Common use of Conduct of Business Pending the Merger Clause in Contracts

Conduct of Business Pending the Merger. SECTION 5.01 Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the election or appointment of Purchaser's designees to the Board pursuant to Section 6.03 upon the purchase by Purchaser of any Shares pursuant to the Offer (the "Purchaser's Election Date"), unless Parent shall otherwise agree in writing, the businesses of the Company and the Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in, the ordinary course of business consistent with past practice and the Company shall use all reasonable efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers and other persons with which the Company or any Subsidiary has significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement or by Section 5.01 of the Disclosure Schedule, the Company agrees that neither the Company nor any Subsidiary shall, between the date of this Agreement and the Purchaser's Election Date, directly or indirectly do, or propose to do, any of the following without the prior written consent of Parent:

Conduct of Business Pending the Merger. SECTION 5.01 5.01. Conduct of Business by the Company Pending the MergerPurchaser's Election Date. The Company covenants and agrees that, between the date of this Agreement and the election or appointment of Purchaser's designees to the Board pursuant to Section 6.03 upon the purchase by Purchaser of any Shares pursuant to the Offer (the "Purchaser's Election Date"), unless Parent shall otherwise agree in writing, the businesses of the Company and the Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with past practice practice; and the Company shall use all its reasonable best efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the goodwill of those current relationships of the Company and the Subsidiaries with customers, suppliers and other persons with which the Company or any Subsidiary has significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement or by as disclosed in Section 5.01 of the Disclosure Schedule, the Company agrees that neither the Company nor any Subsidiary shallshall not, between the date of this Agreement and the Purchaser's Election Date, directly or indirectly do, or propose to do, any of the following without the prior written consent of Parent:

Conduct of Business Pending the Merger. SECTION 5.01 Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the election or appointment of Purchaser's designees to the Board pursuant to Section 6.03 upon the purchase by Purchaser of any Shares pursuant to the Offer (the "Purchaser's Election Date"), unless Parent shall otherwise agree in writing, the businesses of the Company and the Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in, the ordinary course of business consistent with past practice and the Company shall use all reasonable best efforts consistent with good business judgment under the current circumstances to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers suppliers, vendors, distributors and other persons with which the Company or any Subsidiary has significant business relationsrelations to the end that their goodwill and ongoing businesses shall be unimpaired in all material respects at the Effective Time. By way of amplification and not limitation, except as contemplated by this Agreement or by Section 5.01 of the Disclosure Schedule, the Company agrees that neither the Company nor any Subsidiary shall, between the date of this Agreement and the Purchaser's Election Date, directly or indirectly do, or propose to do, any of the following without the prior written consent of Parent:

Conduct of Business Pending the Merger. SECTION 5.01 6.01 Conduct of Business by the Company Pending the Merger. The Except as expressly contemplated by this Agreement or in Section 6.01 of the Company Disclosure Schedule, the Company covenants and agrees that, between the date of this Agreement and the election or appointment of Purchaser's designees to the Board pursuant to Section 6.03 upon the purchase by Purchaser of any Shares pursuant to the Offer (the "Purchaser's Election Date")Effective Time, unless Parent shall otherwise agree in writing, the businesses of the Company and the Company's Subsidiaries shall be conducted only in, and the Company and the Company's Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with past practice practice; and the Company shall use all its reasonable best efforts to preserve substantially intact the business organization of the Company and the Company's Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Company's Subsidiaries and to preserve the current relationships of the Company and the Company's Subsidiaries with customers, suppliers and other persons with which the Company or any Subsidiary of the Company has significant business relations. By way of amplification and not limitation, except as expressly contemplated by this Agreement or by Section 5.01 of the Disclosure ScheduleAgreement, the Company agrees that neither the Company nor any Subsidiary of the Company shall, between the date of this Agreement and the Purchaser's Election DateEffective Time, directly or indirectly doindirectly, or propose to do, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed:

Conduct of Business Pending the Merger. SECTION 5.01 Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the election Effective Time, except as required by applicable Law, as set forth in Section 5.01 of the Company Disclosure Letter or appointment as expressly contemplated by any other provision of Purchaser's designees to the Board pursuant to Section 6.03 upon the purchase by Purchaser of any Shares pursuant to the Offer (the "Purchaser's Election Date")this Agreement, unless Parent shall otherwise agree consent in writingwriting (which consent shall not be unreasonably withheld, delayed or conditioned), (i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, a lawfully permitted manner in the ordinary course of business and in a manner consistent with past practice practice; and (ii) the Company shall use all its commercially reasonable efforts to preserve substantially intact the business organization of the Company and the Company Subsidiaries, to keep available the services of the current officers, employees employees, consultants, contractors, subcontractors and consultants agents of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with Governmental Authorities, customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business material relations. By way of amplification and not limitation, except as contemplated required by this Agreement or by applicable Law, as set forth in Section 5.01 of the Company Disclosure ScheduleLetter or as expressly contemplated by any other provision of this Agreement, the Company agrees that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Purchaser's Election DateEffective Time, directly or indirectly doindirectly, or propose to do, do any of the following without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld, delayed or conditioned):

Conduct of Business Pending the Merger. SECTION 5.01 5.1. Conduct of the Business of the Company. Except as contemplated by this Agreement or as otherwise set forth on Section 5.1 of the Company Pending Disclosure Letter, during the Merger. The Company covenants and agrees that, between period from the date of this Agreement and the election or appointment of Purchaser's designees to the Board pursuant to Section 6.03 upon the purchase by Purchaser of any Shares pursuant to the Offer (the "Purchaser's Election Date")Effective Time, unless Parent shall otherwise agree in writing, the businesses of the Company and the Company Subsidiaries shall be conducted only inwill each conduct its operations in all material respects according to its ordinary and usual course of business, and the Company and the Subsidiaries shall not take any action except in, the ordinary course of business consistent with past practice and the Company shall will use all commercially reasonable efforts to preserve substantially intact the its business organization of the Company and the Subsidiariesorganization, to keep available the services of the current officers, its officers and employees and consultants to maintain satisfactory relationships with customers, suppliers and others having business relationships with it and will take no action that could reasonably be deemed to have a material adverse effect on the ability of the Company to consummate the transactions contemplated by this Agreement, or the timing thereof. The Company shall consult regularly with Parent on the management and business affairs of the Company and the Subsidiaries and to preserve Company Subsidiaries. The Company will promptly advise the current relationships Parent in writing of any change in the Company's or any of the Company Subsidiaries' business or financial condition which is materially adverse to it and the Company Subsidiaries with customers, suppliers and other persons with which taken as a whole. Without limiting the Company or any Subsidiary has significant business relations. By way generality of amplification and not limitationthe foregoing, except as set forth on Section 5.1 of the Company Disclosure Letter, and except as otherwise expressly contemplated by this Agreement or by Section 5.01 of Agreement, prior to the Disclosure ScheduleEffective Time, the Company agrees that neither the Company nor any Subsidiary shall, between the date of this Agreement and the Purchaser's Election Date, directly or indirectly do, or propose to do, any of the following Company Subsidiaries will, without the prior written consent of the Parent:

Conduct of Business Pending the Merger. SECTION 5.01 4.1. Conduct of Business by the Company Pending the MergerClosing. The Company covenants and agrees that, between From the date of this Agreement and the election or appointment of Purchaser's designees to the Board pursuant Effective Time, except as may be required to Section 6.03 upon satisfy the purchase by Purchaser of any Shares pursuant to the Offer (the "PurchaserCompany's Election Date"), unless Parent shall obligations under this Agreement or as Merger Sub may otherwise agree in writing, the businesses of the Company and the Subsidiaries shall be conducted only inshall, and the Company and the Subsidiaries shall not take any action except in, the ordinary course cause each of business consistent with past practice and the Company shall use all reasonable efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to (i) carry on its respective businesses in the ordinary course, (ii) use all reasonable best efforts to preserve intact its current business organizations and keep available the services of the its current officersofficers and key employees, employees and consultants of the Company and the Subsidiaries and (iii) use all reasonable best efforts to preserve the current its relationships of the Company and the Subsidiaries with customers, suppliers suppliers, third party payors and other persons Persons with which the Company it has business dealings, (iv) comply in all material respects with all laws and regulations applicable to it or any Subsidiary has significant of its properties, assets or business relationsand (v) maintain in full force and effect all Company Permits or related approvals necessary for such business. By way Any action taken or failure to take action by the Company, which action or failure to take action was specifically approved by the affirmative vote of amplification and not limitation, except as contemplated by this Agreement or by Section 5.01 at least seventy five percent of the Disclosure Schedule, the Company agrees that neither the Company nor any Subsidiary shall, between the date of this Agreement and the Purchaser's Election Date, directly or indirectly do, or propose to do, any Members of the following without Company's entire Board of Directors shall be deemed to constitute the prior written consent of ParentMerger Sub under this Section 4.1. Without limiting the generality of the foregoing, except as may be required to satisfy the Company's obligations under this Agreement or as Merger Sub may otherwise agree in writing, the Company shall not, and shall cause each of the Subsidiaries not to:

Conduct of Business Pending the Merger. SECTION 5.01 5.1 Conduct of Business by of the Company Pending the MergerCompany. The Company covenants and agrees that, between during the period from the date of this Agreement and continuing until the election earlier of the termination of this Agreement or appointment of Purchaser's designees to the Board pursuant to Section 6.03 upon the purchase by Purchaser of any Shares pursuant to the Offer (the "Purchaser's Election Date")Effective Time, unless Parent shall otherwise agree in writing, which agreement shall not be unreasonably withheld or delayed, the Company shall conduct its business and shall cause the businesses of the Company and the Subsidiaries shall to be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business in a manner consistent with past practice and the except as expressly contemplated by this Agreement. The Company shall use all reasonable best efforts to preserve substantially intact the business organization and material assets and maintain the material rights of the Company and the Company Subsidiaries, to keep available the services of the current present officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current present relationships of the Company and the Company Subsidiaries with customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations. By way of amplification and not limitationWithout limiting the foregoing, except as contemplated by this Agreement or by Section 5.01 of the Disclosure ScheduleAgreement, the Company agrees that neither the Company nor any Company Subsidiary shall, between during the period from the date of this Agreement and continuing until the Purchaser's Election Dateearlier of the termination of this Agreement or the Effective Time, directly or indirectly do, or propose to do, do any of the following without the prior written consent of Parent:

Conduct of Business Pending the Merger. SECTION 5.01 Section 6.01. Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the election earliest to occur of (i) the date of termination of this Agreement, (ii) the date directors designated by Parent or appointment Purchaser have been elected to and constitute a majority of Purchaser's designees to the Board pursuant to or (iii) the Effective Time, except as contemplated by Section 6.03 upon 6.01 of the purchase by Purchaser of any Shares pursuant to the Offer (the "Purchaser's Election Date"), Disclosure Schedule or unless Parent shall otherwise agree in writing, the businesses of the Company and the Subsidiaries taken as a whole shall be conducted only in, and the Company and the Subsidiaries shall not take any material action except in, the ordinary course of business and in a manner consistent with past practice practice; and the Company shall use all reasonable efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers and other persons with which the Company or any Subsidiary has significant business relations. By way of amplification and not limitation, except as expressly contemplated by this Agreement or by and Section 5.01 6.01 of the Disclosure Schedule, the Company agrees that neither the Company nor any Subsidiary shall, between the date of this Agreement and the Purchaser's Election Dateearliest to occur of the (i) date of termination of this Agreement, (ii) the date directors designated by Parent or Purchaser have been elected to and constitute a majority of the Board or (iii) the Effective Time, directly or indirectly indirectly, do, or propose to do, any of the following without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld):

Conduct of Business Pending the Merger. SECTION Section 5.01 Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between from the date of this Agreement and until the election earlier of the Effective Time or appointment the termination of Purchaser's designees to this Agreement in accordance with Article VIII, except as required by applicable Law, as set forth in Section 5.01 of the Board pursuant to Section 6.03 upon the purchase Company Disclosure Letter or as expressly contemplated by Purchaser any other provision of any Shares pursuant to the Offer (the "Purchaser's Election Date")this Agreement, unless Parent shall otherwise agree consent in writingwriting (which consent shall not be unreasonably withheld, delayed or conditioned), (i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in, in the ordinary course of business and in a manner consistent with past practice in all material aspects; and (ii) the Company shall use all its commercially reasonable efforts to preserve substantially intact the business organization of the Company and the Company Subsidiaries, to keep available the services of the current officers, officers and key employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with Governmental Authorities, customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relationsrelations that are material to the Company and the Company Subsidiaries, taken as a whole. By way of amplification and not limitationFurther, except as contemplated required by this Agreement or by applicable Law, as set forth in Section 5.01 of the Company Disclosure ScheduleLetter or as expressly contemplated or permitted by any other provision of this Agreement, the Company agrees that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Purchaser's Election Dateearlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, directly or indirectly doindirectly, or propose to do, do any of the following without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld, conditioned, or delayed):

Conduct of Business Pending the Merger. SECTION 5.01 4.01. Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between during the period from the date of this Agreement and continuing until the election earlier of the termination of this Agreement or appointment of Purchaser's designees to the Board pursuant to Section 6.03 upon the purchase by Purchaser of any Shares pursuant to the Offer (the "Purchaser's Election Date")Effective Time, unless Parent shall otherwise agree in writing, and except as set forth in Section 4.01 of the Company Disclosure Schedule, or as required by law with prompt notification to Parent, the Company shall conduct its business and shall cause the businesses of the Company and the Subsidiaries shall its subsidiaries to be conducted only in, and the Company and the Subsidiaries its subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with past practice practice; and the Company shall use all reasonable commercial efforts to preserve substantially intact the business organization of the Company and the Subsidiariesits subsidiaries, to keep available the services of the current present officers, employees and consultants of the Company and the Subsidiaries its subsidiaries and to preserve the current present relationships of the Company and the Subsidiaries its subsidiaries with customers, suppliers and other persons with which the Company or any Subsidiary of its subsidiaries has significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement or by Agreement, as set forth in Section 5.01 4.01 of the Company Disclosure ScheduleSchedule or as required by law with advance written notification to Parent, the Company agrees that neither the Company nor any Subsidiary of its subsidiaries shall, between during the period from the date of this Agreement and continuing until the Purchaser's Election Dateearlier of the termination of this Agreement or the Effective Time, directly or indirectly do, or publicly propose to do, any of the following without the prior written consent of Parent, which, in the case of clauses (c), (d)(i) (but only in respect of cross-border dividends by a subsidiary), (d)(iv), (e)(iv), (f), (h) or (i), will not be unreasonably withheld or delayed:

Conduct of Business Pending the Merger. SECTION 5.01 Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between During the period from the date of this Agreement and continuing until the election earlier of the termination of this Agreement or appointment of Purchaser's designees to the Board pursuant to Section 6.03 upon Effective Time, (a) the purchase by Purchaser of any Shares pursuant to the Offer (the "Purchaser's Election Date"), unless Parent shall otherwise agree in writing, the businesses business of the Company and the Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in, the ordinary course of business consistent business, and in accordance in all material respects with past practice all applicable laws, rules and regulations, and (b) the Company agrees (except to the extent that Parent shall otherwise consent in writing), to use all reasonable efforts to preserve substantially intact the business organization of the Company consistent with past practices and the Subsidiaries, policies to keep available the services of the current officers, its present officers and key employees and consultants and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be unimpaired, in any material respect, at the Effective Time. The Company shall promptly notify Parent of any event or occurrence not in the ordinary course of business of the Company and shall notify Parent of any change in the Subsidiaries and to preserve the current relationships operation of the Company’s business activities and of any governmental or third party complaints, investigations or proceedings if such complaint, change, investigation, or hearing would have, or would reasonably be expected to have, a Company and Material Adverse Effect or would be material to any party’s ability to consummate the Subsidiaries with customers, suppliers and other persons with which transactions contemplated by the Company or any Subsidiary has significant business relationsTransaction Documents. By way of amplification and not limitation, except as contemplated by this Agreement or by as set forth in Section 5.01 of the Company Disclosure Schedule, the Company agrees that neither the Company nor any Subsidiary shallshall not, between the date of this Agreement and the Purchaser's Election DateEffective Time, directly or indirectly do, or propose to do, do any of the following without the prior written consent of Parent:

Conduct of Business Pending the Merger. SECTION 5.01 5.1 Conduct of Business by of the Company Pending the Merger. The Company covenants and agrees that, between the date of except as expressly permitted by this Agreement and or as set forth in Section 5.1 of the election or appointment of Purchaser's designees to Company Disclosure Letter, until the Board pursuant to Section 6.03 upon the purchase by Purchaser of any Shares pursuant to the Offer (the "Purchaser's Election Date")Effective Time, unless the Parent shall otherwise agree in writingwriting prior to the taking of any action otherwise prohibited by the terms of this Section 5.1, the businesses Company shall, and shall cause each Company Subsidiary to, conduct its operations and business in the ordinary and usual course of business and consistent with past practice and, to the Company extent consistent therewith, with no less diligence and effort than would be applied in the Subsidiaries absence of this Agreement, seek to preserve intact its business organizations' goodwill, keep available the services of its present officers and key employees, and preserve the goodwill and business relationships with suppliers, distributors, customers and others having business relationships with it, with the intent that such goodwill and ongoing business relationships shall be conducted only in, and unimpaired in all material respects at the Effective Time. The Company and agrees that it will maintain its cash management policies in effect on the Subsidiaries shall not take any action except in, date hereof in the ordinary course of business consistent with past practice and that it will continue to maintain insurance of the types and in the amounts in effect on the date hereof as long as such insurance is available to the Company shall use all on commercially reasonable efforts to preserve substantially intact terms, including at comparable rates. Without limiting the business organization generality of the Company foregoing, and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers and other persons with which the Company or any Subsidiary has significant business relations. By way of amplification and not limitation, except as contemplated otherwise expressly permitted by this Agreement or by as set forth in Section 5.01 5.1 of the Company Disclosure ScheduleLetter, prior to the Company agrees that neither the Company nor any Subsidiary shallEffective Time, between the date of this Agreement and the Purchaser's Election Date, directly or indirectly do, or propose to do, any of the following without the prior written consent of the Parent, the Company will not, and will cause each Company Subsidiary not to: