increase or agree to increase the compensation payable or to become payable to its officers or employees, (ii) grant any severance or termination pay to, or enter into any employment or severance agreements with, any officer or employee, (iii) enter into any collective bargaining agreement, or (iv) establish, adopt, enter into or amend in any material respect any bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, trust, fund, policy or arrangement for the benefit of any directors, officers or employees; (g) revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice or as required by GAAP; (h) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of others, other than indebtedness incurred under outstanding lines of credit in the ordinary course of business consistent with past practice; (i) amend or propose to amend its Articles of Incorporation or Bylaws; (j) incur or commit to incur any individual capital expenditure in excess of $5,000 or aggregate capital expenditures in excess of $10,000; (k) amend or terminate any material contract, agreement or license to which it is a party except in the ordinary course of business; (l) waive or release any material right or claim, except in the ordinary course of business; (m) initiate any litigation or arbitration proceeding; (n) accelerate, amend or change the period of exercisability of any options or restricted stock granted to employees of OptaPhone CAG or authorize cash payments in exchange for any options granted under any of such plans; (o) compromise or otherwise settle or adjust any assertion or claim of a deficiency in taxes (or interest thereon or penalties in connection therewith), extend the statute of limitations with any tax authority or file any pleading in court in any tax litigation or any appeal from an asserted deficiency; (p) change any of OptaPhoneCAG's accounting policies or practices except as may be required by any modification or change in GAAP; (q) change any of OptaPhoneCAG's personnel policies in any material respect (except for changes contemplated by the Severance Plan); (r) accept orders from the customers listed on the schedule attached hereto as Exhibit H; --------- (s) grant any person a power of attorney or similar authority; or (st) agree in writing or otherwise to take take, any of the actions described in subsections (a) through (rs) above, or any action which is reasonably likely to make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect on the date made (to the extent so limited) or as of the Closing Date.