Common use of Interim Operating Covenants Clause in Contracts

Interim Operating Covenants. Except as set forth on Schedule 4.5, during the Pre-Closing Period, the Company shall, and shall cause each other member of the Company Group (i) to operate its business in the ordinary course in substantially the same manner in which it previously has been conducted and (ii) use its reasonable best efforts to preserve intact in all material respects its business and assets and its relationships with customers, suppliers, employees and others having business dealings with it. Without limiting the generality of the foregoing, during the Pre-Closing Period, without the prior written consent of the Purchaser, the Company shall not, and shall cause each other member of the Company Group to not: (a) declare, or make payment in respect of, any dividend or other distribution upon any shares of capital stock of the Company; (b) redeem, repurchase or acquire any capital stock of any Company Group Member, other than repurchases of capital stock from employees, officers or directors of any Company Group Member in the ordinary course of business for purposes of the payment of the exercise price of a Company Stock Option or for purposes of tax withholding pursuant to, or as required by, any of the Company Group’s agreements or Plans in effect as of the date hereof; (c) amend the Certificate of Incorporation, the Certificate of Designations or the Bylaws (other than in connection with the filing of the Certificate of Designations with the Secretary of State of the State of Delaware at or prior to Closing) or take or authorize any action to wind up its affairs or dissolve; (d) authorize, grant, issue or reclassify any capital stock, or securities exercisable for, exchangeable for or convertible into capital stock (including options, warrants or rights), of any Company Group Member other than grants of Company Stock Options, Company RSUs and Company PRSUs under the Company Equity Plans in the ordinary course of business to employees, officers or directors of any Company Group Member or issuances of capital stock, or securities exercisable for, exchangeable for or convertible into shares or other capital stock, of the Company upon the exercise or settlement of any Company Stock Option, Company RSU, or Company PRSU outstanding on the date of this Agreement; (e) (i) amend the Debt Commitment Letter (as defined in the Allied Acquisition Agreement), (ii) amend any agreements in existence as of the date hereof relating to indebtedness for borrowed money of the Company (excluding any such agreements that will be amended or amended and restated, as applicable, on or prior to the Closing, which amended or amended and restated agreements are addressed by clause (iii) below) that will remain in effect following the Closing, or (iii) enter into any agreements or arrangements relating to indebtedness for borrowed money (including any Debt Documents (as defined in the Allied Acquisition Agreement)) or otherwise complete the Debt Financing (as defined in the Allied Acquisition Agreement) on any terms that are inconsistent with the terms set forth in the Debt Commitment Letter (as defined in the Allied Acquisition Agreement), in the case of each of clauses (i) through (iii), in a manner (x) that is material and adverse to the Purchaser (it being understood and agreed that any change that would limit or restrict the Company’s ability to take any action in accordance with the Certificate of Designations, which failure to take such action would result in a Triggering Event (as defined in the Certificate of Designations), would be material and adverse to the Purchaser) or (y) that would otherwise restrict or limit in any respect the ability of the Company to pay dividends on the Preferred Stock in kind or limit in any material respect the ability of the Company to pay cash dividends on the Preferred Stock under the terms of the Certificate of Designations; or (f) agree or commit to do any of the foregoing.

Interim Operating Covenants. Except as set forth on Schedule 4.5, during the Pre-Closing Period, the Company shall, and shall cause each other member of the Company Group to use their respective reasonable best efforts (i) to operate its business in the ordinary course in substantially the same manner in which it previously has been conducted and (ii) use its reasonable best efforts to preserve intact in all material respects its business and assets and its relationships with customers, suppliers, employees and others having business dealings with it. Without limiting the generality of the foregoing, during the Pre-Closing Period, without the prior written consent of the Purchaser, the Company shall not, and shall cause each other member of the Company Group to not: (a) declare, or make payment in respect of, any dividend or other distribution upon any shares of capital stock of the Company; (b) redeem, repurchase or acquire any capital stock of any Company Group Memberthe Company, other than repurchases of capital stock from employees, officers or directors of any Company Group Member in the ordinary course of business for purposes of the payment of the exercise price of a Company Stock Option or for purposes of tax withholding pursuant to, or as required by, any of the Company Group’s agreements or Plans in effect as of the date hereof; (c) amend take any other action that, if taken following the Closing, would (i) require the prior written consent of the holders of the Preferred Stock pursuant to the Certificate of IncorporationDesignations, or (ii) result in an adjustment to the Conversion Price pursuant to the Certificate of Designations or unless (in the Bylaws case of this clause (other than in connection with ii)) such adjustment is effected upon the filing Closing and the issuance of the Certificate of Designations with the Secretary of State of the State of Delaware at or prior Preferred Stock pursuant to Closing) or take or authorize any action to wind up its affairs or dissolvethis Agreement; (d) authorize, grant, issue or reclassify any shares of capital stock, or securities exercisable for, exchangeable for or convertible into capital stock (including options, warrants or rights), of any Company Group Member other than grants of Company Stock Options, Company RSUs and Company PRSUs under the Company Equity Plans in the ordinary course of business to employees, officers or directors of any Company Group Member or issuances of capital stock, or securities exercisable for, exchangeable for or convertible into shares or other capital stock, of the Company upon or its Subsidiaries (other than issuances to the exercise Company or settlement of any Company Stock Option, Company RSU, or Company PRSU outstanding on the date of this Agreement; (ewholly owned Subsidiary thereof) (i) amend the Debt Commitment Letter (as defined in the Allied Acquisition Agreement), to any private equity sponsor or similar institutional investor or (ii) amend any agreements in existence as an amount exceeding $25,000,000 in the aggregate (excluding for this purpose issuances of securities referenced in clause (1) of the date hereof relating to indebtedness for borrowed money definition of the Company (excluding any such agreements that will be amended or amended and restated, as applicable, on or prior to the Closing, which amended or amended and restated agreements are addressed by clause (iii) below) that will remain in effect following the Closing, or (iii) enter into any agreements or arrangements relating to indebtedness for borrowed money (including any Debt Documents (as defined in the Allied Acquisition AgreementExempted Securities)) or otherwise complete the Debt Financing (as defined in the Allied Acquisition Agreement) on any terms that are inconsistent with the terms set forth in the Debt Commitment Letter (as defined in the Allied Acquisition Agreement), in the case of each of clauses (i) through (iii), in a manner (x) that is material and adverse to the Purchaser (it being understood and agreed that any change that would limit or restrict the Company’s ability to take any action in accordance with the Certificate of Designations, which failure to take such action would result in a Triggering Event (as defined in the Certificate of Designations), would be material and adverse to the Purchaser) or (y) that would otherwise restrict or limit in any respect the ability of the Company to pay dividends on the Preferred Stock in kind or limit in any material respect the ability of the Company to pay cash dividends on the Preferred Stock under the terms of the Certificate of Designations; or (fe) agree or commit to do any of the foregoing.

Interim Operating Covenants. Except as set forth on Schedule 4.5, during During the Pre-Closing Period, the Company shall, and its Subsidiaries shall cause each other member of the Company Group (i) use their commercially reasonable efforts to operate its business their businesses in the ordinary course in substantially the same manner in which it previously has been conducted and (ii) use its reasonable best efforts to preserve intact in all material respects its business and assets and its relationships with customerscourse, suppliers, employees and others having business dealings with it. Without limiting the generality of the foregoing, during the Pre-Closing Periodand, without the prior written consent of the PurchaserInvestor, the Company shall not, and shall cause each other member except as set forth in Section 4.4 of the Company Group to notDisclosure Schedule: (a) declare, or make payment in respect of, any dividend or other distribution upon any shares of capital stock of the CompanyCompany or any of its Subsidiaries; (b) redeem, repurchase or acquire any capital stock of the Company or any Company Group Memberof its Subsidiaries, other than repurchases of capital stock from current or former employees, officers or directors of the Company or any Company Group Member of its Subsidiaries in the ordinary course of business for purposes of the payment of the exercise price of a Company Stock Option or for purposes of tax withholding pursuant to, or as required by, to any of the Company GroupCompany’s agreements or Plans plans in effect as of the date hereof, the Charter (including the Certificate of Designation), the Bylaws and by law; (c) amend the Certificate Charter or Bylaws in a manner that would adversely affect the Investor either as a holder of Incorporation, Series A Preferred Stock or with respect to the Certificate rights of Designations the Investor under this Agreement or the Bylaws (other than in connection with the filing of the Certificate of Designations with the Secretary of State of the State of Delaware at or prior to Closing) or take or authorize any action to wind up its affairs or dissolve;Transaction Documents; or (d) authorize, grant, issue or reclassify any capital stock, or securities exercisable for, exchangeable for or convertible into capital stock (including options, warrants or rights)stock, of the Company or any Company Group Member of its Subsidiaries other than grants (i) the authorization and issuance of Company the Series A Preferred Stock Options, Company RSUs and Company PRSUs under the Company Equity Plans in the ordinary course of business to employees, officers or directors of any Company Group Member or (ii) issuances of capital stock, or securities exercisable for, exchangeable for or convertible into shares or other capital stock, of the Company upon to employees, officers and directors of the exercise Company or settlement any of any Company Stock Option, Company RSU, or Company PRSU outstanding on the date of this Agreement; (e) (i) amend the Debt Commitment Letter (as defined its Subsidiaries in the Allied Acquisition Agreement), (ii) amend ordinary course of business pursuant to any of the Company’s agreements or plans in existence effect as of the date hereof relating to indebtedness for borrowed money of the Company (excluding any such agreements that will be amended or amended and restated, as applicable, on or prior to the Closing, which amended or amended and restated agreements are addressed by clause (iii) below) that will remain in effect following the Closing, or (iii) enter into any agreements or arrangements relating to indebtedness for borrowed money (including any Debt Documents (as defined in the Allied Acquisition Agreement)) or otherwise complete the Debt Financing (as defined in the Allied Acquisition Agreement) on any terms that are inconsistent with the terms set forth in the Debt Commitment Letter (as defined in the Allied Acquisition Agreement), in the case of each of clauses (i) through (iii), in a manner (x) that is material and adverse to the Purchaser (it being understood and agreed that any change that would limit or restrict the Company’s ability to take any action in accordance with the Certificate of Designations, which failure to take such action would result in a Triggering Event (as defined in the Certificate of Designations), would be material and adverse to the Purchaser) or (y) that would otherwise restrict or limit in any respect the ability of the Company to pay dividends on the Preferred Stock in kind or limit in any material respect the ability of the Company to pay cash dividends on the Preferred Stock under the terms of the Certificate of Designations; or (f) agree or commit to do any of the foregoinghereof.