Common use of Conduct of Business in Ordinary Course Clause in Contracts

Conduct of Business in Ordinary Course. (a) The Company will conduct its business diligently, in the ordinary course and in substantially the same manner as it was previously conducted, and will not make or institute any unusual or novel purchase, sale, lease, change in management, accounting policy or operation that will vary materially from those methods used by it during the 12-month period ending on the date of this Agreement. Without limiting the foregoing, from the date hereof until the Closing Date, the Company will: (i) not amend its articles of incorporation (except pursuant to the Amendment) or by-laws, (ii) not acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any Person or (B) any material assets, except purchases in the ordinary course of business, (iii) not change the compensation of any of its officers, nor, except in the ordinary course of business consistent with past practice, increase any compensation (including, without limitation, any bonuses) payable to any Company Employee or consultant of the Company, not enter into any employment, severance or other Contract with any of its officers or any Company Employee or consultants and not enter into, amend or adopt any Employee Plan (provided that the Company may, prior to Closing and pursuant to documentation reasonably satisfactory to Purchaser, amend the terms of its 1999 Incentive Stock Plan, as amended, or any Company Option granted thereunder, to provide that (i) all outstanding Employee Options will vest in full on the one-year anniversary of the Closing Date and (ii) all holders of outstanding Director Options will be entitled to early exercise such Director Options), (iv) not enter into, amend or terminate any material Contract without the prior written consent of the Purchaser, except in the ordinary course of business, (v) not enter into any commitment to borrow money or subject to Lien any of the Assets, (vi) not sell or transfer any of the Assets or cancel any claim except in the ordinary course of business, (vii) not dispose of any shares of capital stock (or securities exchangeable for its shares of capital stock), or declare or pay any dividend or make any distribution in respect of any shares of capital stock of the Company or enter into any Contract with respect thereto except in accordance with the terms of this Agreement or as mutually agreed by the Purchaser and the Company, (viii) perform all material obligations under Licenses, the Company Contracts and other documents relating to or affecting the Company, all in the same manner as heretofore performed, (ix) use its commercially reasonable efforts to maintain and preserve the business of the Company, the goodwill and relationships with the Company Employees, customers, suppliers and others having a business relationship with the Company, and maintain all Licenses requisite to the conduct of its business as now conducted, (x) maintain in working condition all equipment and other personal property that are Assets, reasonable wear

Conduct of Business in Ordinary Course. (a) The Members and the Company will conduct its business the Business diligently, in the ordinary course and in substantially the same manner as it the Business was previously conducted, and will not make or institute any unusual or novel purchase, sale, lease, change in management, accounting policy or operation that will vary materially from those methods used by it during the 12-month period ending on the date of this Agreement; provided however, the Company shall not incur any liability or engage in a transaction with an Interested Party without the written consent of Excel. Without limiting the foregoing, from the date hereof until the Closing Date, with respect to the Company and its Subsidiaries, the Company and the Members will: (i) not amend its articles of incorporation (except pursuant to the Amendment) or by-laws, (ii) not acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any Person or (B) any material assets, except purchases in the ordinary course of business, (iii) not change the compensation of any of its officers, nor, except in the ordinary course of business consistent with past practice, increase any compensation (including, without limitation, any bonuses) payable to any Company Employee or consultant of the CompanyPerson, not enter into any employment, severance or other Contract agreement with any of its officers Person or any Company Employee or consultants and not enter into, amend into or adopt any Employee Plan (provided that the Company may, prior to Closing and pursuant to documentation reasonably satisfactory to Purchaser, amend the terms of its 1999 Incentive Stock Benefit Plan, as amended, or any Company Option granted thereunder, to provide that (i) all outstanding Employee Options will vest in full on the one-year anniversary of the Closing Date and (ii) all holders of outstanding Director Options will be entitled to early exercise such Director Options), (iv) not enter into, amend or terminate any material Contract without the prior written consent of the Purchaser, except in the ordinary course of businessExcel, (viii) not enter into any commitment to borrow money or subject to Lien any of the Assetsassets of the Company and its Subsidiaries, (viiv) not sell or transfer any of the Assets assets or cancel any claim except in the ordinary course of businessconduct of the Business, (viiv) not dispose of any shares material assets of capital stock (or securities exchangeable for the Company and its shares Subsidiaries outside the ordinary course of capital stock)business, or declare or pay any dividend or make any distribution in respect of any shares of capital stock of the Company to its equity owners or enter into any Contract commitments or agreements with respect thereto except in accordance with the terms of this Agreement or as mutually agreed by the Purchaser and the CompanyExcel, (viiivi) perform all material obligations under Licenses, the Company Contracts and other documents relating to or affecting the CompanyBusiness, all in the same manner as heretofore performed, (ixvii) use its commercially reasonable best efforts to maintain and preserve the business of the CompanyBusiness, the goodwill and relationships with the Company EmployeesCompany's and its Subsidiaries' licensors, customers, suppliers and others having a business relationship with the Company, and maintain all Licenses requisite to the conduct of its business the Business as now conducted, (xviii) maintain in working condition all equipment and other personal property that are Assetsassets, reasonable wearwear and tear excepted, (ix) comply with all Laws and Governmental Orders (x) not enter into any license, technology development or technology transfer agreement with any person or entity (other than Excel) which might have a Material Adverse Effect, (xi) not enter into negotiations with, or solicit offers from, any party, directly or indirectly, for the sale of all or substantially all of the Securities or the assets of the Company, (xii) not take any action or omit to take any action which act or omission would result in the inaccuracy of any of its representations and warranties set forth herein if such representations or warranties were to be made immediately after the occurrence of such act or omission; (xiii) amend or otherwise change the Company's and its Subsidiaries' Organizational Documents; (xiv) (x) declare, set aside, make or pay any dividend or other distribution to their respective Members, or (y) redeem, purchase or otherwise acquire, directly or indirectly, any of its Company Membership Interests, or (z) authorize or effect any reverse stock split, split-up or any recapitalization or make any changes in the amount of their authorized or issued Company Membership Interests, or (xv) otherwise engage in any activity that would result in a violation of Section 3.06 above.

Conduct of Business in Ordinary Course. (a) The From and after the date hereof until the Closing, the Company will conduct carry on its business diligently, in the ordinary course and in substantially the same manner as it was such business has previously conductedbeen carried out, and will not make or institute any unusual or novel material purchase, sale, lease, change in management, accounting policy or operation that will vary materially from those methods used by it during the 12-12 month period ending on the date of this Agreement. Without limiting the foregoing, from the date hereof until the Closing Date, the Company will: will (i) not amend its articles of incorporation increase any compensation payable to any employees or consultants (except pursuant to the Amendment) or by-laws, (ii) not acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any Person or (B) any material assets, except purchases in the ordinary course of business, ); (iiiii) not change the compensation of create any of its officers, nor, material obligation or liability (absolute or contingent) except liabilities incurred in the ordinary course of business consistent with past practice, increase any compensation and obligations under contracts entered in the ordinary course of business; (including, without limitation, any bonuses) payable to any Company Employee or consultant of the Company, not enter into any employment, severance or other Contract with any of its officers or any Company Employee or consultants and not enter into, amend or adopt any Employee Plan (provided that the Company may, prior to Closing and pursuant to documentation reasonably satisfactory to Purchaser, amend the terms of its 1999 Incentive Stock Plan, as amended, or any Company Option granted thereunder, to provide that (i) all outstanding Employee Options will vest in full on the one-year anniversary of the Closing Date and (ii) all holders of outstanding Director Options will be entitled to early exercise such Director Options), (iviii) not enter into, amend or terminate any material Contract contract, agreement, permit or lease without the prior written consent of the Purchaser, except Purchaser other than in the ordinary course of business, ; (iv) not amend the certificate of limited partnership or agreement of limited partnership of the Company; (v) not enter into any commitment to borrow money or mortgage, pledge, or subject to Lien Lien, any assets or properties except in the ordinary course of the Assets, business or as contemplated hereunder; (vi) not sell or transfer any of the Assets or cancel any debt or claim except in the ordinary course of business, conduct of business or as contemplated hereunder; (vii) not dispose keep in full force and effect all insurance relating to the Business comparable in amount and scope of any shares of capital stock (or securities exchangeable for its shares of capital stock), or declare or pay any dividend or make any distribution in respect of any shares of capital stock of the Company or enter into any Contract with respect thereto except in accordance with the terms of this Agreement or as mutually agreed by the Purchaser and the Company, coverage to that now maintained; (viii) perform in all material respects all its obligations under Licensescontracts, the Company Contracts leases and other documents relating to or affecting conduct of the CompanyBusiness, all in the same manner as heretofore performed, ; (ix) use its commercially reasonable best efforts to maintain and preserve the business of the CompanyAssets, the goodwill Business, the good will and relationships with the Company Employeesits present officers, customersemployees, suppliers suppliers, staff and others having a business relationship with the Companyit, and maintain all Licenses material licenses and permits requisite to the conduct of its business as now conducted, the Business; (x) not commit to any capital expenditure or purchase of Inventory other than in the ordinary course of business; (xi) maintain in working condition all equipment buildings, equipment, fixtures and other personal property that are Assetsproperty, reasonable wearwear and tear excepted; (xii) duly and timely file all tax and information returns with the appropriate Federal, state, local and foreign governmental agencies and promptly pay when due all taxes, excise taxes, assessments, charges, penalties and interest lawfully levied or assessed upon it or any of its property; (xiii) make no material change in its existing banking and safe deposit arrangements or grant any powers of attorney except in the ordinary course of business; (xiv) not distribute, spend, commit or otherwise transfer any interest in the funds paid to the Company except in the ordinary course of business; (xv) issue or split-up, or grant any option or other right to acquire, any partnership or other interest or any security of the Company; or (xvi) make any declaration, set aside for payment or other distribution in respect of any of the partnership interests of the Company, or make any direct or indirect redemption, purchase or other acquisition of any partnership interest of the Company. The Company will promptly report to the Purchaser any material proposed capital expenditure or purchase of Inventory.

Conduct of Business in Ordinary Course. (a) The Company Seller will, and the Owners will cause the Seller to, conduct its business the Business diligently, in the ordinary course and in substantially the same manner as it the Business was previously conducted, and will not make or institute any unusual or novel purchase, sale, lease, change in management, accounting policy or operation that will vary materially from those methods used by it during the 12-month period ending on the date of this Agreement. Without limiting the foregoing, from the date hereof until the Closing Date, as it relates to the Company Business and its operation, the Seller will, and the Owners will cause the Seller to: (i) not amend its articles of incorporation (except pursuant to the Amendment) or by-laws, (ii) not acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any Person or (B) any material assets, except purchases in the ordinary course of business, (iii) not change the compensation of any of its officers, nor, except in the ordinary course of business consistent with past practicebusiness, increase any compensation (including, without limitation, any bonuses) payable to any Company Business Employee or consultant of the CompanyBusiness, not enter into any employment, severance or other Contract agreement with any of its officers or any Company Business Employee or consultants consultant of the Business and not enter into, amend or adopt any Employee Plan (provided that the Company may, prior to Closing and pursuant to documentation reasonably satisfactory to Purchaser, amend the terms of its 1999 Incentive Stock Plan, as amended, or any Company Option granted thereunder, to provide that (i) all outstanding Employee Options will vest in full on the one-year anniversary of the Closing Date and (ii) all holders of outstanding Director Options will be entitled to early exercise such Director Options), (iv) not enter into, amend or terminate any material Contract without the prior written consent of NMHC and the Purchaser, except in the ordinary course of business, (viii) not enter into any commitment to borrow money or subject to Lien any of the Assets, (viiv) not sell or transfer any of the Assets of the Business or cancel any claim applicable to the Business except in the ordinary course of businessconduct of the Business, (viiv) not dispose of any shares material assets of capital stock the Business outside the ordinary course of business, or dispose of any membership interests (or securities exchangeable for its shares of capital stockmembership interests), or declare or pay any dividend or make any distribution in respect of any shares of capital stock membership interests of the Company Seller or enter into any Contract commitments or agreements with respect thereto except in accordance with the terms of this Agreement or as mutually agreed by the Purchaser and the CompanySeller, (viiivi) perform all material obligations under Licenses, the Company Assumed Contracts and other documents relating to or affecting the CompanyBusiness, all in the same manner as heretofore performed, (ixvii) use its commercially reasonable best efforts to maintain and preserve the business of the CompanyBusiness, the goodwill and relationships with the Company Business Employees, customers, suppliers and others having a business relationship with the CompanyBusiness, and maintain all Licenses requisite to the conduct of its business the Business as now conducted, (xviii) maintain in working condition all equipment and other personal property that are Assets, reasonable wearwear and tear excepted, (ix) comply with all Laws and Governmental Orders applicable to the Business (x) not enter into any license, technology development or technology transfer agreement with any person or entity (other than NMHC or the Purchaser) which might have a material adverse affect on the Business, (xi) not enter into negotiations with, or solicit offers from, any party, directly or indirectly, for the sale of all or substantially all of the Business or the assets at the Business, (xii) vote the membership interests held or controlled by an Owner to approve this Agreement, the Ancillary Agreement and the transactions contemplated hereby and thereby, and (xiii) not take any action or omit to take any action which act or omission would result in the inaccuracy of any of its representations and warranties set forth herein if such representations or warranties were to be made immediately after the occurrence of such act or omission.

Conduct of Business in Ordinary Course. (a) The From and after the date hereof until the Closing, the Company will conduct carry on its business diligently, Business in the ordinary course and in substantially the same manner as it was such Business has previously conductedbeen carried out, and will not make or institute any unusual or novel material purchase, sale, lease, change in management, accounting policy or operation that will vary materially from those methods used by it during the 12-month period ending on the date of this Agreement. Without limiting the foregoing, from the date hereof until the Closing Date, the Company will: will (ia) not amend its articles of incorporation increase any compensation payable to any employees or consultants (except pursuant to the Amendment) or by-laws, (ii) not acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any Person or (B) any material assets, except purchases in the ordinary course of business, ); (iiib) not change the compensation of create any of its officers, nor, material obligation or Liability (absolute or contingent) except Liabilities incurred in the ordinary course of business consistent with past practice, increase any compensation and obligations under contracts entered in the ordinary course of business; (including, without limitation, any bonuses) payable to any Company Employee or consultant of the Company, not enter into any employment, severance or other Contract with any of its officers or any Company Employee or consultants and not enter into, amend or adopt any Employee Plan (provided that the Company may, prior to Closing and pursuant to documentation reasonably satisfactory to Purchaser, amend the terms of its 1999 Incentive Stock Plan, as amended, or any Company Option granted thereunder, to provide that (i) all outstanding Employee Options will vest in full on the one-year anniversary of the Closing Date and (ii) all holders of outstanding Director Options will be entitled to early exercise such Director Options), (ivc) not enter into, amend or terminate any material Contract contract, agreement, permit or lease without the prior written consent of the Purchaser, except Kellxxxxx xxxer than in the ordinary course of business, ; (vd) not amend the Certificate of Incorporation or the By-laws of the Company; (e) not enter into any commitment to borrow money or mortgage, pledge, or subject to Lien Lien, any assets or properties except in the ordinary course of the Assets, business and not exceeding $1,000,000; (vif) not sell or transfer any of the Assets or cancel any debt or claim except in the ordinary course of business, (vii) not dispose of any shares of capital stock (or securities exchangeable for its shares of capital stock), or declare or pay any dividend or make any distribution in respect of any shares of capital stock conduct of the Company or enter into any Contract with respect thereto except in accordance with the terms of this Agreement Business or as mutually agreed by contemplated hereunder; (g) keep in full force and effect all insurance relating to the Purchaser Business comparable in amount and the Company, scope of coverage to that now maintained; (viiih) perform in all material respects all its obligations under Licensescontracts, the Company Contracts leases and other documents relating to or affecting conduct of the CompanyBusiness, all in the same manner as heretofore performed, ; (ixi) use its commercially reasonable efforts to maintain and preserve the business of the CompanyAssets, the goodwill Business, the good will and relationships with the Company Employees, its present customers, suppliers and others having a business relationship with the Company, and maintain all Licenses requisite to the conduct of its business as now conducted, (x) maintain in working condition all equipment and other personal property that are Assets, reasonable wear,