Common use of Conduct of the Business Clause in Contracts

Conduct of the Business. Prior to the earlier of the Closing Date or the termination of this Agreement pursuant to Section 5.1, the Company shall, and, shall cause the Bank to: (a) use commercially reasonable efforts to carry on its business in the ordinary course of business and use reasonable best efforts to maintain and preserve its and the Bank’s business (including its organization, assets, properties, goodwill and insurance coverage) and preserve business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it; provided, that nothing in this clause (a) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable law or imposed by any Governmental Entity, (b) if the Company shall (1) declare or pay any dividend or distribution (other than ordinary cash dividends consistent with past practices) on any shares of Company capital stock, or (2) take any action that would require any adjustment to be made under the terms of the Securities as if such Securities were issued on the date of this Agreement, make appropriate adjustments with respect to the Investor such that the Investor shall receive the benefit of such transaction as if the Securities to be issued to the Investor at the Closing had been outstanding as of the date of such action and (c) to the extent reasonably practicable, shall consult with the Investor prior to taking any material actions outside of the ordinary course of business. Additionally, except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 3.4 of the Disclosure Schedule, the Company shall and shall cause the Bank to not take any of the following actions: (i) grant or provide any severance or termination payments or benefits to any director, officer or Employee of the Company or the Bank; (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or Employee of the Company or the Bank; (iii) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards; (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan; (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vi) forgive any loans to directors, officers or Employees of the Company or the Bank.

Conduct of the Business. Prior to the earlier of the Closing Date or and the termination of this Agreement pursuant to Section 5.1, the Company shall, and, shall cause the Bank each Company Subsidiary to: (a) use commercially reasonable efforts to carry on its business in the ordinary course of business and use reasonable best efforts to maintain and preserve its and the Banksuch Company Subsidiary’s business (including its organization, assets, properties, goodwill and insurance coverage) and preserve business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it; provided, that nothing in this clause (a) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable law or imposed by any Governmental Entity, (b) if the Company shall (1) declare or pay any dividend or distribution (other than ordinary cash dividends consistent with past practices) on any shares of Company capital stock, or (2) take any action that would require any adjustment to be made under the terms of the Securities as if such Securities were issued on the date of this Agreement, make appropriate adjustments with respect to the Investor Investors such that the Investor Investors shall receive the benefit of such transaction as if the Securities to be issued to the Investor Investors at the Closing had been outstanding as of the date of such action and (c) to the extent reasonably practicable, shall consult with the Investor Investors prior to taking any material actions outside of the ordinary course of business. Additionally, Additionally except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 3.4 of the Disclosure Schedule, the Company shall and shall cause the Bank Company Subsidiaries to not take any of the following actions: (i) grant or provide any severance or termination payments or benefits to any director, officer or Employee of the Company or any of the BankCompany Subsidiaries; (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or Employee of the Company or any of the BankCompany Subsidiaries; (iii) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards; (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan; (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vi) forgive any loans to directors, officers or Employees of the Company or any of the BankCompany Subsidiaries.

Conduct of the Business. Prior to the earlier of the Closing Date or and the termination of this Agreement pursuant to Section 5.1Article 9, the Company shall, and, shall cause each of the Bank Company Subsidiaries to: (a) use commercially reasonable efforts to carry on its business in the ordinary course of business and use reasonable best efforts to maintain and preserve its and the Bank’s its subsidiaries’ business (including its organization, assets, properties, goodwill and insurance coverage) and preserve business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it; provided, that nothing in this clause (a) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their with, or reasonably likely to be necessary to enable the Company and the Company Subsidiaries to be able to comply with, the duties of the Board of Directors or the Company’s obligations under applicable law or imposed by any Governmental Entity, Entity and (b) if the Company shall (1) declare or pay any dividend or distribution (other than ordinary cash dividends consistent with past practices) on any shares of Company capital stock, or (2) take any action that would require any adjustment to be made under the terms of the Securities as if such Securities were issued on the date of this Agreement, make appropriate adjustments with respect to the Investor such that the Investor shall receive the benefit of such transaction as if the Securities to be issued to the Investor at the Closing had been outstanding as of the date of such action and (c) to the extent reasonably practicable, shall consult with the Investor Investors prior to taking any material actions outside of the ordinary course of business. AdditionallyWithout limiting the foregoing, except as required pursuant to existing written, binding agreements in effect prior to during the period from the date of this the Original Agreement and set forth in Section 3.4 of until the Disclosure ScheduleClosing Date, the Company shall and shall cause the Bank to Company Subsidiaries to, not take any of the following actions: (i) grant or provide any severance or termination payments or benefits to any director, officer or Employee employee of the Company or the Bankany of its subsidiaries, other than as required by any Company Benefit Plans; (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or Employee employee of the Company or any of its subsidiaries, other than (x) as required by any Company Benefit Plans or (y) increases in employee salaries, or bonus awards, made in the Bankordinary course consistent with past practice, that do not in aggregate exceed 5% of current aggregate employee salaries; (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, except that the Company expects to inform employees that it intends to adopt new equity incentive plans, or amend existing equity incentive plans, in each case, after the Closing Date, so that the Company will be able to make equity based awards to employees with regard to up to 4% of the shares of Common Stock that will be outstanding after the Closing and the conversion of the Series G Preferred Stock into Common Stock; (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan; (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vi) forgive any loans to directors, officers or Employees employees of the Company or any of the BankCompany Subsidiaries; (vii) amend its articles of incorporation, bylaws or other comparable charter or organizational documents of the Company or any of the Company Subsidiaries; (viii) except as contemplated or permitted by this Agreement and the other Investor Agreements or required by Company Benefit Plans, issue, deliver, sell, pledge or otherwise encumber or subject to any lien, security interest or other encumbrance any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options, to acquire any such shares, voting securities or convertible securities, of the Company or any of the Company Subsidiaries; (ix) amend, modify or waive any material term of any outstanding security of the Company or any of the Company Subsidiaries; (x) make or change any Tax election or adopt or change any material Tax practice or policy (unless required by applicable law) or change its fiscal year or accounting methods, policies or practices (except as required by changes in GAAP; (xi) except as expressly contemplated in the applicable organizational documents, adjust, split, combine or reclassify any of the Company’s capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (xii) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or securities (other than pursuant to any Company Benefit Plan); or (xiii) authorize any of, or commit or agree to take any of, the foregoing actions.

Conduct of the Business. Prior to the earlier of the Closing Date or and the termination of this Agreement pursuant to Section 5.15.1 (the “Pre-Closing Period”), the Company shall, and, and shall cause each of the Bank Company’s Significant Subsidiaries to: (a) , use commercially reasonable efforts to carry on its business in all material respects in the ordinary course of business and use reasonable best efforts to maintain and preserve in all material respects its and the Banksuch Significant Subsidiary’s business (including its organization, assets, properties, goodwill and insurance coverage) and preserve its business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it; provided, provided that nothing in this clause sentence shall (ai) shall limit any actions that the board of directors of the Company (the “Board of Directors”) may, in good faith, determine to be consistent with, or (ii) require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their with, its duties or the Company’s obligations under applicable law or imposed by any Governmental EntityAuthority. During the Pre-Closing Period, (bi) if the Company shall (1) not declare or pay any dividend or distribution (other than ordinary on the Common Stock, except for regular quarterly cash dividends consistent paid by the Company on the Common Stock in the ordinary course, with past practicesusual record and payment dates and in accordance with the Company’s current dividend policy announced prior to the date hereof and (ii) on any shares of if the Company capital stock, or (2) take takes any action that would require any antidilution adjustment to be made under the terms of Warrants or the Securities Series D Preferred Shares as if such Securities were issued on the date of this Agreement, the Company shall make appropriate adjustments with respect to the Investor such that the Investor shall will receive the benefit of such transaction as if the Securities securities to be issued to purchased by the Investor at the Closing had been outstanding as of the date of such action and (c) to the extent reasonably practicable, shall consult with the Investor prior to taking any material actions outside of the ordinary course of business. Additionally, except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 3.4 of the Disclosure Schedule, the Company shall and shall cause the Bank to not take any of the following actions: (i) grant or provide any severance or termination payments or benefits to any director, officer or Employee of the Company or the Bank; (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or Employee of the Company or the Bank; (iii) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards; (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan; (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vi) forgive any loans to directors, officers or Employees of the Company or the Bankaction.

Conduct of the Business. Prior to the earlier of the Closing Date or and the termination of this Agreement pursuant to Section 5.15.1 (the “Pre-Closing Period”), the Company and the Company Bank shall, and, and shall cause the Bank each other Company Subsidiary to: , (ai) use commercially reasonable efforts to carry on conduct its business in the ordinary course of business and consistent with past practice, (ii) use reasonable best efforts to maintain preserve intact its current business organizations and its rights and permits issued by Governmental Entities, keep available the services of its current officers and key employees and preserve its and the Bank’s business (including its organization, assets, properties, goodwill and insurance coverage) and preserve business relationships with customers, strategic partners, suppliers, distributors Governmental Entities and others having business dealings with itit to the end that its goodwill and ongoing businesses shall be unimpaired, (iii) not take any action that would reasonably be expected to materially adversely affect or materially delay the receipt of any approvals of any Governmental Entity required to consummate the transactions contemplated hereby or by the other Transaction Documents or materially adversely affect or materially delay the consummation of the transactions contemplated hereby or by the other Transaction Documents, and (iv) not forgive any loans to directors, officers, or employees of the Company, the Company Bank or any of the other Company Subsidiaries (or any of such person’s immediate family members or Affiliates or any Affiliates of such person’s immediate family members); provided, that nothing in this clause (a) Section 3.4 shall limit or require any actions that the Board of Directors may, in good faithfaith and upon the advice of legal counsel, determine to be inconsistent with their duties or the Company’s obligations under applicable law or imposed by any Governmental Entity. During the Pre-Closing Period, (b) if the Company and the Company Bank shall (1) declare or pay any dividend or distribution (other than ordinary cash dividends consistent with past practices) on any shares of Company capital stock, or (2) take any action that would require any adjustment to be made under the terms of the Securities as if such Securities were issued on the date of this Agreement, make appropriate adjustments with respect provide to the Investor such that the Investor shall receive the benefit copies of such transaction as if the Securities to be issued all materials provided to the Investor at the Closing had been outstanding as members of any loan review or similar committee of the date of such action and (c) to the extent reasonably practicable, shall consult with the Investor prior to taking any material actions outside of the ordinary course of business. Additionally, except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 3.4 of the Disclosure ScheduleCompany, the Company shall and shall cause the Bank to not take any of the following actions: (i) grant or provide any severance or termination payments or benefits to any director, officer or Employee of the Company or the Bank; (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or Employee of the Company or the Bank; (iii) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards; (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure Company Subsidiary at the payment, of compensation or benefits under any Benefit Plan, same time such materials are provided to the extent not already provided in any members of such Benefit Plan; (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vi) forgive any loans to directors, officers or Employees of the Company or the Bankcommittee.

Conduct of the Business. Prior to (a) During the earlier Pre-Closing Period, except (i) as expressly set forth on Section 6.04 of the Closing Disclosure Schedule, (ii) as otherwise expressly provided for by this Agreement, (iii) as required by Law, (iv) as consented to in writing by Buyer beforehand (which consent will not be unreasonably withheld, delayed, or conditioned), or (v) for borrowing under any of the Acquired Companies’ credit facilities in effect on the Signing Date or in the termination Ordinary Course of this Agreement pursuant to Section 5.1Business, each of the Seller and the Company shall, and, shall will (and will cause the Bank its Affiliates to: ) (aA) use commercially reasonable efforts to (1) carry on its business the Business of the Acquired Companies in the ordinary course Ordinary Course of business Business and use reasonable best efforts to maintain and substantially in the same manner as previously conducted, (2) preserve its and the Bank’s current business (including its organization, assets(3) keep its physical assets in good working condition, propertiesordinary wear and tear excepted, goodwill and insurance coverage(4) and preserve business relationships maintain the existing relations of the Acquired Companies with their respective customers, strategic partners, suppliers, distributors licensors, sales representatives, creditors, employees, and others having material business dealings with itthe Acquired Companies; provided(B) not, that nothing in this clause (a) shall limit and cause any of the Acquired Companies not to, take any action or require any actions that the Board of Directors may, in good faith, determine omit to be inconsistent with their duties or the Company’s obligations under applicable law or imposed by any Governmental Entity, (b) if the Company shall (1) declare or pay any dividend or distribution (other than ordinary cash dividends consistent with past practices) on any shares of Company capital stock, or (2) take any action that would require any adjustment to be made under the terms of the Securities as if such Securities were issued on the date of this Agreement, make appropriate adjustments with respect to the Investor such that the Investor shall receive the benefit of such transaction as if the Securities to be issued to the Investor at the Closing had been outstanding as of the date of such action and (c) to the extent reasonably practicable, shall consult with the Investor prior to taking any material actions outside of the ordinary course of business. Additionally, except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 3.4 of the Disclosure Schedule, the Company shall and shall cause the Bank to not take any of the following actions: (i) grant changes, events or provide any severance conditions described in Section 5.06 to occur or termination payments authorize, agree, resolve, or benefits consent to any director, officer such action or Employee of the Company or the Bankomission; (iiC) increase the compensationnot incur any material Funded Debt (other than Permitted Debt); (D) not permit any distribution or dividend to any direct or indirect equityholder of any Acquired Company, bonus nor make any loans to any direct or pensionindirect Affiliate, welfareequityholder, severance employee, officer, manager, partner, director or other benefits ofagent of any Acquired Company, pay any bonus to, or make any new equity awards to any director, officer or Employee of the Company or the Bank; (iii) establish, adoptnor repay, amend or terminate any Benefit Plan or amend otherwise modify the terms of any outstanding equityof the Related-based awardsParty Loans or the Contracts relating thereto; and (ivE) take not pay any action bonus to accelerate the vesting or payment, or fund or in any employee other way secure the payment, of compensation or benefits under any Benefit Plan, than awards pursuant to the extent not already provided in any such Benefit Plan; (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change Company ESOP that are approved by the manner in which contributions to such plans are made or the basis Company’s board of directors on which such contributions are determined, except as may be required by GAAP; or (vi) forgive any loans to directors, officers or Employees of the Company or the Bankreasonable terms and conditions.

Conduct of the Business. Prior to the earlier of the Closing Date or and the termination of this Agreement pursuant to Section 5.1, the Company shall, and, shall cause the Bank each Company Subsidiary to: (a) use commercially reasonable efforts to carry on its business in the ordinary course of business and use reasonable best efforts to maintain and preserve its and the Banksuch Company Subsidiary’s business (including its organization, assets, properties, goodwill and insurance coverage) and preserve business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it; provided, that nothing in this clause (a) shall limit or require any actions that the Board of Directors may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable law or imposed by any Governmental Entity, (b) if the Company shall (1) declare or pay any dividend or distribution (other than ordinary cash dividends consistent with past practices) on any shares of Company capital stock, or (2) take any action that would require any adjustment to be made under the terms of the Securities as if such Securities were issued on the date of this Agreement, make appropriate adjustments with respect to the Investor such that the Investor shall receive the benefit of such transaction as if the Securities to be issued to the Investor at the Closing had been outstanding as of the date of such action and (c) to the extent reasonably practicable, shall consult with the Investor prior to taking any material actions outside of the ordinary course of business. Additionally, Additionally except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement and set forth in Section 3.4 of the Disclosure Schedule, the Company shall and shall cause the Bank Company Subsidiaries to not take any of the following actions: (i) grant or provide any severance or termination payments or benefits to any director, officer or Employee of the Company or any of the BankCompany Subsidiaries; (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or Employee of the Company or any of the BankCompany Subsidiaries; (iii) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards; (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan; (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vi) forgive any loans to directors, officers or Employees of the Company or any of the BankCompany Subsidiaries.