Interim Operations of the Company. The Company covenants and agrees, as to itself and its subsidiaries, that, prior to the Effective Time (unless Purchaser shall otherwise consent in writing and except as otherwise permitted by this Agreement):
(a) the business of the Company and its subsidiaries shall be conducted only in the ordinary and usual course and, to the extent consistent therewith, each of the Company and its subsidiaries shall use its commercially reasonable efforts to preserve its business organization intact and maintain
(b) the Company shall not (i) sell or pledge or agree to sell or pledge any stock or other securities owned by it or permit any of its subsidiaries to sell, pledge or agree to sell or pledge any stock or other securities owned by such subsidiary; (ii) amend the Certificate or its bylaws or amend, modify or terminate the Rights Agreement, or redeem the Rights issued pursuant thereto; (iii) split, combine or reclassify the outstanding Shares; or (iv) declare, set aside or pay any dividend payable in cash, stock or property with respect to the Shares;
(c) neither the Company nor any of its subsidiaries shall (i) issue, sell, pledge, dispose of or encumber any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class of the Company, its subsidiaries or any other property or assets other than, in the case of the Company, Shares issuable pursuant to options outstanding on the date hereof under the Stock Plans and shares issuable pursuant to the Warrants; (ii) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any assets or incur or modify any indebtedness or other liability other than in the ordinary and usual course of business; (iii) acquire directly or indirectly by redemption or otherwise any shares of the capital stock of the Company or any of its subsidiaries or (iv) authorize capital expenditures in excess of $50,000 individually or $100,000 in the aggregate or make any acquisition of (by merger, consolidation or acquisition of stock or assets), or any investment in, assets or stock of any other person or entity (other than acquisitions of assets in the ordinary course of business consistent with past practice);
(d) neither the Company nor any of its subsidiaries shall grant any severance or termination pay to, or enter into any employment or severance agreement with any director, officer or o...
Interim Operations of the Company. The Company covenants and agrees that, except (i) as permitted by this Agreement, (ii) as indicated on Schedule 5.1, or (iii) as agreed in writing by Parent, after the date hereof, and prior to the time the directors of the Purchaser have been elected to, and shall constitute a majority of, the Company Board pursuant to Section 1.3 (the "Appointment Date"):
(a) the business of the Company and its Subsidiaries shall be conducted only in the ordinary and usual course of business in a manner consistent with past practice (including payment of accounts payable, collection of accounts receivable and inventory purchases) and in compliance with applicable laws and the Company and its Subsidiaries shall each use its reasonable best efforts to (i) preserve substantially intact the business organization and assets of the Company and its Subsidiaries, (ii) keep available the services of the present key officers, employees and consultants of the Company and its Subsidiaries, (iii) preserve the present relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or any of its Subsidiaries has significant business relations, and (iv) maintain net cash of the Company and its Subsidiaries of at least $10 million (without giving effect to any transaction-related fees and expenses of the Financial Advisor, financial printers and outside counsel not exceeding $1.35 million in the aggregate) as of the close of business on the date of the expiration of the Offer;
(b) the Company will not, directly or indirectly, (i) sell, transfer or pledge or agree to sell, transfer or pledge any Shares or capital stock of any of its Subsidiaries beneficially owned by it, either directly or indirectly; (ii) amend its Certificate of Incorporation or By-laws or similar organizational documents; or (iii) split, combine or reclassify the outstanding Shares or any outstanding capital stock of any of the Subsidiaries of the Company;
(c) except as disclosed on Schedule 5.1(c), neither the Company nor any of its Subsidiaries shall: (i) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock; (ii) issue, deliver, sell, pledge, dispose of or encumber any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class of the Company or its Subsidiaries...
Interim Operations of the Company. Except (i) as required by Law, (ii) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (iii) contemplated by this Agreement or (iv) as set forth in Section 6.1 of the Company Disclosure Schedule, from the date of this Agreement to the Effective Time the Company shall, and shall cause each of its Subsidiaries to, conduct its business only in the usual, regular and ordinary course consistent with past practice and use all reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its present relationships with customers, suppliers, licensors, licensees, distributors, Governmental Entities and others having business dealings with them to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. In addition, and without limiting the generality of the foregoing, except (w) as required by Law, (x) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (y) expressly permitted pursuant to this Agreement or (z) as set forth in Section 6.1 of the Company Disclosure Schedule, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any of its Subsidiaries to, do any of the following:
(a) except for Shares to be issued or delivered pursuant to the exercise of Options or Warrants, the settlement of RSUs or the lapsing of forfeiture restrictions of Restricted Stock Awards, each outstanding on the date hereof or the issuance of the shares of capital stock of any Subsidiary to the Company, issue, deliver, sell, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, delivery, sale, disposition or pledge or other encumbrance of (i) any shares of its capital stock of any class or any other ownership interest, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock or any other ownership interest, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any other ownership interest or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock or any other ownership interest (including “phantom” rights and stock appreciatio...
Interim Operations of the Company. The Company covenants and agrees that, except (i) as expressly contemplated by this Agreement, (ii) as set forth in Section 5.1 of the Company's Disclosure Schedule or (iii) as agreed in writing by Parent, after the date hereof, and prior to the time the designees of the Purchaser have been elected to, and shall constitute a majority of, the Board of Directors of the Company pursuant to Section 1.3 (the "Appointment Date"):
(a) the business of the Company and its Subsidiaries shall be conducted only in the ordinary and usual course and, to the extent consistent therewith, each of the Company and its Subsidiaries shall use its commercially reasonable best efforts to preserve its business organization intact and maintain its existing relations with customers, suppliers, employees, creditors and business partners;
(b) the Company will not, directly or indirectly, (i) sell, transfer or pledge or agree to sell, transfer or pledge any of the Shares, Preferred Stock or capital stock of any of its Subsidiaries beneficially owned by it; (ii) amend its Articles of Incorporation or Bylaws or similar organizational documents; or (iii) split, combine or reclassify the outstanding Shares or Preferred Stock or any outstanding capital stock of any of the Subsidiaries of the Company;
(c) neither the Company nor any of its Subsidiaries shall: (i) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock; (ii) issue, sell, pledge, dispose of or encumber any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire any shares of, capital stock of any class of the Company or its Subsidiaries, other than shares reserved for issuance on the date hereof pursuant to the exercise of Options outstanding on the date hereof; (iii) transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any material assets other than in the ordinary and usual course of business and consistent with past practice, or incur or modify any material indebtedness or other liability; or (iv) redeem, purchase or otherwise acquire directly or indirectly any of its capital stock;
(d) neither the Company nor any of its Subsidiaries shall: (i) grant any increase in the compensation payable or to become payable by the Company or any of its Subsidiaries to any of its employees; (ii) (A) adopt any new, or (B) amend or otherwise increase, or ...
Interim Operations of the Company. Except as set forth on Schedule 5.1, during the period from the date of this Agreement to the Effective Time (unless Parent shall otherwise agree in writing and except as otherwise contemplated by this Agreement), the Company will conduct its operations according to its ordinary and usual course of business consistent with past practice and seek to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth on Schedule 5.1, the Company will not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent:
(i) except for the issuance of Shares upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms, issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class (including the Shares), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (B) any other securities in respect of, in lieu of, or in substitution for, Shares outstanding on the date hereof;
(ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding Shares;
(iii) split, combine, subdivide or reclassify any Shares or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any Shares or otherwise make any payments to stockholders in their capacity as such, other than dividends by a direct or indirect wholly owned Subsidiary of the Company,
(iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or o...
Interim Operations of the Company. The Company covenants and agrees as to itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless Parent shall otherwise approve and except as otherwise expressly contemplated by this Agreement and except as required pursuant to the terms of the Term Loan Agreement and the related loan documents, including the repayment of any principal or interest, the Side Agreement, the Series D Exchange Agreement (as defined in the Side Agreement), the Series D Certificate of Designations (as defined in the Series D Exchange Agreement) or the Agreement of Understanding):
(a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use all reasonable efforts to maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors and business associates; provided, however, that the Company may sell those assets which it is permitted to dispose of pursuant to and in accordance with the terms of the Term Loan Agreement and may continue to de-emphasize its sales and licensing of its multifunction products business.
(b) it shall not (i) issue, sell, pledge, dispose of or encumber any capital stock owned by it in any of its Subsidiaries; (ii) amend its certificate of incorporation or by-laws; (iii) split, combine or reclassify its outstanding shares of capital stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock other than dividends from its direct or indirect wholly-owned Subsidiaries; or (v) repurchase, redeem or otherwise acquire, except in connection with the Stock Option Plans, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(c) neither it nor any of its Subsidiaries shall (i) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or any other property or assets (other than Shares issuable pursuant to options outstanding on the date hereof under the Stock Option Plans, options for Shares and Shares issuable pursuant to the Stock Purchase Plan, options issuable pursuant to the terms of the Dir...
Interim Operations of the Company. Each of the Guarantors shall procure that, and covenant and agree that, after the date hereof and until the Initial Closing Date, except (i) as expressly provided in this Agreement, or (ii) as may be agreed in writing by Purchaser:
(a) the business of the Company and Company Subsidiaries shall be conducted in the same manner as heretofore conducted and in a prudent manner (en bon père de famille), in the ordinary course, and each of the Guarantors, the Company and Company Subsidiaries shall use its best efforts to preserve the business organization of the Company and Company Subsidiaries intact, keep available the services of the current officers and employees of the Company and Company Subsidiaries and maintain the existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with the Company or Company Subsidiaries, to the end that the goodwill and ongoing business of the Company and Company Subsidiaries shall be unimpaired at the Closing Date. Neither the Company nor any of Company Subsidiaries shall institute any new methods of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity other than minor changes in the ordinary course of business and consistent with past practice;
(b) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall amend their certificates of incorporation or by-laws or other constituent or governing document, to the extent any such modification is not required by law, or by the rules or regulations of any Governmental Entity;
(c) except as set forth in Section 6.1 (b) of the Guarantors Disclosure Schedule neither the Company nor any of Company Subsidiaries shall alter the Company or Company Subsidiaries' outstanding capital stock or declare, set aside, make or pay any dividend; or purchase or redeem any shares of the Company or Company Subsidiaries' capital stock;
(d) neither the Company nor any of Company Subsidiaries shall issue or sell any of its capital stock or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;
(e) neither the Company nor any of Company Subsidiaries shall: (i) incur or assume any long-term Indebtedness, or except in the ordinary course of business, incur or assume short-term Indebtedness exceeding twenty-five thousand euros (€25,000) in the aggreg...
Interim Operations of the Company. The Company agrees that, during the period from the date of this Agreement through the earlier of (x) the time that the designees of Parent as provided in Section 1.4(a) have been elected to or designated as members of, and shall constitute a majority of, the Company’s Board of Directors, or (y) the date of termination of this Agreement, except (i) to the extent Parent shall otherwise consent in writing (which consent, in the case of actions described in clauses “(d),” “(i),” “(n),” “(p),” “(q),” “(t),” “(u)” and “(v)” below, and in the case of any commitment or agreement described in clause “(y)” below to take any of the actions described in clauses “(d),” “(i),” “(n),” “(p),” “(q),” “(t),” “(u)” and “(v)” below, is not to be unreasonably withheld, conditioned or delayed), (ii) as set forth in the Company Disclosure Schedule (including Part 5.1 thereof), (iii) as necessary to implement or otherwise effectuate an Agreed Arrangement or as otherwise expressly contemplated by this Agreement or (iv) as may be required by any Legal Requirement, (A) the Company shall, and shall cause each of its Subsidiaries to, use its commercially reasonable efforts to conduct its business in the ordinary course consistent with the manner in which such business was being conducted prior to the date of this Agreement and use its commercially reasonable efforts to preserve its present business and organization substantially intact and to maintain such relations with customers, suppliers, employees, contractors, distributors and others having business dealings with it to the extent reasonably necessary to preserve substantially intact its present business and organization, and (B) neither the Company nor any of its Subsidiaries shall:
(a) amend the Company’s certificate of incorporation or bylaws;
(b) split, combine or reclassify any shares of the Company’s capital stock;
(c) declare, set aside or pay any dividend (whether payable in cash, stock or property) with respect to any shares of the Company’s capital stock, except prior to the Acceptance Time for the regular quarterly cash dividend in the amount of $.01 per issued and outstanding Company Share declared and paid on its historical schedule consistent with past practice;
(d) form any Subsidiary;
(e) issue, sell, pledge, dispose of or encumber any additional shares of its capital stock, or securities convertible or exchangeable for, or options or rights to acquire, any shares of its capital stock, other than (i) Company Shar...
Interim Operations of the Company. The Company covenants and agrees that, prior to the Effective Time (unless Purchaser shall otherwise agree in writing and except as otherwise expressly contemplated by this Agreement), the business of the Company and its subsidiaries shall be conducted only in the ordinary and usual course consistent with past practice and, to the extent consistent therewith, each of the Company and its subsidiaries shall use its best efforts to preserve its business organization intact (including maintaining all of its Permits) and maintain its existing relations with customers, suppliers, employees and business associates and it will take no action that would adversely affect the ability of the parties to promptly consummate the transactions contemplated by this Agreement.
Interim Operations of the Company. From the date hereof through the Closing Date, except (i) as otherwise expressly provided in this Agreement or the Transaction Documents, or (ii) as may be consented to by Purchaser in writing, the Sellers shall cause the Company to:
(a) conduct its business only in the usual and ordinary course and shall use best efforts to maintain the value of its business as a going concern and its relationships with its current customers, suppliers, vendors, employees, agents and other Persons having material business relationships with the Company and preserve for Purchaser unimpaired the goodwill of such customers, suppliers, vendors, employees, agents and other Persons;
(b) confer with Purchaser concerning operational matters of a material nature;
(c) not take any affirmative action, or fail to take any reasonable action within its control, which, if occurring within the time period specified in Section 3.7, would be required to be disclosed on Section 3.7 of the Seller Disclosure Schedule;
(d) preserve and maintain all Company Permits required for the conduct of the Company’s business;
(e) pay the debts, Taxes and other obligations of the Company when due;
(f) continue to collect accounts receivable in a manner consistent with past practice, without discounting such accounts receivable;
(g) maintain the properties and assets of the Company in the same condition as they were on the date of this Agreement, subject to reasonable wear and tear;
(h) continue in full force and effect without modification all Insurance Policies;
(i) defend and protect the properties and assets of the Company from infringement or usurpation;
(j) perform all of its obligations under all Material Contracts;
(k) maintain the Books and Records in accordance with past practice; and
(l) comply in all material respects with all Legal Requirements applicable to the conduct of the Company’s business or the ownership and use of the Company’s assets.
