Common use of Conduct of Business of Buyer Clause in Contracts

Conduct of Business of Buyer. Except as set forth in Section 6.3 of the Buyer’s Disclosure Schedules, during the period from the date of this Agreement to and through the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, except as otherwise contemplated by this Agreement, as required by any applicable Law or as Seller shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Buyer shall conduct its businesses in the ordinary course of business in all material respects. Except as set forth in Section 6.3 of the Buyer’s Disclosure Schedules, during the period from the date of this Agreement to and through the Closing Date, except as otherwise contemplated by this Agreement, as required by any applicable Law or as Seller shall otherwise consent in writing which consent shall not be unreasonably withheld, conditioned or delayed, Buyer shall not, and shall cause its Controlled Affiliates not to, do any of the following: (A) other than dividends not in excess of $0.86 per share per quarter, make any distribution (whether in cash, stock, Equity Rights or property) or declare, pay or set aside any dividend with respect to, or split, combine, redeem, reclassify, purchase or otherwise acquire directly, or indirectly, any equity interest or shares of capital stock of, or other equity or voting or non-voting interest in Buyer or make any other changes in the capital structure of Buyer; (B) issue, sell, deliver, pledge, transfer, dispose of or encumber any equity interest or capital stock of or other equity or voting interest in Buyer or any Equity Rights of Buyer, other than issuances of Equity Rights to employees in the ordinary course of business consistent with past practice pursuant to Buyer’s equity compensation plans, issuances of Buyer Common Stock and Buyer Preferred Stock upon conversion or exercise of any convertible security, option or other Equity Right outstanding as of June 9, 2009 and other than issuances of Buyer Common Stock or Buyer Series B Preferred Stock at a price (net of any underwriting or distribution discount or commission) not lower than the lowest closing market price of the Buyer Common Stock on the NYSE during the five trading days immediately prior to the date on which Buyer agrees to a binding agreement to effect such transaction; (C) amend or modify any Existing Stockholder Agreement, or terminate any Existing Stockholder Agreement, or waive any rights, claims or obligations under or relating to any Existing Stockholder Agreement; (D) amend in any material respect any provision of Buyer’s Organizational Documents in a manner that would adversely affect the benefits, economic or otherwise, of the transactions contemplated by this Agreement to Seller; (E) merge or consolidate with any Person or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, but (other than with respect to a liquidation or dissolution) only to the extent any such action or actions would be reasonably likely to prevent, materially delay or impair the consummation of the transactions contemplated hereunder; (F) enter into any acquisition agreement, or make any acquisition, that is reasonably likely to prevent, materially delay or impair the consummation of the transactions contemplated hereunder; or (G) authorize or enter into any Contract or commitment with respect to any of the foregoing.

Conduct of Business of Buyer. Except as set forth in Section 6.3 of the Buyer’s Disclosure Schedules, during the period from (a) From the date of this Agreement to and through the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, except (i) as set forth in Section 6.01 of the Buyer Disclosure Schedule, (ii) as otherwise expressly contemplated by this Agreement, (iii) as required by any applicable Law or (iv) as Seller shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Buyer shall, and shall cause its Subsidiaries to, conduct its business in the ordinary course of business consistent with past practice in all material respects. (b) Without limiting the generality of Section 6.01(a), from the date of this Agreement to and through the earlier of the Closing and the termination of this Agreement in accordance with its terms, except (i) as set forth in Section 6.01 of the Buyer Disclosure Schedule, (ii) as otherwise expressly contemplated by this Agreement, (iii) as required by any applicable Law or (iv) as Seller shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Buyer shall conduct its businesses in the ordinary course of business in all material respects. Except as set forth in Section 6.3 of the Buyer’s Disclosure Schedules, during the period from the date of this Agreement to and through the Closing Date, except as otherwise contemplated by this Agreement, as required by any applicable Law or as Seller shall otherwise consent in writing which consent shall not be unreasonably withheld, conditioned or delayed, Buyer shall not, and shall cause its Controlled Affiliates Subsidiaries not to, do any of the following: (A) other than common stock dividends not in excess of $0.86 0.15 per share per quarter, and other than as required by the terms of any preferred security, make any distribution (whether in cash, stock, Equity Rights or property, but not including any distribution that results in an adjustment under Section 2.09) or declare, pay or set aside any dividend with respect to, or split, combine, redeem, reclassify, purchase or otherwise acquire directly, or indirectly, any equity interest or shares of capital stock of, or other equity or voting or non-voting interest in Buyer or make any other changes in the capital structure of Buyer; (B) issue, sell, deliver, pledge, transfer, dispose of or encumber any equity interest or capital stock of or other equity or voting interest in Buyer or any Equity Rights of Buyer, other than issuances of Equity Rights to employees in the ordinary course of business consistent with past practice pursuant to Buyer’s equity compensation plans, issuances of Buyer Common Stock and Buyer Preferred Stock upon conversion or exercise of any convertible security, option or other Equity Right outstanding as of June 9, 2009 and other than issuances of Buyer Common Stock or Buyer Series B Preferred Stock at a price (net of any underwriting or distribution discount or commission) not lower than the lowest closing market price of the Buyer Common Stock on the NYSE during the five trading days immediately prior to the date on which Buyer agrees to a binding agreement to effect such transaction; (C) amend or modify any Existing Stockholder Agreement, or terminate any Existing Stockholder Agreement, or waive any rights, claims or obligations under or relating to any Existing Stockholder Agreement; (D) amend in any material respect any provision of Buyer’s Organizational Documents in a manner that would adversely affect the benefits, economic or otherwise, of the transactions contemplated by this Agreement to Seller; (EC) merge or consolidate with any Person or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, but (other than with respect to a liquidation or dissolution) only to the extent any such action or actions would be reasonably likely expected to prevent, materially delay or impair the consummation of the transactions contemplated hereunder; (FD) enter into any acquisition agreement, or make any acquisition, that is would be reasonably likely expected to prevent, materially delay or impair the consummation of the transactions contemplated hereunder; (E) take any action that, if taken after the Closing without Seller’s consent, would constitute a breach of Section 7.15(a) (it being understood that, for purposes of this Section 6.01(b)(iv)(E), Seller may withhold, condition or delay its consent in its sole discretion); or (GF) authorize or enter into any Contract or commitment with respect to any of the foregoing.

Conduct of Business of Buyer. Except as set forth in Section 6.3 of the Buyer’s Disclosure Schedules, during the period from From the date of this Agreement to and through until the earlier of (i) the Closing Date Date, and (ii) the termination of this Agreement in accordance with its termsArticle 6, except as otherwise contemplated or permitted by this Agreement, as required Buyer shall (i) conduct the Buyer Business in the Ordinary Course; (ii) use all commercially best efforts to maintain the goodwill of Buyer and preserve the Buyer Business and its relationships with all clients, landlords, suppliers, Buyer Employees and others having business relationships with Buyer; (iii) use commercially best efforts to continue in force all policies of insurance maintained by any applicable Law or for the benefit of Buyer; (iv) conduct the Buyer Business in a manner that preserves the Required Cash Balance; and (v) not, except in the Ordinary Course or as Seller shall otherwise consent contemplated or permitted by this Agreement (including, for greater certainty, completing the refinancing in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Buyer shall conduct its businesses in accordance with the ordinary course of business in all material respects. Except as terms and conditions set forth in Section 6.3 Schedule 4.1(d) to this Agreement), without the prior written consent of the Buyer’s Disclosure Schedules, during the period from the date of this Agreement Sirius (such consent not to and through the Closing Date, except be unreasonably withheld or delayed): (a) other than as otherwise contemplated by this Agreementagreement, as required by cause, adopt or propose any applicable Law or as Seller shall otherwise consent in writing which consent shall not be unreasonably withheld, conditioned or delayed, Buyer shall not, and shall cause its Controlled Affiliates not to, do amendments to the terms of any of its outstanding securities, its constating documents (including the following: (A) other than dividends not in excess of $0.86 per share per quarter, make any distribution (whether in cash, stock, Equity Rights or propertyBuyer Shareholders Agreement) or declare, pay or set aside any dividend with respect to, or split, combine, redeem, reclassify, purchase or otherwise acquire directly, or indirectly, any equity interest or shares of capital stock of, or other equity or voting or non-voting interest in Buyer or make any other changes in the capital structure of Buyerorganizational instruments; (Bb) issue, sell, deliverpledge, dispose of, encumber, agree or offer to issue, sell, pledge, transfer, dispose of or encumber any additional securities, or any options, restricted share units, warrants, calls, conversion privileges or rights of any kind to acquire any of its securities other than in connection with its currently existing compensation plans (including Buyer’s long term incentive plan and stock option plan) or Buyer Benefit Plans or in accordance with the terms of Buyer’s outstanding convertible debentures provided that, in the case of such permitted issuances, Buyer shall provide Sirius with prior written notice of such issuances; (c) split, combine or reclassify any outstanding securities; (d) redeem, purchase or offer to purchase any of its securities; (e) except as may be required as a result of a change in Law or Canadian GAAP, change any of the accounting principles or practices used by it which would materially affect its reported consolidated assets, liabilities or results of operations; (i) acquire (by merger, consolidation, or acquisition of shares or assets or otherwise) any corporation, partnership or other business organization or division thereof or any material equity interest therein or (ii) authorize or make any new capital stock expenditure or expenditures or investments exceeding $500,000 in the aggregate; (g) enter into, amend or terminate any material employment, labour, consulting or service contract or Buyer Benefit Plan, or increase the compensation payable to any senior officer of or other equity or voting interest in Buyer or any Equity Rights of Buyer, other than issuances of Equity Rights to employees in accordance with existing employment arrangements, compensation plans approved by the ordinary course of business board, consistent with past practice pursuant and other than Ordinary Course compensation adjustments; (h) provide any material incentives by way of cash payments, securities or otherwise, contingent or actual, to any senior Employee of Buyer in the aggregate in excess of $250,000; (i) incur, create, assume or guarantee any obligations or liabilities (fixed or contingent) which are individually or in the aggregate in excess of $5,000,000, exclusive of any draw-downs under any of Buyer’s equity compensation plansexisting credit facilities which shall be permitted, issuances provided that (i) any such amounts in excess of Buyer Common Stock and Buyer Preferred Stock upon conversion or exercise of any convertible security, option or other Equity Right $250,000 that remain outstanding as of June 9the Closing shall be deducted from the Buyer’s calculation of Cash for purposes of Buyer’s Estimated Closing Cash Balance and Buyer’s Closing Cash Balance, 2009 and other than issuances (ii) any such amounts in excess of Buyer Common Stock or Buyer Series B Preferred Stock at a price (net of any underwriting or distribution discount or commission) not lower than the lowest closing market price of the Buyer Common Stock on the NYSE during the five trading days immediately prior $250,000 shall be subject to the date on which Buyer agrees to a binding agreement to effect such transactionprior consent of Sirius XM; (Cj) amend settle or modify compromise any Existing Stockholder Agreementpending Claim for a cash settlement amount in excess of $250,000 in the aggregate; (k) sell, grant a licence in, encumber or otherwise dispose of any of its material assets, securities, properties, interests or businesses having a value of $250,000 in the aggregate; (l) allow to lapse or terminate, or terminate fail to renew, any Existing Stockholder AgreementBuyer Permit; (m) receive, or enter into or be party to any arrangement to receive, any payment prior to Closing that would in the Ordinary Course or based on customary industry practices be received following Closing; (n) write off or waive any rights, claims accounts receivable which are individually or obligations under or relating to any Existing Stockholder Agreementin the aggregate greater than $250,000 and that have not previously been reserved against as doubtful accounts; (Do) amend fail to pay or otherwise satisfy when due any accounts payable, liabilities or obligations that in the aggregate exceed $250,000 or make any material respect any provision change to its practices and policies regarding the payment and collection of Buyer’s Organizational Documents in a manner that would adversely affect the benefits, economic or otherwise, of the transactions contemplated by this Agreement to Selleraccounts receivable and accounts payable and liabilities; (Ep) merge materially amend, renew, terminate or consolidate with enter into any Person or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, but (other than with respect to a liquidation or dissolution) only to the extent any such action or actions would be reasonably likely to prevent, materially delay or impair the consummation of the transactions contemplated hereunderBuyer Material Contract; (Fq) change the manner in which Taxes have been reported or enter into any agreement, waiver or settlement in respect of Taxes in excess of $250,000 in the aggregate; or (r) enter into any acquisition agreement, commitment or make any acquisition, that is reasonably likely obligation to prevent, materially delay or impair the consummation of the transactions contemplated hereunder; or (G) authorize or enter into any Contract or commitment with respect to do any of the foregoing.