Common use of Conduct of the Business Clause in Contracts

Conduct of the Business. Prior to the earlier of the Closing and the termination of this Agreement (the “Pre-Closing Period”), the Company shall not, and shall cause each of its Subsidiaries not to, take any actions outside of the ordinary course of business. During the Pre-Closing Period, except as contemplated by this Agreement, as approved by the full board of directors of the Company (the “Board”) prior to the taking of such action or with the prior written consent of Xxxxxx Investing LLC on behalf of all of the Investors, the Company shall not, and shall cause each of its Subsidiaries not to: (i) declare or pay any dividend or distribution on its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock (except for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), (ii) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, (iii) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any of its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock, (iv) other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance of the Rights and the Common Stock issuable upon the exercise thereof), (v) make any amendments to its organizational documents, (vi) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets in the ordinary course of business consistent with past practice; (vii) make any material acquisitions, by purchase or other acquisition of shares or other equity interests, or by merger, consolidation or other business combination, or material purchase of any property or assets, to or from any Person (except in respect of the Full Circle Capital Corporation transaction), (viii) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, or (ix) agree or commit to do any of the foregoing. For the avoidance of doubt, the foregoing shall not restrict the Company from engaging in discussions with a third party with respect to a Superior Transaction or terminating this Agreement to enter into a definitive agreement to effect a Superior Transaction (provided that prior to or concurrently with such termination the Company pays the Termination Fee per Section ‎8.4(b)).

Conduct of the Business. Prior to the earlier of the Closing Date and the termination of this Agreement (the “Pre-Closing Period”)pursuant to Article IV, the Company shall notshall, and and, shall cause each Company Subsidiary to: (a) use commercially reasonable efforts to carry on its business in the ordinary course of business and use commercially reasonable efforts to maintain and preserve its and such Company Subsidiary’s business (including its organization, assets, properties, goodwill and insurance coverage) and preserve business relationships with customers, vendors, strategic partners and others having business dealings with it; provided, that nothing in this clause (a) shall require any actions or inaction 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) refrain from (1) declaring, setting aside or paying any distributions or dividends on, or making any other distributions (whether in cash, securities or other property) in respect of, any of its Subsidiaries not capital stock; (2) splitting, combining or reclassifying any of its capital stock or issuing or authorizing the issuance of any other securities in respect of, in lieu of or in substitution for capital stock or any of its other securities; (3) purchasing, redeeming or otherwise acquiring any capital stock or any of its other securities or any rights, warrants or options to acquire any such capital stock or other securities; (4) issuing, delivering, selling, granting, pledging or otherwise disposing of or encumbering any capital stock, any other Voting Securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such capital stock, Voting Securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement; or (5) entering into any contract with respect to, take or otherwise agreeing or committing to do, any of the foregoing; 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; provided that the Company shall not consult with the Investor with respect to such material actions or provide any material non-public information to the Investor unless the Company first seeks and obtains the Investor’s prior consent to be so consulted or to receive such information. During the Pre-Closing PeriodAdditionally, except as contemplated by this Agreementrequired pursuant to existing written, as approved by the full board of directors of the Company (the “Board”) binding agreements in effect prior to the taking of such action or with the prior written consent of Xxxxxx Investing LLC on behalf of all date hereof and set forth in Section 3.9 of the Investors, the Company shall notDisclosure Schedule, and shall cause each of its Subsidiaries not to: with respect to clauses (i) declare or pay any dividend or distribution on its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock (except for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), and (ii) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, (iii) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any of its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock, (iv) other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance of the Rights and the Common Stock issuable upon the exercise thereof), (v) make any amendments to its organizational documents, (vi) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets except in the ordinary course of business consistent with past practice, prior to the earlier of the Closing Date and the termination of this Agreement pursuant to Article IV, the Company shall and shall cause the 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 Company 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 Company Subsidiaries; (iii) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards, except as may be required by applicable law; (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; (vi) forgive any loans to directors, officers or employees of the Company or any of the Company Subsidiaries; or (vii) make enter into any material acquisitions, by purchase or other acquisition of shares or other equity interestscontract with respect to, or by merger, consolidation or other business combination, or material purchase of any property or assets, to or from any Person (except in respect of the Full Circle Capital Corporation transaction), (viii) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, or (ix) otherwise agree or commit to do do, any of the foregoing. For ; provided, that in no event shall any increase of any payment in the avoidance ordinary course of doubt, business under clause (ii) increase such person’s compensation by more than 5% in the foregoing shall not restrict aggregate except as set forth in Section 3.9 of the Company from engaging in discussions with a third party with respect to a Superior Transaction or terminating this Agreement to enter into a definitive agreement to effect a Superior Transaction (provided that prior to or concurrently with such termination the Company pays the Termination Fee per Section ‎8.4(b))Disclosure Schedule.

Conduct of the Business. Prior to the earlier of the Second Closing Date and the termination of this Agreement (the “Pre-Closing Period”)pursuant to Article IV, the Company shall notshall, and and, shall cause each Company Subsidiary to: (a) use commercially reasonable efforts to carry on its business in the ordinary course of business and use commercially reasonable efforts to maintain and preserve its and such Company Subsidiary’s business (including its organization, assets, properties, goodwill and insurance coverage) and preserve business relationships with customers, vendors, strategic partners and others having business dealings with it; provided, that nothing in this clause (a) shall require any actions or inaction 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) refrain from (1) declaring, setting aside or paying any distributions or dividends on, or making any other distributions (whether in cash, securities or other property) in respect of, any of its Subsidiaries not capital stock; (2) splitting, combining or reclassifying any of its capital stock or issuing or authorizing the issuance of any other securities in respect of, in lieu of or in substitution for capital stock or any of its other securities; (3) purchasing, redeeming or otherwise acquiring any capital stock or any of its other securities or any rights, warrants or options to acquire any such capital stock or other securities; (4) issuing, delivering, selling, granting, pledging or otherwise disposing of or encumbering any capital stock, any other Voting Securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such capital stock, Voting Securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement; or (5) entering into any contract with respect to, take or otherwise agreeing or committing to do, any of the foregoing; 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. During the Pre-Closing PeriodExcept as required pursuant to existing written, except as contemplated by this Agreement, as approved by the full board of directors of the Company (the “Board”) binding agreements in effect prior to the taking of such action or with date hereof, prior to the prior written consent of Xxxxxx Investing LLC on behalf of all earlier of the InvestorsSecond Closing Date and the termination of this Agreement pursuant to Article IV, the Company shall not, and shall cause each the Company Subsidiaries to not take any of its Subsidiaries not tothe following actions: (i) declare establish, adopt, amend or pay terminate any dividend Benefit Plan or distribution on its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock (except for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), (ii) adjust, split, combine or reclassify or otherwise amend the terms of its capital stockany outstanding equity-based awards, except as may be required by applicable law; (ii) 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; (iii) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, change any of its shares, interests, rights to purchase, warrants, options, participations actuarial or other equivalents 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 any provision of any law, rule or interests in (however designated) its capital stock, regulation; (iv) other than Excluded Issuancesforgive any loans to directors, issue, grant, deliver officers or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance employees of the Rights and Company or any of the Common Stock issuable upon the exercise thereofCompany Subsidiaries in an individual amount of five hundred dollars or more or, collectively, in an amount equal to or greater than five thousand dollars ($5,000), ; or (v) make enter into any amendments to its organizational documentscontract with respect to, (vi) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets in the ordinary course of business consistent with past practice; (vii) make any material acquisitions, by purchase or other acquisition of shares or other equity interests, or by merger, consolidation or other business combination, or material purchase of any property or assets, to or from any Person (except in respect of the Full Circle Capital Corporation transaction), (viii) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, or (ix) agree or commit to do do, any of the foregoing. For the avoidance of doubt, the foregoing shall not restrict the Company from engaging in discussions with a third party with respect to a Superior Transaction or terminating this Agreement to enter into a definitive agreement to effect a Superior Transaction (provided that prior to or concurrently with such termination the Company pays the Termination Fee per Section ‎8.4(b)).

Conduct of the Business. Prior to During the earlier of period from the Closing and date hereof until the termination of Closing, Seller shall, except as otherwise contemplated by this Agreement (the “Pre-Closing Period”), the Company shall notor as set forth on Schedule 4.1, and shall cause each of its Subsidiaries not Affiliates to, take any actions outside of operate the ordinary course of business. During the Pre-Closing Period, except as contemplated by this Agreement, as approved by the full board of directors of the Company (the “Board”) prior to the taking of such action or with the prior written consent of Xxxxxx Investing LLC on behalf of all of the Investors, the Company shall not, and shall cause each of its Subsidiaries not to: (i) declare or pay any dividend or distribution on its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock (except for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), (ii) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, (iii) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any of its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock, (iv) other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance of the Rights and the Common Stock issuable upon the exercise thereof), (v) make any amendments to its organizational documents, (vi) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets Businesses only in the ordinary course of business consistent with past practice; practices and shall, and shall cause its Affiliates to, use its or their reasonable efforts to preserve intact the Acquired Assets and the Businesses. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement, from the date of this Agreement until Closing Date, without the prior written consent of Purchaser (viiwhich consent shall not be unreasonably withheld), Seller: (a) shall not, and shall cause its Affiliates not to, mortgage, pledge or subject to any Lien (other than Permitted Liens) any Acquired Asset, (b) shall, and shall cause its Affiliates to, use its and their reasonable efforts to maintain satisfactory relationships with and preserve the goodwill of suppliers and customers in connection with the conduct of the Businesses, (c) shall not, and shall cause its Affiliates not to, transfer or grant any rights or options in or to any of the Acquired Assets except for the transfer of inventory in the ordinary course of business, (d) shall not, and shall cause its Affiliates not to, transfer to any third party any rights under any licenses, sublicenses or other agreements with respect to any Intellectual Property, (e) shall, and shall cause its Affiliates to, conduct its marketing and promotional activities with respect to the Products in the ordinary course of each Business consistent with past practices, (f) shall not, and shall cause its Affiliates not to, institute any new methods of purchase, sale or operation nor institute any changes in the product pricing or in promotional allowances other than in the ordinary course of each Business consistent with past practices, (g) shall not, and shall cause its Affiliates not to, make any material acquisitionschanges in selling, by purchase pricing or other acquisition advertising practices inconsistent with past practices and (h) shall not launch any Product packaging changes or Product line extensions, including the Estrace(R) Cream "Unit of shares or other equity interestsUse" line extension. Without limiting the foregoing in clause (g), or by mergerSeller shall not, consolidation or other business combinationand shall cause its Affiliates not to, or material purchase engage in any special promotions of any property Product or assets, to or from establish any Person (except in respect tie-ins of the Full Circle Capital Corporation transaction), (viii) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, or (ix) agree or commit to do any Product with any of the foregoing. For the avoidance of doubt, the foregoing shall not restrict the Company from engaging in discussions with a third party with respect to a Superior Transaction Seller's or terminating this Agreement to enter into a definitive agreement to effect a Superior Transaction (provided that prior to or concurrently with such termination the Company pays the Termination Fee per Section ‎8.4(b))its Affiliates' other products.

Conduct of the Business. Prior to the earlier of the Closing Date and the termination of this Agreement pursuant to Section 5.1 (the “Pre-Closing Period”), the Company shall notshall, and shall cause each of its Subsidiaries not Company Subsidiary to, take any actions outside of use commercially reasonable efforts to carry on its business in the ordinary course of businessbusiness and use reasonable best efforts to maintain and preserve its and such Company 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 that nothing in this sentence 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. During the Pre-Closing Period, except if the Company takes any action that would require any anti-dilution adjustment to be made under the Warrants as contemplated by if issued on the date of this Agreement, the Company shall make appropriate adjustments such that each Anchor Investor will receive the benefit of such transaction as approved if the Securities to be delivered and paid for by each Anchor Investor on the Closing Date had been outstanding as of the date of such action. Except as otherwise expressly required by this Agreement or applicable Law, by the full board performance of directors of the any Company (the “Board”) prior to the taking of such action Significant Agreement that was Previously Disclosed, or with the prior written consent of Xxxxxx Investing LLC on behalf of all of each Anchor Investor, during the InvestorsPre-Closing Period, the Company shall not, and shall cause each of its Subsidiaries not to: (i) declare declare, set aside or pay any dividend distributions or distribution on its sharesdividends on, interestsor make any other distributions (whether in cash, rights to purchase, warrants, options, participations securities or other equivalents property) in respect of, any of or interests in (however designated) stock (except for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), its capital stock; (ii) adjust, split, combine or reclassify or otherwise amend the terms any of its capital stockstock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for capital stock or any of its other securities; (iii) repurchase, redeem, purchase, acquireredeem or otherwise acquire any capital stock or any of its other securities or any rights, encumberwarrants or options to acquire any such capital stock or other securities; (iv) issue, pledgedeliver, sell, grant, pledge or otherwise dispose of or otherwise transfer, directly or indirectly, encumber any of its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock, (iv) any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such capital stock, Voting Securities or convertible or exchangeable securities, or any phantom rights in respect thereof, other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance of the Rights and the Common Stock issuable upon on exercise of any compensatory stock options outstanding on the exercise thereof)date of this Agreement, (v) make any amendments except with respect to its organizational documentsemployees having a job title below the level of officer, (vi) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets and solely to the extent in the Company’s ordinary course of business consistent with past practice, terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, officer, consulting, severance, change in control or similar contract, agreement or arrangement with any current or former director, officer, employee or consultant or make, grant or promise any cash bonus or any wage, salary or cash compensation or benefit increase to any director, officer, employee, sales representative or consultant or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement; (vi) except with respect to employees having a job title below the level of officer, and solely to the extent in the Company’s ordinary course of business consistent with past practice, terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any pension, retirement, savings, profit sharing, cash-based deferred compensation, consulting, cash bonus, group insurance or other employee benefit, cash incentive or welfare contract plan or arrangement, or any trust agreement (or similar arrangement) related thereto or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action); (vii) make any material acquisitions, by purchase or other acquisition of shares or other equity interests, or by merger, consolidation or other business combination, or material purchase of any property or assets, to or from any Person (except in respect of any director, officer, employee or consultant, make new equity grants or awards under any stock option, stock incentive, stock purchase, or other employee benefit, incentive or other plan or arrangement, or amend the Full Circle Capital Corporation transactionterms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of stock options, restricted stock, other equity awards or other compensation or benefits payable thereunder (or, with respect to any of the preceding, communicate any intention to take such action), ; (viii) adopt change any method of Tax accounting, make or change any Tax election, file any amended Tax Return, settle or compromise any Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes, enter into any closing agreement with respect to any Tax or surrender any right to claim a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, or Tax refund; and (ix) enter into any contract with respect to, or otherwise agree or commit to do do, any of the foregoing. For the avoidance of doubt, the foregoing shall not restrict the Company from engaging in discussions with a third party with respect to a Superior Transaction or terminating this Agreement to enter into a definitive agreement to effect a Superior Transaction (provided that prior to or concurrently with such termination the Company pays the Termination Fee per Section ‎8.4(b)).

Conduct of the Business. Prior to the earlier of the Closing and the termination of this Agreement (the “Pre-Closing Period”), the Company shall not, and shall cause each of its Subsidiaries not to, take any actions outside of the ordinary course of business. During the Pre-Closing Period, except as contemplated by this Agreement, as approved by the full board of directors of the Company (the “Board”) prior to the taking of such action or with the prior written consent of Xxxxxx Investing LLC Novelty Capital Partners LP on behalf of all of the Investors, the Company shall not, and shall cause each of its Subsidiaries not to: (i) declare or pay any dividend or distribution on its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock (except pursuant to the Rights Offering and for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), (ii) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, (iii) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any of its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock, (iv) other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance of the Rights and the Common Stock issuable upon the exercise thereof), (v) make any amendments to its organizational documents, (vi) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets in the ordinary course of business consistent with past practice; (vii) make any material acquisitions, by purchase or other acquisition of shares or other equity interests, or by merger, consolidation or other business combination, or material purchase of any property or assets, to or from any Person (except in respect of the Full Circle Capital Corporation transaction)Person, (viii) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, or (ix) agree or commit to do any of the foregoing. For the avoidance of doubt, the foregoing shall not restrict the Company from engaging in discussions with a third party with respect to a Superior Transaction or terminating this Agreement to enter into a definitive agreement to effect a Superior Transaction (provided that prior to or concurrently with such termination the Company pays the Termination Fee per Section ‎8.4(b)).

Conduct of the Business. Prior Except as otherwise contemplated by this Agreement or as set forth in Section 5.1 of the Disclosure Schedule or in any other Section of the Disclosure Schedule, during the period from the date hereof to the earlier of the Closing and the termination of this Agreement (the “Pre-Closing Period”)Closing, the Company shall notSellers shall, and shall cause each of its Subsidiaries not the PEPL Companies to, take taking into account any actions outside matters that may arise that are attributable to the pendency of the ordinary course of business. During the Pre-Closing Period, except as transactions contemplated by this Agreement, as approved by (a) conduct the full board of directors Business only in the ordinary course, consistent with past practice and (b) use their respective reasonable best efforts to preserve the business organization of the Company (PEPL Companies intact, keep available the “Board”) prior services of the current officers and employees of the PEPL Companies and maintain the existing relations with franchisees, customers, suppliers, creditors and business partners having business dealings with the PEPL Companies. In addition, from and after the date hereof to the taking Closing Date, except as otherwise contemplated by this Agreement or as set forth in Section 5.1 of such action or with the Disclosure Schedule, Sellers shall not permit any PEPL Company to, without the prior written consent of Xxxxxx Investing LLC on behalf of all of the Investors, the Company Acquiror (which consent shall not, and shall cause each of its Subsidiaries not to: be unreasonably withheld or delayed): (i) declare or pay any dividend or distribution on amend its sharesCertificate of Incorporation, interests, rights to purchase, warrants, options, participations By-Laws or other equivalents of comparable charter or interests in (however designated) stock (except for dividends paid by any direct organizational documents or indirect wholly owned Subsidiary of the Company to the Company merge with or to into or consolidate with any other direct or indirect wholly owned Subsidiary of the Company), person; (ii) adjustissue, split, combine or reclassify or otherwise amend the terms of its capital stock, (iii) repurchase, redeem, purchase, acquire, encumbersell, pledge, dispose of or otherwise transferencumber, directly or indirectlyauthorize or propose the issuance, sale, pledge, disposition or encumbrance of, any shares of, or securities convertible or exchangeable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its sharescapital stock or subdivide or in any way reclassify any shares of its capital stock or change or agree to change in any manner the rights of its outstanding capital stock; (iii) except as may be required by agreements or arrangements identified in the Disclosure Schedule, interestsgrant any severance or termination pay to, rights to purchaseor enter into, warrantsextend or amend any employment, optionsconsulting, participations severance or other equivalents compensation agreement with, or otherwise increase the compensation or benefits provided to any of its directors, officers or interests other employees whose annual base salary is in (however designated) its capital stock, excess of $100,000; (iv) other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance of the Rights and the Common Stock issuable upon the exercise thereof), (v) make any amendments to its organizational documents, (vi) sell, lease lease, license, mortgage or otherwise encumber or subject to any lien or otherwise dispose of any properties or assets material to the Business having a material amount fair market value in excess of assets $1 million individually or securities, including by merger, consolidation, asset sale or other business combination$10 million in the aggregate, other than (A) sales made in the ordinary course of business consistent with past practice or (B) sales of obsolete or other assets not presently utilized in the Business; (v) implement any change in its accounting principles, practices or methods, other than as may be required by GAAP or any Governmental Authority and other than as may be necessary or advisable in connection with the transactions contemplated hereby; (vi) make, change or revoke any Tax election or make any agreement or settlement regarding Taxes of any PEPL Company with any Tax authority, if such action would affect Acquiror or any of its Affiliates (including any PEPL Company) for taxable periods commencing after the Closing Date; (vii) (a) declare, set aside or pay any dividend or other distribution payable other than in Cash Equivalents, with respect to any shares of any class or series of capital stock of the PEPL Companies; (b) split, combine or reclassify any shares of any class or series of capital stock of the PEPL Companies; or (c) redeem, purchase or otherwise acquire directly or indirectly any shares of any class or series of capital stock of the PEPL Companies, or any instrument or security which consists of or includes a right to acquire such shares; (viii) organize any new Subsidiary or acquire any capital stock of, or equity or ownership interest in, any other Person; (ix) modify, amend or terminate any Material Contract or waive, release or assign any material rights or claims under a Material Contract, except in the ordinary course of business and consistent with past practice; (x) (A) incur or assume any long-term debt, or except in the ordinary course of business consistent with past practice, incur or assume short-term indebtedness (other than intercompany indebtedness) exceeding $5 million in the aggregate from the date hereof until the Closing; (viiB) make modify the terms of any indebtedness or other liability, other than modifications of short-term debt in the ordinary and usual course of business and consistent with past practice; (C) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of any other Person, except as described in Section 5.1(a)(x) of the Disclosure Schedule; (D) enter into any material acquisitionscommitment or transaction (including, by purchase but not limited to, any material capital expenditure or other acquisition purchase, sale or lease of shares material assets or other equity interestsreal estate); or (E) dispose of or permit to lapse any rights to any material intellectual property used or useful in the Business; (xi) permit any insurance policy naming it as a beneficiary or a loss payable payee to be canceled or terminated, except policies providing coverage for losses not in excess of $1 million; (xii) enter into any contract or by merger, consolidation or other business combination, or material transaction relating to the purchase of assets material to the PEPL Companies, taken as a whole, other than in the ordinary course of business consistent with past practices; (xiii) pay, repurchase, discharge or satisfy any property of its claims, liabilities or assetsobligations (absolute, to accrued, asserted or from any Person (except in respect of the Full Circle Capital Corporation transactionunasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice; (viiixiv) except as set forth in Section 2.3, adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganizationreorganization of any PEPL Company; (xv) take any action that would or is reasonably likely to materially impair the ability of the Sellers to consummate the Closing in accordance with the terms hereof or materially delay such consummation; and (xvi) authorize any of, or (ix) commit or agree or commit to do take any of the foregoing. For the avoidance of doubtof, the foregoing shall not restrict the Company from engaging actions referred to in discussions with a third party with respect to a Superior Transaction or terminating this Agreement to enter into a definitive agreement to effect a Superior Transaction paragraphs (provided that prior to or concurrently with such termination the Company pays the Termination Fee per Section ‎8.4(b)).i) through (xv) above. 5.2

Conduct of the Business. Prior SRI and each Subsidiary shall observe each term set forth in this Section 5.01 and agrees that, from the date hereof until the Effective Time, unless otherwise consented to the earlier by Ringer in writing: (a) The business of the Closing SRI and the termination of this Agreement (the “Pre-Closing Period”), the Company each Subsidiary shall notbe conducted only in, and neither SRI nor any Subsidiary shall cause each of its Subsidiaries not to, take any actions outside of action except in, the ordinary course of SRI's or such Subsidiary's business. During the Pre, on an arm's-Closing Periodlength basis and in accordance in all material respects with all applicable laws, except as contemplated by this Agreementrules and regulations and SRI's or such Subsidiary's past custom and practice; (b) Neither SRI nor any Subsidiary shall, as approved by the full board of directors directly or indirectly, do or permit to occur any of the Company (the “Board”) prior to the taking of such action or with the prior written consent of Xxxxxx Investing LLC on behalf of all of the Investors, the Company shall not, and shall cause each of its Subsidiaries not tofollowing: (i) declare issue or pay sell any dividend additional shares of capital stock, or distribution on its shares, interests, rights to purchaseany options, warrants, optionsconversion privileges or rights of any kind to acquire any shares of, participations or other equivalents of or interests in (however designated) stock (except for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), (ii) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, (iiiii) repurchase, redeem, purchase, acquire, encumbersell, pledge, dispose of or otherwise transfer, directly or indirectly, encumber any of its sharesassets, interestsexcept in the ordinary course of business; (iii) amend or propose to amend its articles of incorporation or bylaws; (iv) split, rights to purchase, warrants, options, participations combine or other equivalents reclassify any outstanding shares of or interests in (however designated) its capital stock, (iv) other than Excluded Issuancesor declare, issue, grant, deliver set aside or sell pay any shares, interests, rights to purchase, warrants, options, participations dividend or other equivalents of distribution payable in cash, stock, property or interests in (however designated) its capital stock (other than otherwise with respect to the issuance shares of the Rights and the Common Stock issuable upon the exercise thereof), capital stock; (v) make redeem, purchase or acquire or offer to acquire any amendments to its organizational documents, shares of capital stock or other securities; (vi) sell, lease or otherwise dispose of a material amount of assets or securities, including acquire (by merger, exchange, consolidation, asset sale acquisition of stock or assets or otherwise) any corporation, partnership, joint venture or other business combination, other than sales organization or division or material assets thereof; 24 25 (vii) incur any indebtedness for borrowed money or issue any debt securities except the borrowing of assets working capital in the ordinary course of business and consistent with past practice and the borrowing of money for facility expansion, the upgrading of computer and paint systems, telephone system, production equipment and tooling, in accordance with the capital spending plan previously provided to Ringer; (viii) accelerate or defer, beyond the normal collection cycle, or defer collection of manufacturers' rebates, promotional allowances and other accounts receivable; or, other than in the ordinary course of business and consistent with past practice, (ix) accelerate or defer the payment of undisputed accounts payable or other accrued expenses owed to trade creditors or other third parties having business relationships with SRI or any Subsidiary; (x) enter into or propose to enter into, or modify or propose to modify, any Lease or exercise or waive any option, or consent to any modification, act or omission by any landlord requiring tenant's consent under any Lease; (xi) enter into or propose to enter into or modify or propose to modify any agreement, arrangement or understanding with respect to any of the matters set forth in this Section 5.01(b); (xii) purchase inventories or supplies for its business; (xiii) sell, lease, license or otherwise dispose of any assets or properties; (xiv) accelerate or defer the construction of improvements at any of the locations of its business; or (xv) accelerate or defer the purchase of fixtures, equipment, leasehold improvements, vehicles, other items of machinery and equipment and other capital expenditures; (c) Except as contemplated herein, neither SRI nor any Subsidiary shall, directly or indirectly, (i) enter into or modify any employment, severance or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officers or directors or consultants; or (ii) in the case of employees, officers or consultants who earn in excess of $50,000 per year, take any action with respect to the grant of any bonuses, salary increases, severance or termination pay or with respect to any increase of benefits payable in effect on the date hereof other than in the ordinary course of business and consistent with past practice; (viid) make Except as contemplated herein, neither SRI nor any material acquisitionsSubsidiary shall adopt or amend any bonus, by purchase profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other acquisition employee benefit plan, trust, fund or group arrangement for the benefit or welfare of shares any employees or any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other equity interestsemployee benefit plan, agreement, trust, fund or by merger, consolidation arrangements for the benefit or other business combination, or material purchase welfare of any property director; (e) Neither SRI nor any Subsidiary shall cancel or assets, to terminate its current insurance policies or from any Person (except in respect of the Full Circle Capital Corporation transaction), (viii) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, or (ix) agree or commit to do cause any of the foregoing. For coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the avoidance coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect; (f) SRI and each Subsidiary shall (i) use its best efforts to preserve intact its business organization and goodwill, keep available the services of doubtits officers and employees as a group and maintain satisfactory relationships with suppliers, distributors, customers and others with which it has business relationships; (ii) confer on a regular and frequent basis with representatives of Ringer to report operational matters and the foregoing shall general status of ongoing operations; (iii) not restrict intentionally take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue at the Company from engaging Effective Time; (iv) notify Ringer of any emergency or other change in discussions with a the normal course of its business or in the operation of its properties and of any governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated) if such emergency, change, complaint, investigation or hearing would be material, individually or in the aggregate, to the business, operations or financial condition of SRI or any Subsidiary or to SRI's, Ringer's or Merger Subsidiary's ability to consummate the transactions contemplated by this Agreement; and (v) promptly notify Ringer in writing if SRI shall discover that any representation or warranty made by it in this Agreement was when made, or has subsequently become, untrue in any respect; (g) Except as set forth in the Disclosure Schedule, SRI and each Subsidiary shall (i) file any Tax returns, elections or information statements with respect to a Superior Transaction any liabilities for Taxes of SRI or terminating this Agreement any Subsidiary or other matters relating to enter Taxes of SRI or any Subsidiary which pursuant to applicable law must be filed (after taking into a definitive agreement to effect a Superior Transaction (provided that account any properly applicable extensions of the due date of such returns, elections or 25 26 information statements) prior to the Closing Date; provided, however, that neither SRI nor any Subsidiary shall file any such Tax returns, or concurrently other returns, elections, claims for refund or information statements with respect to any liabilities for Taxes (other than federal, state or local sales, use, withholding or employment tax returns or statements for any Tax period, or consent to any adjustment or otherwise compromise or settle any matters with respect to Taxes, without prior consultation with and consent of Ringer (which consent shall not be unreasonably withheld); (ii) promptly upon filing provide copies of any such termination Tax returns, elections or information statements to Ringer; (iii) make or rescind any such Tax elections or other discretionary positions with respect to Taxes taken by or affecting SRI only upon prior consultation with and consent of Ringer (which consent shall not be unreasonably withheld); (iv) not amend any Return; (v) not change the Company pays rate or policy for any accrual or reserve for Taxes or otherwise accrue therefor in a manner inconsistent with its practices for previous periods as reflected in the Termination Fee per Latest Financial Statements; and (vi) not change any of its methods of reporting income or deductions for federal income Tax purposes from those employed in the preparation of the federal income Tax returns for the taxable year ended September 30, 1996, except for changes required by changes in law; and (h) SRI shall not perform any act referenced by (or omit to perform any act which omission is referenced by) the terms of Section ‎8.4(b)).3.11, except in the ordinary course of business and consistent with past practice or as stated in the Disclosure Schedule under the caption referencing such Section. 5.02

Conduct of the Business. Prior Except as required pursuant to this Agreement, the earlier of Warrants or the Closing Investment Agreement, or any other agreements contemplated thereby and entered into by the Company and the termination Investor and/or one or more of this Agreement its Affiliates in connection with the Investment, or as otherwise agreed in writing by the Investor (which agreement shall not be unreasonably withheld or delayed), until the “Pre-Closing Period”)Investor no longer holds a Qualifying Ownership Interest, the Company shall not, and shall cause each : amend the Certificate of its Subsidiaries not to, take any actions outside of Incorporation or the ordinary course of business. During the Pre-Closing Period, except as contemplated by this Agreement, as approved by the full board of directors Bylaws of the Company (the “Board”) prior in a manner adverse to the taking Investor; redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any shares of such action any class of capital stock or with the prior written consent of Xxxxxx Investing LLC on behalf of all other equity securities of the InvestorsCompany, the Company shall not, and shall cause each of its Subsidiaries not to: except (i) declare for the acceptance of previously owned shares of Common Stock in payment of all or a portion of the exercise price delivered by one or more optionees in the course of exercising all or portions of any option to purchase shares of Common Stock that were issued pursuant to any stock option, stock appreciation rights or other equity incentive plans maintained or assumed by the Company and/or the Company Subsidiaries ("Company Options"), (ii) for the Exhibit H withholding of otherwise deliverable shares of Common Stock in the course of effecting one or more optionees' tax withholding elections pursuant to the exercise of all or portions of any Company Options, (iii) for the repurchase of any shares of Common Stock subject to a repurchase right for terminated employees of the Company or any of the Company Subsidiaries, or (iv) pursuant to any share repurchase program maintained by the Company that is in effect as of the date hereof; with respect to each class of the Company's capital stock, declare, set aside or pay any dividend or other distribution on its shares, interests, rights to purchase, warrants, options, participations payable in cash or other equivalents of property (or interests in (however designated) stock (except for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), (ii) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, (iii) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any of its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock, (iv) other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance of the Rights and the Common Stock issuable upon the exercise combination thereof), (v) make any amendments to its organizational documents, (vi) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales stock of assets the same class that receives such dividend or distribution; except in the ordinary course of business consistent with past practice; , acquire (vii) make any material acquisitionswhether pursuant to merger, by stock or asset purchase or otherwise), in one transaction or any series of related transactions, substantially all of the outstanding equity interests of any person or all or substantially all of the assets of any person; enter into or adopt any transaction or series of transactions (other acquisition than the transactions contemplated by the Investment Agreement) involving (i) any merger, consolidation, recapitalization, liquidation or other direct or indirect business combination involving the Company and any person, other than the Investor or any Affiliate under common control with the Investor's ultimate parent entity, pursuant to which the stockholders of the Company immediately preceding such transaction or series of transactions would hold less than 50% of the equity or voting securities of the surviving or resulting entity of such transaction, (ii) any tender or exchange offer that if consummated would result in any person or "group" (as defined in Section 13(d) of the Exchange Act), other than the Investor or any Affiliate under common control with the Investor's ultimate parent entity, beneficially owning shares of any class of capital stock or other equity interestssecurities of the Company representing more than more than 50% (by ownership or voting power) of the outstanding shares of any class of capital stock of the Company, (iii) any transfer, lease, license, sale, mortgage, pledge, disposition, or by mergerencumbrance of assets that constitute all or substantially all of the assets of the Company and the Company Subsidiaries, consolidation taken as a whole (other than pledges and encumbrances to lenders in connection with a bona fide financing or other business combinationcredit agreement) to, or material purchase of in favor of, any property person other than the Investor or assets, to or from any Person (except in respect of Affiliate under common control with the Full Circle Capital Corporation transaction)Investor's ultimate parent entity, (viiiiv) adopt a plan of complete or partial liquidation or resolutions providing for a the voluntary complete or partial liquidation, dissolution, restructuring, recapitalization dissolution or other reorganizationwinding up of the Company, or (ixv) agree any combination of the foregoing; or commit enter into any agreement, contract, commitment or arrangement to do any of the foregoing. For the avoidance of doubt, the foregoing shall not restrict the Company from engaging in discussions with a third party with respect to a Superior Transaction or terminating this Agreement to enter into a definitive agreement to effect a Superior Transaction (provided that prior to or concurrently with such termination the Company pays the Termination Fee per Section ‎8.4(b)).

Conduct of the Business. Prior to the earlier of the Preferred Stock Closing and the termination of this Agreement pursuant to Section 9.1 (the “Pre-Closing Period”), the Company shall not, and shall cause each of its Subsidiaries not to, take any actions outside of the ordinary course of businessbusiness consistent with past practice that are material to the Company and its Subsidiaries, taken as a whole, without the prior written consent of the Investor (such consent not to be unreasonably withheld, conditioned or delayed). During the Pre-Closing Period, (a) except as contemplated by this AgreementAgreement or the Ancillary Agreements, as approved required by the full board of directors of the Company (the “Board”) prior to the taking of such action Law or with the prior written consent of Xxxxxx Investing LLC as set forth on behalf of all of the InvestorsSchedule 7.1, the Company shall not, and shall cause each of its Subsidiaries not to: to (i) declare or pay any dividend or distribution on its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock Capital Stock (except for the Warrants and any dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), ; (ii) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, the Capital Stock of the Company or any debt securities convertible or exchangeable into Capital Stock of the Company; (iii) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any of the Capital Stock of it or any of its sharesSubsidiaries or any debt securities convertible or exchangeable into Capital Stock of it or any of its Subsidiaries, interestsother than repurchases, rights to purchaseredemptions, warrantspurchases or acquisitions of any such Capital Stock by, optionsor transfers or dispositions of any such Capital Stock to, participations the Company or other equivalents any of or interests in (however designated) its capital stock, wholly owned Subsidiaries; (iv) other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations Capital Stock of it or other equivalents any of or interests in (however designated) its capital stock Subsidiaries (other than with respect to the issuance of the Rights and Warrants, the Common Stock issuable upon exercise thereof and the exercise thereof)Preferred Shares or issuances pursuant to Excluded Issuances) or any debt securities convertible or exchangeable into Capital Stock of it or any of its Subsidiaries, other than issuances, grants, deliveries or sales of such Capital Stock to the Company or any of its wholly owned Subsidiaries; (v) make any amendments to its their organizational documents, documents (other than the filing of the Certificate of Designations with the Secretary of State of the State of Delaware); (vi) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets in the ordinary course of business consistent with past practice; (vii) make any material acquisitions, acquisitions of any property or assets by purchase or other acquisition of shares or other equity interests, or by merger, consolidation or other business combination, from or material purchase of any property or assets, to or from with any Person (except in respect for acquisitions made by the Company or any direct or indirect wholly owned Subsidiary of the Full Circle Capital Corporation transactionCompany from the Company or any other direct or indirect wholly owned Subsidiary of the Company), ; (viii) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, ; or (ix) agree or commit to do any of the foregoing. For the avoidance of doubt, the foregoing shall not restrict and (b) if the Company from engaging in discussions with a third party takes any action (other than with respect to a Superior Transaction or terminating this Agreement the issuance of the Warrants, the Common Stock issuable upon the exercise thereof and the Preferred Shares) that would require any anti-dilution adjustments to enter into a definitive agreement to be made under the Certificate of Designations as if it were in effect a Superior Transaction (provided that prior to or concurrently with at the time of such termination action, the Company pays shall make such appropriate adjustments (the Termination Fee per Section ‎8.4(b)“Adjustments”).

Conduct of the Business. Prior From and after the date hereof until the Closing, Seller shall use its commercially reasonable efforts to cause the Company and its Subsidiaries to conduct their respective businesses only in the Ordinary Course of Business. Subject to the earlier foregoing, other than (1) as otherwise contemplated in this Agreement, including Section 5.2(a), (2) for actions approved by Purchaser in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (3) as required by applicable Law, and (4) as set forth in Section 5.1 of the Closing Seller Disclosure Schedule, from and after the termination of this Agreement (the “Pre-Closing Period”)date hereof, the Company shall not, and Seller shall cause each of the Company and its Subsidiaries not to, to (A) take any actions outside action that would cause any of the ordinary course changes, events or conditions described in Section 3.9 to occur or (B) accumulate or stockpile coal inventory in excess of business. During the Pre-Closing Period, except as contemplated by this Agreement, as approved by the full board of directors an amount reasonably anticipated to be necessary to satisfy obligations under written coal supply agreements of the Company (and its Subsidiaries; provided, however, that notwithstanding the “Board”) prior to foregoing the taking of such action or Company and its Subsidiaries may do the following solely in connection with the prior written consent of Xxxxxx Investing LLC on behalf of all of the Investors, the Company shall not, and shall cause each of its Subsidiaries not toConversions: (i) declare amend its charter or pay any dividend or distribution on its shares, interests, rights to purchase, warrants, options, participations bylaws or other equivalents of or interests in (however designated) stock (except for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), organizational documents; (ii) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, (iii) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any of its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock, (iv) other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance of the Rights and the Common Stock issuable upon the exercise thereof), (v) make any amendments to its organizational documents, (vi) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets in the ordinary course of business consistent with past practice; (vii) make any material acquisitions, by purchase or other acquisition of shares or other equity interests, or by merger, consolidation or other business combination, or material purchase of any property or assets, to or from any Person (except in respect of the Full Circle Capital Corporation transaction), (viii) adopt a plan or agreement of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization, or otherwise effect any such liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization; (ixiii) agree (1) issue, sell, transfer pledge, dispose of or commit suffer any Encumbrance on any shares of its capital stock (or other equity interests), (2) grant any options, warrants or other rights to do purchase or obtain any shares of the foregoing. For the avoidance its capital stock (or other equity interests), (3) split, combine, subdivide or reclassify any shares of doubtits capital stock (or other equity interests), the foregoing shall not restrict the Company from engaging (4) declare, set aside or pay any dividend or other distribution, other than any dividend or distribution payable in discussions with a third party cash, with respect to a Superior Transaction any shares of its capital stock (or terminating this Agreement to enter into a definitive agreement to effect a Superior Transaction other equity interests) or (provided that prior to 5) redeem, purchase or concurrently with such termination the Company pays the Termination Fee per Section ‎8.4(b)otherwise acquire any shares of its capital stock (or other equity interests).

Conduct of the Business. Prior to the earlier of the Closing and the termination of this Agreement pursuant to Section 6.1 (the “Pre-Closing Period”), the Company shall not, and shall cause each of its Subsidiaries not to, take any actions outside of the ordinary course of businessbusiness consistent with past practice, without the prior written consent of the Investors or prior approval by the full Board (and not a committee of the Board). During the Pre-Closing Period, (i) except as contemplated by this Agreement, as approved by the full board of directors Board (and not a committee of the Company (the “Board”) prior to the taking of such action or with the prior written consent of Xxxxxx Investing LLC on behalf of all of the Investors, the Company shall not, and shall cause each of its Subsidiaries not to: (iA) declare or pay any dividend or distribution on its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock (except for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), (iiB) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, (iiiC) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any of its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock, (ivD) other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance of the Rights and the Common Stock issuable upon the exercise thereof), (vE) make any amendments to its organizational documents, (viF) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets in the ordinary course of business consistent with past practice; (viiG) make any material acquisitions, by purchase or other acquisition of shares or other equity interests, or by merger, consolidation or other business combination, or material purchase of any property or assets, to or from any Person (except in respect for acquisitions made by the Company or any direct or indirect wholly owned Subsidiary of the Full Circle Capital Corporation transactionCompany from the Company or any other direct or indirect wholly owned Subsidiary of the Company), (viiiH) make any prepayments under the Term Loan Facility, (I) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, or (ixJ) agree or commit to do any of the foregoing. For the avoidance of doubt, the foregoing shall not restrict the Company from engaging in discussions with a third party with respect to a Superior Transaction or terminating this Agreement to enter into a definitive agreement to effect a Superior Transaction (provided that prior to or concurrently with such termination the Company pays the Termination Fee per Section ‎8.4(b))Transaction.

Conduct of the Business. Prior to the earlier of the Closing and the termination of this Agreement pursuant to Section 6.1 (the “Pre-Closing Period”), the Company shall not, and shall cause each of its Subsidiaries not to, take any actions outside of the ordinary course of businessbusiness consistent with past practice, without the prior written consent of the Investors or prior approval by the full Board (and not a committee of the Board). During the Pre-Closing Period, (i) except as contemplated by this Agreement, as approved by the full board of directors Board (and not a committee of the Company (the “Board”) prior to the taking of such action or with the prior written consent of Xxxxxx Investing LLC on behalf of all of the Investors, the Company shall not, and shall cause each of its Subsidiaries not to: (iA) declare or pay any dividend or distribution on its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock (except for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), (iiB) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, (iiiC) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any of its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock, (ivD) other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance of the Rights and the Common Stock issuable upon the exercise thereof), (vE) make any amendments to its organizational documents, (viF) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets in the ordinary course of business consistent with past practice; (viiG) make any material acquisitions, by purchase or other acquisition of shares or other equity interests, or by merger, consolidation or other business combination, or material purchase of any property or assets, to or from any Person (except in respect for acquisitions made by the Company or any direct or indirect wholly owned Subsidiary of the Full Circle Capital Corporation transactionCompany from the Company or any other direct or indirect wholly owned Subsidiary of the Company), (viiiH) make any prepayments under the Term Loan Facility, (I) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, or (ixJ) agree or commit to do any of the foregoing. For the avoidance of doubt, the foregoing shall not restrict the Company from engaging in discussions with a third party with respect to a Superior Transaction or terminating this Agreement to enter into a definitive agreement to effect a Superior Transaction (provided that prior to or concurrently with such termination the Company pays the Termination Fee per to the Investors in accordance with Section ‎8.4(b7.8(b)).

Conduct of the Business. Prior to the earlier of the Closing and the termination of this Agreement pursuant to Section 8.1 (the “Pre-Closing Period”), the Company shall not, and shall cause each of its Subsidiaries not to, take any actions outside of the ordinary course of businessbusiness consistent with past practice that are material to the Company and its Subsidiaries, taken as a whole, without the prior written consent of the Investor (such consent not to be unreasonably withheld, conditioned or delayed). During the Pre-Closing Period, (i) except as contemplated by this AgreementAgreement or the Ancillary Agreements, as approved required by the full board of directors of the Company (the “Board”) prior to the taking of such action Law or with the prior written consent of Xxxxxx Investing LLC as set forth on behalf of all of the InvestorsSchedule 6.1, the Company shall not, and shall cause each of its Subsidiaries not to: to (iA) declare or pay any dividend or distribution on its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock (except for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), (iiB) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, (iiiC) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any of its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock, (ivD) other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance of the Rights and the Common Stock (and, if applicable, Preferred Stock) issuable upon the exercise thereof), (vE) make any amendments to its their organizational documents, (viF) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets in the ordinary course of business consistent with past practice; (viiG) make any material acquisitions, by purchase or other acquisition of shares or other equity interests, or by merger, consolidation or other business combination, or material purchase of any property or assets, to or from any Person (except in respect for acquisitions made by the Company or any direct or indirect wholly owned Subsidiary of the Full Circle Capital Corporation transactionCompany from the Company or any other direct or indirect wholly owned Subsidiary of the Company), (viiiH) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, or (ixI) agree or commit to do any of the foregoing. For the avoidance of doubt, the foregoing shall not restrict and (ii) if the Company from engaging in discussions with a third party takes any action (other than with respect to a Superior Transaction or terminating the issuance of the Rights and the Common Stock issuable upon the exercise thereof) that would require any anti-dilution adjustments to be made under the Certificate of Designation as if issued on the date of this Agreement to enter into a definitive agreement to effect a Superior Transaction (provided that prior to or concurrently with such termination Agreement, the Company pays shall make such appropriate adjustment (the Termination Fee per Section ‎8.4(b)“Adjustments”).

Conduct of the Business. Prior to the earlier of the Closing and the termination of this Agreement pursuant to Section 6.1 (the “Pre-Closing Period”), the Company shall not, and shall cause each of its Subsidiaries not to, take any actions outside of the ordinary course of businessbusiness consistent with past practice, without the prior written consent of the Investor or prior approval by the full Board (and not a committee of the Board). During the Pre-Closing Period, (i) except as contemplated by this Agreement, as approved by the full board of directors Board (and not a committee of the Company (the “Board”) prior to the taking of such action or with the prior written consent of Xxxxxx Investing LLC on behalf of all of the InvestorsInvestor, the Company shall not, and shall cause each of its Subsidiaries not to: (iA) declare or pay any dividend or distribution on its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock (except for dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), (iiB) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, (iiiC) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any of its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock, (ivD) other than Excluded Issuances, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) its capital stock (other than with respect to the issuance of the Rights and the Common Stock issuable upon the exercise thereof), (vE) make any amendments to its organizational documents, (viF) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets in the ordinary course of business consistent with past practice; (viiG) make any material acquisitions, by purchase or other acquisition of shares or other equity interests, or by merger, consolidation or other business combination, or material purchase of any property or assets, to or from any Person (except in respect for acquisitions made by the Company or any direct or indirect wholly owned Subsidiary of the Full Circle Capital Corporation transactionCompany from the Company or any other direct or indirect wholly owned Subsidiary of the Company), (viiiH) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, or (ixI) agree or commit to do any of the foregoing. For the avoidance of doubt, the foregoing shall not restrict the Company from engaging in discussions with a third party with respect to a Superior Transaction or terminating this Agreement to enter into a definitive agreement to effect a Superior Transaction (provided that prior to or concurrently with such termination the Company pays the Termination Fee per Section ‎8.4(b))Transaction.

Conduct of the Business. Prior to the earlier of the Backstop Closing and the termination of this Agreement pursuant to Section 9.1 (the “Pre-Closing Period”), the Company shall not, and shall cause each of its Subsidiaries not to, take any actions outside of the ordinary course of businessbusiness consistent with past practice that are material to the Company and its Subsidiaries, taken as a whole, without the prior written consent of Investor, which consent shall not be unreasonably withheld or delayed. During the Pre-Closing Period, (a) except as contemplated by this AgreementAgreement or the Ancillary Agreements, as approved required by the full board of directors of the Company (the “Board”) prior to the taking of such action Law or with the prior written consent of Xxxxxx Investing LLC as set forth on behalf of all of the InvestorsSchedule 6.1, the Company shall not, and shall cause each of its Subsidiaries not to: to (i) declare or pay any dividend or distribution on its shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock Capital Stock (except for the Rights and any dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company), ; (ii) adjust, split, combine or reclassify or otherwise amend the terms of its capital stock, the Capital Stock of the Company or any debt securities convertible or exchangeable into Capital Stock of the Company; (iii) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any of the Capital Stock of it or any of its sharesSubsidiaries or any debt securities convertible or exchangeable into Capital Stock of it or any of its Subsidiaries, interestsother than repurchases, rights to purchaseredemptions, warrantspurchases or acquisitions of any such Capital Stock by, optionsor transfers or dispositions of any such Capital Stock to, participations the Company or other equivalents any of or interests in (however designated) its capital stock, wholly owned Subsidiaries; (iv) other than Excluded Issuancesunless required in connection with the exercise or conversion of any options or rights under the terms of any Stock Plan or agreement ancillary thereto, issue, grant, deliver or sell any shares, interests, rights to purchase, warrants, options, participations Capital Stock of it or other equivalents any of or interests in (however designated) its capital stock Subsidiaries (other than with respect to the issuance of the Rights and or the Common Preferred Stock issuable upon in the exercise thereof)Rights Offering) or any options, warrants or other equity or debt securities convertible or exchangeable into Capital Stock of it or any of its Subsidiaries; (v) make any amendments to their organizational documents (other than the filing of the Certificate of Designations with the Secretary of State of the State of Delaware and any other amendments or filings necessary for the Company to perform its organizational documents, obligations hereunder); (vi) sell, lease or otherwise dispose of a material amount of assets or securities, including by merger, consolidation, asset sale or other business combination, other than sales of assets in the ordinary course of business consistent with past practice; (vii) make any material acquisitions, acquisitions of any property or assets by purchase or other acquisition of shares or other equity interests, or by merger, consolidation or other business combination, from or material purchase of any property or assets, to or from with any Person (except in respect for acquisitions made by the Company or any direct or indirect wholly owned Subsidiary of the Full Circle Capital Corporation transactionCompany from the Company or any other direct or indirect wholly owned Subsidiary of the Company), ; (viii) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, ; or (ix) agree or commit to do any of the foregoing. For the avoidance of doubt, the foregoing shall not restrict and (b) if the Company from engaging in discussions with a third party takes any action (other than with respect to a Superior Transaction the issuance of the Rights or terminating this Agreement the Preferred Stock issuable in the Rights Offering) that would require any anti-dilution adjustments to enter into a definitive agreement to be made under the Certificate of Designations as if it were in effect a Superior Transaction (provided that prior to or concurrently with at the time of such termination action, the Company pays shall make such appropriate adjustments (the Termination Fee per Section ‎8.4(b)“Adjustments”).