Conduct of Business of the Company Pending the Merger. The Company covenants and agrees that, during the period from the date hereof until the Effective Time, except as expressly contemplated or permitted by this Agreement, or unless Parent shall otherwise agree in advance in writing, the business of the Company and its Subsidiaries shall be conducted in its ordinary course of business consistent in all material respects with past practice and the Company shall use its reasonable best efforts to preserve substantially intact its business organization and its relationships with its suppliers, customers, employees and others with whom they have a material business relationship. The Company shall maintain and repair its assets, including the Owned Real Property, in accordance in all material respects with past practices (normal wear and tear excepted), and shall observe and fulfill all of its obligations under the Leases in all material respects. Between the date of this Agreement and the Effective Time, except as otherwise expressly contemplated or permitted by this Agreement or as set forth on Section 5.1 of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries shall without the prior written consent of Parent (which consent, solely for purposes of this Section 5.1, may be granted via email communications from officers of Parent):
(a) amend or otherwise change its certificate of incorporation or by-laws or any similar organizational documents;
(b) issue, deliver, sell, pledge, dispose of or encumber any shares of capital stock, ownership interests or voting securities, or any options, warrants, convertible securities or other rights of any kind to acquire or receive any shares of capital stock, any other ownership interests or any voting securities (including but not limited to stock appreciation rights, phantom stock or similar instruments), of the Company or any of its Subsidiaries, except for the issuance of Shares upon the exercise of Options or in connection with other stock-based awards outstanding as of the date hereof, in each case, in accordance with the terms of any applicable Company Plan;
(c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for any dividend or distribution by a Subsidiary of the Company paid or payable solely to the Company;
(d) reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire any shares of capital stock of the Comp...
Conduct of Business of the Company Pending the Merger. Except as expressly permitted or required by this Agreement, as set forth in Section 6.1 of the Company Disclosure Letter, or as required by applicable Law, or with the prior written consent of Parent (which consent, in the case of clauses, (g), (k), (n)(i), (o), and (t) (but, in the case of (t), only to the extent such consent related to matters described in (g), (k), (n)(i) or (o)), shall not be unreasonably withheld, delayed or conditioned), during the period from the date hereof to the Effective Time, the Company shall, and shall cause its Subsidiaries to, use commercially reasonably efforts to conduct its business in all material respects in the ordinary course and consistent with past practice and use reasonable commercial efforts, to the extent consistent with the foregoing, to (A) preserve their business organizations substantially intact, (B) maintain their present relationships and goodwill with Governmental Entities, and material customers, suppliers, licensors, licensees, distributors, contractors, partners and others having material business dealings with them and (C) keep available the services of the Company’s present executive officers and their key employees. Without limiting the generality of the foregoing and except as expressly permitted or required by this Agreement, as set forth in Section 6.1 of the Company Disclosure Letter, or as required by applicable Law, during the period from the date hereof to the Effective Time, without the prior written consent of Parent (which consent, in the case of clauses (g), (k), (n)(i), (o) and (u) (but, in the case of (u), only to the extent such consent related to matters described in (g), (k), (n)(i) or (o)), shall not be unreasonably withheld, delayed or conditioned), the Company shall not, and shall cause its Subsidiaries not to:
(a) amend or otherwise change its certificate of incorporation or bylaws or any similar governing or organizational documents;
(b) issue, grant, deliver, sell, authorize, pledge, dispose of, or otherwise encumber any Company Securities, Subsidiary Securities or other rights of any kind to acquire or receive any Company Securities or Subsidiary Securities (except for the issuance of Shares upon the exercise or settlement of (i) Company Equity Awards outstanding as of the date hereof, (ii) options granted in respect of the Current Purchase Period pursuant to the ESPP, and any Shares issued upon the exercise thereof, (iii) Company Equity Awards (including restricted stock u...
Conduct of Business of the Company Pending the Merger. (a) Except as provided in or contemplated by this Agreement or the Transaction Agreements (including the restructuring transactions set forth in the Spinoff Plan), as set forth in Section 6.1 of the Company Disclosure Letter, as prohibited or required by applicable Legal Requirements, or as consented to by Parent, which decision with respect to such consent will not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement to the earlier of the Effective Time and termination of this Agreement, the Company shall, and shall cause each of its Subsidiaries to, conduct its operations in the ordinary course of business and use its commercially reasonable efforts to preserve its business organization and maintain existing relations and goodwill with Governmental Entities, employees, customers, suppliers, creditors, lessors and all other Persons having material business relationships with the Company or any of its Subsidiaries.
(b) The Company shall undertake (and shall cause its Subsidiaries to undertake) the restructuring transactions contemplated by Sections 2.1, 2.2 and 2.3 of the Separation Agreement, but only in accordance with the Spinoff Plan.
Conduct of Business of the Company Pending the Merger. The Company hereby covenants and agrees that, prior to the Effective Time, unless otherwise expressly contemplated by this Agreement or consented to in writing by Parent, it will and will cause each of its subsidiaries to:
(a) operate its business in the usual and ordinary course consistent with past practices;
(b) use its commercially reasonable best efforts to preserve intact its business organization, maintain its rights and franchises, retain the services of its respective key employees and maintain its relationships with its respective customers and suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time;
(c) use its commercially reasonable best efforts to maintain and keep its material properties and assets in as good repair and condition as at present, ordinary wear and tear excepted, and to maintain supplies and inventories in quantities consistent with its customary business practice; and
(d) use its commercially reasonable best efforts to keep in full force and effect insurance and bonds comparable in amount and scope of coverage to that currently maintained.
Conduct of Business of the Company Pending the Merger. During the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.01 of the Company Disclosure Schedule or as consented to in writing in advance by Parent or as otherwise expressly permitted or required by this Agreement, the Company shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course consistent with past practice prior to the Closing and, to the extent consistent therewith, use commercially reasonable efforts to preserve intact its current business organizations, keep available the services of its current officers, employees and consultants and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it. In addition to and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, except as otherwise set forth in Section 5.01 of the Company Disclosure Schedule or as otherwise expressly permitted or required pursuant to this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, without Parent’s prior written consent:
Conduct of Business of the Company Pending the Merger. Except as expressly required by this Agreement or as set forth in Section 6.1 of the Company Disclosure Schedule, during the period from the date of this Agreement to the earliest of (i) such time as designees of Parent first constitute at least a majority of the Company Board pursuant to Section 1.4(a) and (ii) the Effective Time, the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice, and, to the extent consistent therewith, the Company will use its reasonable best efforts to preserve intact its business organization, to keep available the services of its current officers and employees and to preserve the goodwill of and maintain satisfactory relationships with those Persons having business relationships with the Company. Without limiting the generality of the foregoing and except as otherwise expressly provided in or contemplated by this Agreement, during the period from the date of this Agreement to the Effective Time, without the prior written consent of Parent, the Company will not, and will cause its Subsidiaries not to:
(a) amend or otherwise change its certificate of incorporation or bylaws or any similar governing instruments;
(b) issue, deliver, sell, pledge, dispose of or encumber any Company Securities or other rights of any kind to acquire or receive any Company Securities, including stock appreciation rights, phantom stock or similar instruments (except for (i) the issuance of Shares upon the exercise of Options outstanding on the date hereof or pursuant to the ESPP in respect of the offering period thereunder ending on December 31, 2006 or (ii) issuances in accordance with the Rights Agreement);
(c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(d) adjust, recapitalize, reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire any shares of capital stock or other equity interests of the Company (other than the acquisition of Shares tendered by directors, officers, employees or former employees in connection with a cashless exercise of Options or in order to pay Taxes in connection with the exercise of Options, in each case pursuant to the terms of a Company Plan);
(e) make or offer to make any acquisition, by means of a merger or otherwise, of any business, assets or securities, or any sale, lease, encumbrance or other disposition of any busine...
Conduct of Business of the Company Pending the Merger. Prior to the Effective Time, the Company agrees (except as expressly contemplated or permitted by this Agreement or as set forth in Section 5.1 of the Company Disclosure Schedule, or to the extent that Acquiror shall otherwise consent in writing, such consent not to be unreasonably withheld or delayed, as follows:
Conduct of Business of the Company Pending the Merger. 1) An Internal Revenue Service audit regarding the Company’s capitalization of certain temporary labor and supplies related to opening new stores in 2006 and the determination of the useful life of an HVAC system resolved on the terms specified on attached Appendix 3.10(2) above.
SECTION 5.1 (e)
Conduct of Business of the Company Pending the Merger. Except as expressly required by this Agreement, as may be required by applicable Law or as set forth in Section 4.1 of the Company Disclosure Schedule, during the period from the date of this Agreement to the earlier to occur of the termination of this Agreement pursuant to its terms and the Effective Time, the Company will, and will cause each of its Subsidiaries to, conduct its operations according to its ordinary and usual course of business consistent with past practice (including performance of all Contracts in effect as of the date hereof, or entered into on or after the date hereof without violation of this Agreement, except that any acquisition of the kind described in Section 4.1(f) will be subject to Partent’s approval) and, to the extent consistent therewith, the Company will, and will cause each of its Subsidiaries to, use reasonable best efforts to preserve intact its business organization and management, to keep available the services of its current officers and employees, to maintain its current rights and franchises and to preserve the goodwill of and maintain satisfactory relationships with those Persons having business relationships with it (including any agent doing business with any Company Insurance Subsidiary). Without limiting the generality of the foregoing and except as otherwise expressly provided in or contemplated by this Agreement, as may be required by applicable Law or as set forth in Section 4.1 of the Company Disclosure Schedule, during the period from the date of this Agreement to the earlier to occur of the termination of this Agreement pursuant to its terms and the Effective Time, without the prior written consent of Parent (provided that such consent shall not be unreasonably withheld, conditioned or delayed with respect to paragraphs (e), (g), (h), (k), (l), (m), (r), (s), (t), (u) or (w) (to the extent any agreement or commitment referenced in Section 4.1(w) is with respect to any of the aforementioned paragraphs of Section 4.1) of this Section 4.1, and provided further that the foregoing proviso shall not apply (A) in the case of paragraphs
Conduct of Business of the Company Pending the Merger. Except as contemplated by this Agreement or as expressly agreed to in writing by Acquiror, during the period from the date of this Agreement to the Effective Time, each of the Company and its subsidiaries will conduct their respective operations according to its ordinary course of business consistent with past practice, and will use all commercially reasonable efforts to preserve intact its business organization, to keep available the services of its officers and employees and to maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it and will take no action which would materially adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Effective Time, the Company will not nor will it permit any of its subsidiaries to, without the prior written consent of Acquiror, which consent shall not be unreasonably withheld:
(a) amend its certificate of incorporation or by-laws;
(b) authorize for issuance, issue, sell, deliver, grant any options for, or otherwise agree or commit to issue, sell or deliver any shares of any class of its capital stock or any securities convertible into shares of any class of its capital stock, except (i) pursuant to and in accordance with the terms of currently outstanding convertible securities, warrants and options, and (ii) shares granted to employees as matching contributions pursuant to the Company's 401(k) Plan in an aggregate amount not to exceed 40,000 shares;
(c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend (other than a dividend of stock of Shared Technologies Cellular, Inc. owned by the Company) or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock or purchase, redeem or otherwise acquire any shares of its own capital stock or of any of its subsidiaries, except as otherwise expressly provided in this Agreement;
(d) (i) create, incur, assume, maintain or permit to exist any debt for borrowed money other than under existing lines of credit in the ordinary course of business consistent with past practice; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except fo...
