Common use of Interim Operating Covenants Clause in Contracts

Interim Operating Covenants. Except as contemplated by this Agreement or with the prior written consent of the Parent, during the period from the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms or the Effective Time, the Company and its Subsidiaries will conduct their operations in the ordinary course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, will use its reasonable best efforts to preserve intact the business organization of the Company and its Subsidiaries, to keep available the services of the present officers and key employees of the Company and its Subsidiaries, and to preserve the good will of customers, suppliers and all other persons having business relationships with the Company and its Subsidiaries. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or disclosed in Section 5.1 of the Company Disclosure Letter, prior to the Effective Time, the Company and each of its Subsidiaries will not, without the prior written consent of the Parent: (a) except as required by applicable Law, adopt any amendment to the certificate of incorporation, by-laws or other equivalent organizational documents of the Company; (b) issue, reissue, sell or pledge, or authorize the issuance, reissuance, sale or pledge of (i) additional shares of capital stock or other equity securities of any class, or securities convertible into capital stock or other equity securities or any rights, warrants or options to acquire any such convertible securities or capital stock or other equity securities, other than the issuance of Company Common Stock, in accordance with the terms of the instruments governing such issuance on the date hereof or pursuant to the exercise of Company Stock Options outstanding on the date hereof, or (ii) any other securities in respect of, in lieu of, or in substitution for, Company Common Stock outstanding on the date hereof; (c) declare, set aside, make or pay any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any class or series of its capital stock or other equity interests. (d) directly or indirectly, split, combine, subdivide, reclassify or redeem, retire, purchase or otherwise acquire, or propose to redeem, retire or purchase or otherwise acquire, any shares of its capital stock or other equity interests; (e) increase the salary, wages, benefits, bonuses or other compensation payable or to become payable to current or former directors, officers or employees of the Company, except for increases required under employment agreements existing on the date hereof and disclosed to Parent, (ii) enter into any employment, change of control or severance agreement with, or any bonus, profit sharing, thrift, stock option, restricted stock, pension, retirement, welfare, deferred compensation, employment, change of control, termination, severance or other benefit plan, agreement, policy or arrangement for the benefit of, any current or former director, officer or employee of the Company, (iii) amend or otherwise alter any Plan with or for the benefit of any current or former director, officer or employee of the Company, (iv) exercise any discretion to accelerate the vesting or payment of any compensation or benefit under any Plan, (v) grant any new awards under any Plan or (vi) take any action to fund the payment of compensation or benefits under any Plan except, in the case of clauses (i) and (vi), in the ordinary course of business, consistent with past practices with respect to employees of the Company who are not officers or directors, or as may be required by the terms of any such plan, agreement, policy or arrangement in effect on the date hereof and disclosed to Parent or to comply with applicable Law; (f) acquire, sell, lease, license, transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, purchase, sale or otherwise) any assets or any Intellectual Property of the Company (other than the disposition of used or excess equipment and the purchase of supplies and equipment, in either case in the ordinary course of business consistent with past practice), or enter into any material commitment or transaction outside the ordinary course of business; (g) (i) incur, assume any long term Debt or incur or assume any short term Debt (including, in either case, by issuance of debt securities), (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or capital contributions to, or investments in, any other Person, other than ordinary course advances to employees consistent with past practice; (h) terminate, cancel or request any material change in, or agree to any material change in any Material Contract or enter into any Material Contract, in each case other than in the ordinary course of business consistent with past practice, or make or authorize any capital expenditure, other than capital expenditures provided for in the Company’s budget (a copy of which budget has been provided to the Parent); (i) take any action with respect to accounting policies or procedures, other than actions in the ordinary course of business and consistent with past practice or as required pursuant to applicable Law or U.S. GAAP; (j) waive, release, assign, settle or compromise any material rights, claims or litigation; (k) pay, discharge or satisfy any material claim, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) other than in the ordinary course of business consistent with past practice; (1) enter into any agreement or arrangement that materially limits or otherwise restricts the Company or any successor thereto, or that would, after the Effective Time, limit or restrict the Surviving Corporation and its Affiliates (including the Parent) or any successor thereto, from engaging or competing in any line of business or in any geographic area;

Interim Operating Covenants. Except as contemplated by this Agreement or with the prior written consent set forth on Section 4.5 of the ParentDisclosure Letter, during the period from the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms or the Effective Time, Pre-Closing Period the Company shall, and shall cause each other Company Group Member to, operate its Subsidiaries will conduct their operations business in the ordinary course of business consistent with past practice and, to in substantially the extent consistent therewith, with no less diligence same manner in which it previously has been conducted and effort than would be applied in the absence of this Agreement, will use its reasonable best efforts to preserve intact the its business organization of the Company and assets and its Subsidiaries, to keep available the services of the present officers and key employees of the Company and its Subsidiaries, and to preserve the good will of relationships with customers, suppliers suppliers, employees and all other persons others having business relationships dealings with the Company and its Subsidiariesit. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or disclosed in Section 5.1 of the Company Disclosure Letter, prior to the Effective Time, the Company and each of its Subsidiaries will not, without the prior written consent of the ParentPurchasers (such consent not to be unreasonably withheld, conditioned or delayed) or as contemplated herein, and except as set forth on Section 4.5 of the Disclosure Letter, the Company shall not, and shall cause each other Company Group Member not to: (a) except as required by applicable Lawdeclare, adopt or make payment in respect of, any amendment to the certificate of incorporation, by-laws dividend or other equivalent organizational documents distribution upon any shares of capital stock of the CompanyCompany (for the avoidance of doubt, the parties agree that this limitation does not apply to any other Company Group Member); (b) issueredeem, reissuerepurchase or acquire any capital stock of any Company Group Member, sell or pledge, or authorize the issuance, reissuance, sale or pledge of (i) additional shares other than repurchases of capital stock from employees, officers or other equity securities directors of any class, or securities convertible into capital stock or other equity securities or Company Group Member in the ordinary course of business pursuant to any rights, warrants or options to acquire any such convertible securities or capital stock or other equity securities, other than the issuance of Company Common Stock, in accordance with the terms of the instruments governing such issuance on the date hereof Company Group’s agreements or pursuant to the exercise plans in effect as of Company Stock Options outstanding on the date hereof, or (ii) any other securities in respect of, in lieu of, or in substitution for, Company Common Stock outstanding on the date hereof; (c) declareamend the Certificate of Incorporation, set aside, make the Certificate of Designations or pay the Bylaws or take or authorize any dividend action to wind up its affairs or other distribution (whether in cash, securities or property or any combination thereof) in respect of any class or series of its capital stock or other equity interests.dissolve; (d) directly authorize, grant, issue or indirectly, split, combine, subdivide, reclassify or redeem, retire, purchase or otherwise acquireany capital stock, or propose to redeemsecurities exercisable for, retire exchangeable for or purchase or otherwise acquire, any shares of its convertible into capital stock (including options, warrants or rights) of the Company other than (i) the authorization and issuance of the Purchased Shares and (ii) issuances of capital stock, or securities exercisable for, exchangeable for or convertible into shares or other equity interests; (e) increase capital stock, of the salary, wages, benefits, bonuses or other compensation payable or Company to become payable to current or former directorsemployees, officers or employees of the Company, except for increases required under employment agreements existing on the date hereof and disclosed to Parent, (ii) enter into any employment, change of control or severance agreement with, or any bonus, profit sharing, thrift, stock option, restricted stock, pension, retirement, welfare, deferred compensation, employment, change of control, termination, severance or other benefit plan, agreement, policy or arrangement for the benefit of, any current or former director, officer or employee of the Company, (iii) amend or otherwise alter any Plan with or for the benefit directors of any current or former director, officer or employee of the Company, (iv) exercise any discretion to accelerate the vesting or payment of any compensation or benefit under any Plan, (v) grant any new awards under any Plan or (vi) take any action to fund the payment of compensation or benefits under any Plan except, in the case of clauses (i) and (vi), in the ordinary course of business, consistent with past practices with respect to employees of the Company who are not officers or directors, or as may be required by the terms of any such plan, agreement, policy or arrangement in effect on the date hereof and disclosed to Parent or to comply with applicable Law; (f) acquire, sell, lease, license, transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, purchase, sale or otherwise) any assets or any Intellectual Property of the Company (other than the disposition of used or excess equipment and the purchase of supplies and equipment, in either case Group Member in the ordinary course of business consistent with past practice), pursuant to any of the Company Group’s agreements or enter into any material commitment or transaction outside plans in effect as of the ordinary course of businessdate hereof; (ge) incur any Indebtedness, other than (i) incur, assume any long term Debt or incur or assume any short term Debt (including, in either case, by issuance of debt securities)Indebtedness existing on the date hereof, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except trade accounts payables incurred in the ordinary course of business consistent with past practice, or (iii) make any loans, advances or short-term working capital contributions to, or investments in, any other Person, other than ordinary course advances to employees consistent with past practice; (h) terminate, cancel or request any material change in, or agree to any material change in any Material Contract or enter into any Material Contract, in each case other than Indebtedness incurred in the ordinary course of business consistent with past practicepractice or to pay any transaction expenses, filing fees and other costs and expenses related to the transactions contemplated by this Agreement, the Existing Credit Facility and the New ABL Facility; (f) settle or make compromise any material action, suit, proceeding, investigation or authorize other litigation; (g) amend, modify or enter into any capital expenditurenew agreement with Xxxxxxx Xxxxx & Associates, other than capital expenditures provided for Inc. in a manner that materially increases the fees or commissions payable by the Company’s budget ; (a copy h) amend, modify or enter into any new agreement with any Affiliate of which budget has been provided to the Parent)Company; (i) take enter into, assume, amend, modify, waive any action with respect to accounting policies material right under or procedures, other than actions in the ordinary course of business and consistent with past practice terminate any Credit Document or as required pursuant to applicable Law or U.S. GAAP;any Contract that would be a Credit Document; or (j) waive, release, assign, settle agree or compromise commit to do any material rights, claims or litigation; (k) pay, discharge or satisfy any material claim, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) other than in of the ordinary course of business consistent with past practice; (1) enter into any agreement or arrangement that materially limits or otherwise restricts the Company or any successor thereto, or that would, after the Effective Time, limit or restrict the Surviving Corporation and its Affiliates (including the Parent) or any successor thereto, from engaging or competing in any line of business or in any geographic area;foregoing.

Interim Operating Covenants. Except as contemplated by this Agreement or with the prior written consent of the Parent, during During the period from the date of this Agreement and continuing until the Closing Date or earlier of the termination of this Agreement in accordance with its terms or the Effective Time, the Company and its Subsidiaries will conduct their operations in the ordinary course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, will use its reasonable best efforts to preserve intact the business organization of the Company and its Subsidiaries, to keep available the services of the present officers and key employees of the Company and its Subsidiaries, and to preserve the good will of customers, suppliers and all other persons having business relationships with the Company and its Subsidiaries. Without limiting the generality of the foregoing, and agrees as follows (except as otherwise expressly contemplated by this Agreement or disclosed in Section 5.1 of the Company Disclosure Letter, prior to the Effective Time, the Company and each of its Subsidiaries will not, without the prior written consent of the Parent:): (a) except the Company shall carry on its and its Subsidiaries’ business in the usual, regular and ordinary course in substantially the same manner as required by applicable Law, adopt any amendment to the certificate of incorporation, by-laws or other equivalent organizational documents of the Companyheretofore conducted; (b) the Company shall not declare or pay any dividends on or make other distributions in respect of any of its capital stock; (c) the Company shall not issue, reissue, deliver or sell or pledge, authorize or authorize propose the issuance, reissuance, delivery or sale or pledge of (i) additional any shares of its capital stock or other equity securities of any class, any voting debt or securities convertible into capital stock or other equity securities or any rights, warrants or options to acquire any such shares, voting debt or convertible securities or capital stock or other equity securities, other than the issuance of Company Common Stock, in accordance with the terms of the instruments governing such issuance on the date hereof or pursuant to the exercise of Company Company’s 2005 Stock Options outstanding on Incentive Plan, the date hereofCompany’s 2008 Key Partner Incentive Plan, the Company’s 2011 Stock Incentive Plan, the Company’s 2016 Stock Incentive Plan, the Company’s Stock Appreciation Rights Plan or (ii) any other securities in respect of, in lieu of, or in substitution for, Company Common Stock outstanding on the date hereofCompany’s Equity Value Appreciation Awards; (c) declare, set aside, make or pay any dividend or other distribution (whether in cash, securities or property or any combination thereof) in respect of any class or series of its capital stock or other equity interests. (d) directly or indirectly, split, combine, subdivide, reclassify or redeem, retire, purchase or otherwise acquire, the Company shall not amend or propose to redeemamend its articles of amalgamation or bylaws, retire or purchase or otherwise acquire, any shares of its capital stock or other equity intereststhan pursuant to this Agreement; (e) increase the salary, wages, benefits, bonuses or other compensation payable or to become payable to current or former directors, officers or employees of the Company, except for increases required under employment agreements existing on the date hereof and disclosed to Parent, (ii) enter into any employment, change transfer of control or severance agreement with, or any bonus, profit sharing, thrift, stock option, restricted stock, pension, retirement, welfare, deferred compensation, employment, change of control, termination, severance or other benefit plan, agreement, policy or arrangement for the benefit of, any current or former director, officer or employee of the Company, (iii) amend or otherwise alter any Plan with or for the benefit of any current or former director, officer or employee of the Company, (iv) exercise any discretion to accelerate the vesting or payment of any compensation or benefit under any Plan, (v) grant any new awards under any Plan or (vi) take any action to fund the payment of compensation or benefits under any Plan except, in the case of clauses (i) and (vi), in the ordinary course of business, consistent with past practices with respect to employees of the Company who are not officers or directors, or as may be required by the terms of any such plan, agreement, policy or arrangement in effect on the date hereof and disclosed to Parent or to comply with applicable Law; (f) acquire, sell, lease, license, transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, purchase, sale or otherwise) any assets or any Intellectual Property of the Company (other than the disposition of used or excess equipment and the purchase of supplies and equipment, in either case in the ordinary course of business consistent with past practice), or enter into any material commitment or transaction outside the ordinary course of business; (g) (i) incur, assume any long term Debt or incur or assume any short term Debt (including, in either case, by issuance of debt securities), (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business consistent with past practice, neither the Company nor any of its Subsidiaries shall sell, lease, encumber or (iii) make any loans, advances or capital contributions to, or investments in, any other Person, other than ordinary course advances to employees consistent with past practice; (h) terminate, cancel or request any material change in, otherwise dispose of or agree to sell, lease, encumber or otherwise dispose of, any material change of its assets, which are material, individually or in the aggregate, to the Company and its subsidiaries, taken as a whole; and (f) except for any Material Contract borrowings pursuant to the Debt Agreements in the ordinary course of business, neither the Company nor any of its Subsidiaries shall incur any indebtedness for borrowed money or enter into guarantee any Material Contractsuch indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of others other than, in each case other than case, in the ordinary course of business consistent with past practice, or make or authorize any capital expenditure, other than capital expenditures provided for in the Company’s budget (a copy of which budget has been provided to the Parent); (i) take any action with respect to accounting policies or procedures, other than actions in the ordinary course of business and consistent with past practice or as required pursuant to applicable Law or U.S. GAAP; (j) waive, release, assign, settle or compromise any material rights, claims or litigation; (k) pay, discharge or satisfy any material claim, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) other than in the ordinary course of business consistent with past practice; (1) enter into any agreement or arrangement that materially limits or otherwise restricts the Company or any successor thereto, or that would, after the Effective Time, limit or restrict the Surviving Corporation and its Affiliates (including the Parent) or any successor thereto, from engaging or competing in any line of business or in any geographic area;prior practices.