Common use of CONDUCT OF BUSINESS OF ACQUIROR Clause in Contracts

CONDUCT OF BUSINESS OF ACQUIROR. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, except as expressly contemplated by this Agreement, Acquiror shall not do, cause or permit any of the following, or allow, cause or permit any of its subsidiaries (other than Target) to do, cause or permit any of the following, without the prior written consent of Target, which will not be unreasonably withheld, unless such conduct is required or contemplated by this Agreement or is done with respect to Acquiror's Class B Warrants: declare, set aside, or pay any dividends on or make any other distributions in respect of its capital stock, or split, combine or reclassify any of its capital stock; amend its articles of incorporation, for a reason other than authorizing additional shares of capital stock of Acquiror; repurchase 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 to it or its subsidiaries (other than Target); issue any capital stock for less than current market value other than in connection with the conversion of Acquiror's 6% secured convertible debentures due 2002, and the exercise of certain warrants issued as part of the related financing transaction, in with connection a financing transaction or transactions resulting in aggregate proceeds of up to $5,000,000 or in connection with the issuance and conversion of certain convertible debt instruments issued to certain suppliers of Acquiror from time to time; revalue any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business in an aggregate amount not to exceed $1,000,000; or take or agree in writing or otherwise to take, any of the actions described above, or any action which would make any of its representations or warranties contained in this Agreement untrue or incorrect or prevent it from performing or cause it not to perform its covenants hereunder.

CONDUCT OF BUSINESS OF ACQUIROR. During Except as contemplated by this Agreement, during the period from the date of this Agreement and continuing until hereof to the earlier of the termination of this Agreement or the Effective Time, except as expressly contemplated by this AgreementClosing Date, Acquiror shall not do, cause or permit any of the following, or allow, cause or permit any of its subsidiaries (other than Target) to do, cause or permit any of the followingwill not, without the prior written consent of Targetthe Company; (a) amend its certificate of incorporation (other than to provide for the issuance of preferred stock and to increase its authorized shares of common stock or any series thereof); (b) issue, which will not be unreasonably withheldsell, unless deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class; PROVIDED, HOWEVER, that Acquiror may (i) issue shares of its capital stock upon the exercise of options outstanding on the date hereof, (ii) grant options to purchase shares of its capital stock (and issue any shares of capital stock upon exercise of such conduct is required options) pursuant to employee compensation arrangements consistent with past practices, (iii) issue shares of common stock upon conversion of any shares of capital stock, and (iv) issue shares of capital stock at or contemplated by this Agreement or is done with respect to Acquiror's Class B Warrants: above fair market value; (c) declare, set aside, aside or pay any dividends on dividend or make other distribution (whether in cash, stock or property or any other distributions combination thereof) in respect of its capital stock, except for dividends declared and paid consistent with Acquiror's past practice; (d) (i) enter into a transaction or split, combine or reclassify any of its capital stock; amend its articles of incorporation, (ii) except for a reason other than authorizing additional shares of capital stock of Acquiror; repurchase 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 Indebtedness incurred in connection with Section 2.01(b), create, incur or assume any termination Indebtedness not currently outstanding (including obligations in respect of service capital leases but excluding indebtedness incurred in refinancing, replacement or substitution of indebtedness that is currently outstanding) that in the case of clauses (i) or (ii) would result in a down-grading below investment grade in the rating of any rated debt securities of the Company by both Standard & Poors Corporation and Xxxxx'x Investors Service; (e) sell, lease or dispose of any assets material to it or Acquiror and its subsidiaries (Subsidiaries taken as a whole, other than Target); issue any capital stock for less than current market value other than in connection with the conversion of Acquiror's 6% secured convertible debentures due 2002, and the exercise of certain warrants issued as part of the related financing transaction, in with connection a financing transaction or transactions resulting in aggregate proceeds of up to $5,000,000 or in connection with the issuance and conversion of certain convertible debt instruments issued to certain suppliers of Acquiror from time to time; revalue any of its assets, including without limitation writing down the value (i) sales of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices and (ii) in an aggregate amount not connection with or in exchange for acquisitions of assets related to exceed $1,000,000the business of Acquiror; (f) make any material change in the lines of business in which it participates or is engaged; or take (g) take, or agree in writing or otherwise to take, any of the foregoing actions described above, or any action which other actions that would (i) make any representation or warranty of its representations or warranties Acquiror contained in this Agreement untrue or incorrect incorrect, in any material respect, as of the date when made or prevent it from performing as of the Closing Date, (ii) result in any of the conditions to Closing in Article VII of this Agreement not being satisfied in any material respect or cause it not to perform its covenants hereunder(iii) be inconsistent, in any material respect, with the terms of this Agreement or the Transactions. 6.05.

CONDUCT OF BUSINESS OF ACQUIROR. During Except as contemplated by this Agreement, during the period from the date of this Agreement and continuing until hereof to the earlier of the termination of this Agreement or the Effective Time, except as expressly contemplated by this AgreementClosing Date, Acquiror shall not do, cause or permit any of the following, or allow, cause or permit any of its subsidiaries (other than Target) to do, cause or permit any of the followingwill not, without the prior written consent of Targetthe Company; (a) amend its certificate of incorporation (other than to provide for the issuance of preferred stock and to increase its authorized shares of common stock or any series thereof); (b) issue, which will not be unreasonably withheldsell, unless deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class; PROVIDED, HOWEVER, that Acquiror may (i) issue shares of its capital stock upon the exercise of options outstanding on the date hereof, (ii) grant options to purchase shares of its capital stock (and issue any shares of capital stock upon exercise of such conduct is required options) pursuant to employee compensation arrangements consistent with past practices, (iii) issue shares of common stock upon conversion of any shares of capital stock, and (iv) issue shares of capital stock at or contemplated by this Agreement or is done with respect to Acquiror's Class B Warrants: above fair market value; (c) declare, set aside, aside or pay any dividends on dividend or make other distribution (whether in cash, stock or property or any other distributions combination thereof) in respect of its capital stock, except for dividends declared and paid consistent with Acquiror's past practice; (d) (i) enter into a transaction or split, combine or reclassify any of its capital stock; amend its articles of incorporation, (ii) except for a reason other than authorizing additional shares of capital stock of Acquiror; repurchase 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 Indebtedness incurred in connection with Section 2.01(b), create, incur or assume any termination Indebtedness not currently outstanding (including obligations in respect of service capital leases but excluding indebtedness incurred in refinancing, replacement or substitution of indebtedness that is currently outstanding) that in the case of clauses (i) or (ii) would result in a down-grading below investment grade in the rating of any rated debt securities of the Company by both Standard & Poors Corporation and Moodx'x Xxxestors Service; (e) sell, lease or dispose of any assets material to it or Acquiror and its subsidiaries (Subsidiaries taken as a whole, other than Target); issue any capital stock for less than current market value other than in connection with the conversion of Acquiror's 6% secured convertible debentures due 2002, and the exercise of certain warrants issued as part of the related financing transaction, in with connection a financing transaction or transactions resulting in aggregate proceeds of up to $5,000,000 or in connection with the issuance and conversion of certain convertible debt instruments issued to certain suppliers of Acquiror from time to time; revalue any of its assets, including without limitation writing down the value (i) sales of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices and (ii) in an aggregate amount not connection with or in exchange for acquisitions of assets related to exceed $1,000,000the business of Acquiror; (f) make any material change in the lines of business in which it participates or is engaged; or take (g) take, or agree in writing or otherwise to take, any of the foregoing actions described above, or any action which other actions that would (i) make any representation or warranty of its representations or warranties Acquiror contained in this Agreement untrue or incorrect incorrect, in any material respect, as of the date when made or prevent it from performing as of the Closing Date, (ii) result in any of the conditions to Closing in Article VII of this Agreement not being satisfied in any material respect or cause it not to perform its covenants hereunder(iii) be inconsistent, in any material respect, with the terms of this Agreement or the Transactions. 6.05.