Conduct of the Company. The Company covenants and agrees that, except for matters (i) expressly permitted or expressly contemplated by this Agreement, (ii) set forth on Part 6.01 of the Company Disclosure Schedule, (iii) reasonably undertaken in connection with any COVID-19 Measures, (iv) undertaken with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed), (v) required by Applicable Law or the rules and regulations of Nasdaq, from the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 8 hereof, the Company (A) shall, and shall cause each of its Subsidiaries to use commercially reasonable efforts to (1) conduct its business in the ordinary course in all material respects, substantially consistent with past practice, (2) to the extent consistent with the foregoing clause (1), maintain its business as a going concern and (3) keep available the services of its current officers and key employees and to preserve the goodwill of and maintain satisfactory relationships with those Persons having material business relationships with the Company and its Subsidiaries, and (B) shall not, and shall cause each of its Subsidiaries not to:
(a) amend the Company’s certificate of incorporation or bylaws, or amend any certificate of incorporation or bylaws, or other comparable charter or organizational documents, of the Company’s Subsidiaries;
(b) other than with respect to a direct or indirect wholly owned Subsidiary of the Company, (i) establish a record date for, declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, or enter into any agreement with respect to the voting of, any capital stock of the Company or any of its Subsidiaries (or securities convertible or exchangeable therefor), (ii) split, reverse split, combine, subdivide or reclassify or otherwise amend the terms of any capital stock (or securities convertible or exchangeable therefor) of the Company or any of its Subsidiaries, (iii) except as expressly provided in Section 6.01(c), issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of capital stock of the Company or any of its Subsidiaries (or securities convertible or exchangeable therefor), or (iv) purchase, redeem or otherwise acquire or offer to purchase, redeem or acquire any Company Securities, except for the net settleme...
Conduct of the Company. From the date hereof until the Effective Time, except (w) as expressly required by this Agreement, (x) as set forth in Section 6.01 of the Company Disclosure Schedule, (y) as required by Applicable Law made available to Parent prior to the date hereof, or (z) with the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course consistent with past practice. Without limiting the generality of the foregoing, the Company shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its material foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations, (iii) keep available the services of its officers and Key Employees and (iv) maintain satisfactory relationships with its customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except (i) as expressly required by this Agreement, (ii) as set forth in Section 6.01 of the Company Disclosure Schedule, (iii) as required by Applicable Law or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), from the date hereof until the Effective Time or the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its articles of incorporation, bylaws or other similar organizational documents (whether by merger, consolidation or otherwise);
(b) (i) split, combine or reclassify any shares of its capital stock, (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, other than dividends by any of its wholly owned Subsidiaries or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary Securities, except in connection with repurchases of Company Stock underlying equity awards listed on Section 6.01(b) of the Company Disclosure Schedule granted to Service Providers pursuant to the terms of the Company Stock Plans;
(c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any sha...
Conduct of the Company. From the date of this Agreement until the Closing or the earlier termination of this Agreement in accordance with Article 8 (the “Pre-Closing Period”), except as (i) expressly required or expressly contemplated by this Agreement, (ii) set forth in Section 5.01 of the Company Letter, (iii) required by applicable Law or (iv) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, (A) conduct its business in all material respects in the ordinary course of business consistent with past practice, (B) use its reasonable best efforts to preserve intact in all material respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of the Company or any of its Subsidiaries shall be required to (or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationships. In addition to and without limiting the generality of the foregoing, during the Pre-Closing Period, except as (w) expressly required or expressly contemplated by this Agreement, (x) set forth in Section 5.01 of the Company Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries not to:
Conduct of the Company. From the date hereof until the Effective Time, the Company and the Subsidiaries shall conduct their business in the ordinary course consistent with past practice and shall use their best efforts to preserve intact their business organizations and relationships with third parties and to keep available the services of their present officers and employees. Without limiting the generality of the foregoing, from the date hereof until the Effective Time:
(a) the Company will not adopt or propose any change in its Certificate of Incorporation or bylaws;
(b) the Company will not, and will not permit any Subsidiary to, merge or consolidate with any other Person or acquire a material amount of assets of any other Person;
(c) the Company will not, and will not permit any Subsidiary to, sell, lease, license or otherwise dispose of any material assets or property except (i) pursuant to existing contracts or commitments and (ii) in the ordinary course consistent with past practice;
(d) the Company will not, and will not permit any Subsidiary to, settle or compromise any suit or claims or threatened suit or claim relating to the transactions contemplated hereby;
(e) the Company will not, and will not permit any Subsidiary to (i) take agree or commit to take any action that would make any representation and warranty of the Company hereunder (including without limitation, the Company's representations and warranties set forth in Section 4.10) inaccurate in any respect at, or as of any time prior to, the Effective Time or (ii) omit or agree or commit to omit to take any action necessary to prevent any such representation or warranty (including without limitation, the Company's representations and warranties set forth in Section 4.10) from being inaccurate in any respect at any such time; and
(f) the Company will not, and will not permit any Subsidiary to, agree or commit to do any of the foregoing.
Conduct of the Company. Except as required pursuant to the Spin-Off Transaction or the "F" Reorganization, from the date hereof until the Effective Time, the Company shall, in all material respects, conduct its business in the ordinary and usual course consistent with past practices and shall use reasonable efforts to:
(a) preserve intact its business and its relationships with Payors, referral sources, customers, suppliers, patients, employees and others having business relations with it;
(b) maintain and keep its properties and assets in good repair and condition consistent with past practice as is material to the conduct of the business of the Company;
(c) continuously maintain insurance coverage substantially equivalent to the insurance coverage in existence on the date hereof. In addition, without the written consent of APP, the Company shall not:
(1) amend its articles or certificate of incorporation or bylaws, or other charter documents;
(2) issue, sell or authorize for issuance or sale, shares of any class of its securities (including, but not limited to, by way of stock split, dividend, recapitalization or other reclassification) or any subscriptions, options, warrants, rights or convertible securities, or enter into any agreements or commitments of any character obligating it to issue or sell any such securities;
(3) redeem, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or any option, warrant or other right to purchase or acquire any such shares;
(4) declare or pay any dividend or other distribution (whether in cash, stock or other property) with respect to its capital stock (except as expressly contemplated herein);
(5) voluntarily sell, transfer, surrender, abandon or dispose of any of its assets or property rights (tangible or intangible) other than the sale of inventory, if any, in the ordinary course of business consistent with past practices;
(6) grant or make any mortgage or pledge or subject itself or any of its properties or assets to any lien, charge or encumbrance of any kind, except liens for taxes not currently due and except for liens which arise by operation of law;
(7) voluntarily incur or assume any liability or indebtedness (contingent or otherwise), except in the ordinary course of business or which is reasonably necessary for the conduct of its business;
(8) make or commit to make any capital expenditures which are not reasonably necessary for the conduct of its business;
(9) grant any increase in the compensa...
Conduct of the Company. From the date hereof until the Effective Time, the Company shall conduct its business in the ordinary course consistent with past practices and shall use its reasonable best efforts to preserve intact its business organizations and relationships with third parties and to keep available the services of its present officers and employees. Without limiting the generality of the foregoing, except with the prior written consent of Parent (which shall not be unreasonably withheld) as provided by this Agreement, the Transaction Agreements, or as set forth in Section 6.01 the Company Disclosure Schedule, from the date hereof until the Effective Time, the Company shall not:
(a) declare, set aside or pay any dividend or other distribution with respect to any share of its capital stock, other than quarterly cash dividends on customary record and payment dates on the Shares not to exceed $0.1325 per Share per quarter;
(b) repurchase, redeem or otherwise acquire or offer to acquire any shares of capital stock or other securities of, or other ownership interests in, the Company;
(c) issue, deliver, pledge, encumber or sell any Shares, or any securities convertible into Shares, or any Share Equivalents or other rights, warrants or options to acquire any Shares, other than issuances of shares pursuant to Share Equivalents that are outstanding on the date hereof;
(d) amend its Articles of Incorporation or By-Laws or other comparable organizational documents or amend any material terms of the outstanding securities of the Company;
(e) merge or consolidate with any other Person, make any investment in any other Person, including any joint venture, or acquire the stock or assets or rights of any other Person other than (i) pursuant to existing contracts or commitments as set forth in the Company Disclosure Schedule, (ii) in each case in the ordinary course of business consistent with past practices, purchases of raw materials, services and items used or consumed in the manufacturing process, or (iii) capital expenditures made consistent with the Company's capital expenditure program, in an amount not to exceed $40 million in the aggregate for 2000 and $38.5 million in the aggregate for 2001;
(f) incur any indebtedness (whether or not reflected on the Company Balance Sheet) for borrowed money, guarantee any such indebtedness, enter into any new or amend existing facilities relating to indebtedness, issue or sell any debt securities or warrants or other rights to acquire any de...
Conduct of the Company. From the date hereof until the Effective Time, except as disclosed on Schedule 6.01, the Company agrees to conduct its and the Company Subsidiaries’ businesses in the ordinary course and to use commercially reasonable efforts to preserve intact its and the Company Subsidiaries’ assets, business organizations and relationships with third parties and to keep available the services of present officers and employees. Without limiting the generality of the foregoing, from the date hereof until the Effective Time, except as disclosed on Schedule 6.01, the Company will not, and will cause each Company Subsidiary not to:
(a) adopt or propose any change in the certificate of incorporation, bylaws or similar organizational documents of the Company or any Company Subsidiary;
(b) transfer, issue, sell, pledge, encumber or dispose of any shares of capital stock or other equity securities of the Company or the Company Subsidiaries (other than issuances of Voting Common Shares upon exercise of any Company Warrants), or repurchase, redeem or otherwise acquire any shares of capital stock or other equity securities of the Company or the Company Subsidiaries (other than repurchases made in connection with the termination of employment of employees of the Company or any Company Subsidiaries pursuant to existing contracts or commitments disclosed to Buyer prior to the date hereof);
(c) declare, issue, make or pay any dividend or other distribution of assets to its shareholders (other than dividends paid by any Company Subsidiary to the Company or other Company Subsidiaries);
(d) make or obtain any loan or other extension of credit to or from, or make any guaranty for the benefit of any director, officer, employee or stockholder of the Company or the Company Subsidiaries (other than pursuant to existing commitments or obligations under, or otherwise in accordance with, any Employee Plan);
(e) make any investment in, or acquire any assets or properties from any other Person except (i) pursuant to existing contracts or commitments disclosed to Buyer prior to the date hereof, (ii) otherwise in the ordinary course of business and (iii) other investments and acquisitions not in excess of $10,000,000 in the aggregate;
(f) sell, lease, license or otherwise dispose of any material assets or property except (i) pursuant to existing contracts or commitments disclosed to Buyer prior to the date hereof, (ii) otherwise in the ordinary course of business and (iii) other dispositions not in e...
Conduct of the Company. From the date hereof until the Effective Time, the Company and its subsidiaries shall conduct their business in the ordinary course consistent with past practice and shall use commercially reasonable efforts to preserve intact their business organizations and relationships with third parties and to keep available the services of their present officers and
Conduct of the Company. (a) Except as expressly permitted by this Agreement or as required by applicable Law, from the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company will conduct its and its Subsidiaries' business in the ordinary course of business; provided that, notwithstanding the foregoing, (i) no action by the Company or its Subsidiaries with respect to matters expressly permitted by an exception to a subclause of Section 5.01(b) will be deemed a breach of this Section 5.01(a) and (ii) the Company and its Subsidiaries' failure to take any action prohibited by Section 5.01(b) will not be a breach of this Section 5.01(a).
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, except as (i) otherwise expressly permitted by this Agreement, (ii) set forth on Schedule 5.01(b), (iii) consented to in writing by Buyer, (iv) required by any Material Contract or Law or (v) in connection with COVID-19 Measures, the Company will not, and will not permit its Subsidiaries to, take any action which, if taken after the date of the Latest Balance Sheet and prior to the date hereof, would have been required to be disclosed on Schedule 3.07(b) pursuant to Section 3.07(b).
(c) For the avoidance of doubt, nothing contained herein shall permit Buyer or Merger Sub to control or direct the operation of the Company and its Subsidiaries prior to the Closing.
(d) Nothing in this Section 5.01 shall preclude the Company or any Subsidiary from paying any Tax that if unpaid at Closing would be included as a liability in Net Working Capital or the determination of Pre-Closing Income Taxes.
Conduct of the Company. During the period from the date of this Agreement and continuing until the Closing Date, the Company, agrees to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Company when due, to pay or perform other obligations when due, and, to the extent consistent with such business, use its commercially reasonable efforts consistent with past practice and policies to preserve intact the present business organizations of the Company, all with the understanding that the Company must eliminate all liabilities of the Company prior to the Closing Date. The Company shall promptly notify the Purchaser of any event or occurrence or emergency not in the ordinary course of business of the Company and any material event involving the Company.
