Common use of Conduct and Preservation of Business Clause in Contracts

Conduct and Preservation of Business. Except as expressly provided in this Agreement, during the period from the date hereof to the Closing, Seller and Oxford (i) shall conduct the Business only in the ordinary course consistent with past practice and in compliance with all Applicable Laws; (ii) shall use their reasonable best efforts to preserve, maintain, and protect the Assets; and (iii) shall use their best efforts to preserve intact the business organization of the Business, to keep available the services of the employees of the Business, and to maintain existing relationships with licensors, licensees, suppliers, contractors, distributors, customers, and others having business relationships with the Business. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Seller and Oxford shall not, without the prior written consent of Buyer: (a) transfer or sell its equity interests in Seller or make any change in the ongoing operations of the Assets or the Business; (b) mortgage or pledge any of the Assets or create or suffer to exist any Encumbrance thereupon; (c) (i) enter into, adopt, or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any employee of the Business; (ii) increase in any manner the compensation or fringe benefits of any employee of the Business; or (iii) pay to any employee of the Business any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof; (d) sell, lease, transfer, or otherwise dispose of, directly or indirectly, any of the Assets; (e) pay, discharge, or satisfy any claims, liabilities, or obligations relating to the Business (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction in the ordinary course of the Business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Financial Statements; (f) enter into any lease, contract, agreement, commitment, arrangement, or transaction relating to the Business; (g) amend, modify, or change any existing lease, contract, or agreement relating to the Business; (h) waive, release, grant, or transfer any rights of value relating to the Business; (i) delay payment of any account payable or other liability of Seller relating to the Business beyond its due date or the date when such liability would have been paid in the ordinary course of the Business consistent with past practice; (j) permit any current insurance or reinsurance policies to be cancelled or terminated or any of the coverages thereunder to lapse if such policy covers Assets or insures risks, contingencies, or liabilities of the Business; (k) change any of the accounting principles or practices used by it relating to the Business; (l) take any action which would or might make any of the representations or warranties of Seller or Oxford contained in this Agreement untrue or inaccurate as of any time from the date of this Agreement to the Closing or would or might result in any of the conditions set forth in this Agreement not being satisfied; or (m) authorize or propose, or agree in writing or otherwise to take, any of the actions described in this Section.

Conduct and Preservation of Business. Except as expressly provided in this AgreementEach of the Companies will conduct its business diligently, during the period from the date hereof to the Closing, Seller and Oxford (i) shall conduct the Business only in the ordinary course and consistent with past practice and in compliance with exclusively through the Companies. Each of the Companies will use all Applicable Laws; reasonable efforts (iiwithout making any commitments on behalf of Purchaser) shall use their reasonable best efforts to preserve, maintain, and protect the Assets; and (iii) shall use their best efforts to preserve intact the its business organization of the Businessintact, to keep available to Purchaser the services of the present officers and employees of the BusinessCompanies, to maintain in effect all existing qualifications, franchises, licenses, permits, consents, authorizations and registrations of the Companies with respect to their businesses, and to maintain existing preserve for Purchaser the present relationships of the Companies with licensors, licensees, material suppliers, contractors, distributors, customers, customers and others having business relationships relations with the BusinessCompanies. Each of the Companies will conduct its business and operations in a manner consistent with the conduct of its business operations prior to the date hereof. Each of the Companies shall continue all practices, policies, procedures and operations relating to its business in substantially the same manner as heretofore conducted. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Seller and Oxford shall not, without Agreement or with the prior written consent of BuyerPurchaser, from the date hereof to the Closing Date, none of the Companies will: (a) transfer incur any obligations or sell its equity interests in Seller or make any change in the ongoing operations of the Assets or the Business; liabilities (b) mortgage or pledge any of the Assets or create or suffer to exist any Encumbrance thereupon; (c) (i) enter intowhether absolute, adoptaccrued, or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any employee of the Business; (ii) increase in any manner the compensation or fringe benefits of any employee of the Business; or (iii) pay to any employee of the Business any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof; (d) sell, lease, transfer, contingent or otherwise dispose of, directly or indirectly, any of the Assets; (e) pay, discharge, or satisfy any claims, liabilities, or obligations relating to the Business (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted due or unassertedto become due), other than the payment, discharge, except obligations or satisfaction liabilities incurred in the ordinary course of the Business business and consistent with past practice, or permit any change in accordance with their termsany assumptions underlying or methods of calculating any bad debt, contingency or other reserves; (b) permit or allow any of liabilities reflected its properties or reserved against assets (whether real, personal or mixed, tangible or intangible) to be mortgaged, pledged or subjected to any lien or encumbrance, except liens for taxes not yet delinquent; (c) cancel or release any debts or claims, or waive any rights of substantial value or sell, transfer or convey any of its properties or assets (whether real, personal or mixed, tangible or intangible), except in the Financial Statementsordinary course of business and consistent with past practice; (d) dispose of or permit to lapse any license, permit or other form of material authorization; or dispose of or disclose to any person, other than employees, consultants and representatives bound by confidentiality obligations or agreements, any trade secret, formula, process or know-how; (e) except with the prior consent of the Purchaser, grant any increase in the compensation of any officer or employee (including, without limitation, any increase pursuant to any bonus (other than year-end bonuses consistent with past practices which each of the Companies shall timely pay), pension, profit-sharing or other plan or commitment); make any payment under any existing Employee Plan not required under the terms thereof; institute or adopt any new Employee Plan; modify, amend or terminate any existing Employee Plan or extend the term or alter the terms of any employment agreement; (f) enter into make any leasecapital expenditures or commitments in excess of One Hundred Thousand ($100,000) Dollars in the aggregate for replacements or additions to property, contract, agreement, commitment, arrangement, plant or transaction relating to the Businessequipment; (g) amenddeclare, modifypay or make, or change set aside for payment or making, any existing lease, contractdividend or other distribution in respect of its capital stock or other securities, or agreement relating to the Businessdirectly or indirectly redeem, purchase or otherwise acquire any of its capital stock or other securities; (h) waiveissue, release, grantauthorize or propose the issuance of any shares of its capital stock or securities convertible into, or transfer rights, warrants or options to acquire, any rights of value relating to the Businesssuch shares or other convertible securities; (i) delay or defer payment of any account accounts payable or other liability obligations of Seller relating to the Business beyond its due date or the date when such liability would have been paid in the ordinary course any of the Business consistent Companies or accelerate collection of accounts receivable or other obligations due the Companies in a manner inconsistent with past practice; (j) permit pay, loan or advance any current insurance amount to or reinsurance policies to be cancelled in respect of, or terminated sell, transfer or lease any properties or assets (whether real, personal or mixed, tangible or intangible) to, or enter into any agreement, arrangement or transaction with, the Shareholder, any of the officers or directors of the Shareholder or any of the coverages thereunder to lapse if such policy covers Assets Companies, any Affiliate of the Shareholder, the Companies or insures risks, contingenciesany of their respective officers or directors, or liabilities any business or entity in which the Shareholder or any Affiliate of any such persons has a direct or indirect interest except that the Businessforegoing shall not be construed to prevent the Companies from transferring cash to one another or to the Shareholder or from purchasing goods or services from the Shareholder or any Affiliates in conformity with past practices; (k) change subdivide or in any way reclassify any shares of the accounting principles or practices used by it relating to the Businessits capital stock; (l) take terminate or voluntarily suffer the termination of any action Material Contract except for Material Contracts which are not Assumed Contracts and except for Material Contracts expiring in the ordinary course of business pursuant to their terms and which would not reasonably be expected to have, either individually or might make in the aggregate, a Material Adverse Effect on the Companies considered as a whole, or, in any material respect, amend or suffer the amendment of, or fail to perform all of its obligations or suffer or permit any default to exist under, any Material Contract which is also an Assumed Contract; (m) enter into or obtain any contract, lease, commitment, license, permit or authorization, except (i) contracts or commitments for the purchase of services, supplies, inventory or equipment (not to exceed Fifty Thousand ($50,000) Dollars for any one purchase contract or commitment unless authorized by Purchaser, which authorization shall not be unreasonably withheld or delayed) or the sale of products provided in each case such contract or commitment is entered into in the ordinary course of business and at rates consistent with normal and usual practices, and (ii) other contracts or commitments entered into in the ordinary course of business and consistent with past practice, provided that any such other contract or commitment (x) is terminable by the Companies on not more than ninety (90) days' notice and (y) will not require any of the representations or warranties of Seller or Oxford contained in this Agreement untrue or inaccurate as Companies to expend more than Fifty Thousand ($50,000) Dollars during the term thereof; (n) enter into any license of any time from material intellectual property, whether as licensor, licensee, grantor or grantee, except in connection with the date sale of this Agreement products in the ordinary course of business; (o) fail to take such action as may be reasonably necessary to maintain, preserve, renew and keep in full force and effect the corporate existence, qualifications and franchises of the Companies, or fail to comply with any law applicable to the Closing or would or might result in conduct of the businesses of any of the conditions set forth in this Agreement not being satisfiedCompanies; (p) amend the Certificate of Incorporation or By-Laws (or other similar charter documents) of any of the Companies; or (mq) authorize or proposeagree, or agree whether in writing or otherwise otherwise, to take, take any of the actions described action prohibited in this SectionSection 7.1.

Conduct and Preservation of Business. Except as expressly provided in this Agreement, during the period from the date hereof to the Closing, Seller Sellers and Oxford (i) shall conduct the Business only in the ordinary course consistent with past practice and in compliance with all Applicable Laws; (ii) shall use their reasonable best efforts to preserve, maintain, and protect the Assets; and (iii) shall use their best efforts to preserve intact the business organization of the Business, to keep available the services of the employees of the Business, and to maintain existing relationships with licensors, licensees, suppliers, contractors, distributors, customers, and others having business relationships with the Business. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Seller Sellers and Oxford shall not, without the prior written consent of Buyer: (a) transfer or sell its equity interests in a Seller or make any change in the ongoing operations of the Assets or the Business; (b) mortgage or pledge any of the Assets or create or suffer to exist any Encumbrance thereupon; (c) (i) enter into, adopt, or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance, or other employee benefit agreement, trust, plan, fund, or other arrangement for the benefit or welfare of any employee of the Business; (ii) increase in any manner the compensation or fringe benefits of any employee of the Business; or (iii) pay to any employee of the Business any benefit not required by any employee benefit agreement, trust, plan, fund, or other arrangement as in effect on the date hereof; (d) sell, lease, transfer, or otherwise dispose of, directly or indirectly, any of the Assets; (e) pay, discharge, or satisfy any claims, liabilities, or obligations relating to the Business (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction in the ordinary course of the Business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Financial Statements; (f) enter into any lease, contract, agreement, commitment, arrangement, or transaction relating to the Business; (g) amend, modify, or change any existing lease, contract, or agreement relating to the Business; (h) waive, release, grant, or transfer any rights of value relating to the Business; (i) delay payment of any account payable or other liability of Seller Sellers relating to the Business beyond its due date or the date when such liability would have been paid in the ordinary course of the Business consistent with past practice; (j) permit any current insurance or reinsurance policies to be cancelled or terminated or any of the coverages thereunder to lapse if such policy covers Assets or insures risks, contingencies, or liabilities of the Business; (k) change any of the accounting principles or practices used by it relating to the Business; (l) take any action which would or might make any of the representations or warranties of Seller Sellers or Oxford contained in this Agreement untrue or inaccurate as of any time from the date of this Agreement to the Closing or would or might result in any of the conditions set forth in this Agreement not being satisfied; or (m) authorize or propose, or agree in writing or otherwise to take, any of the actions described in this Section.

Conduct and Preservation of Business. (a) Except as expressly provided in this Agreement or except as contemplated by and in furtherance of the Restructuring as described in Section 7.11 or to the extent that Buyer shall otherwise consent in writing, during the period from the date hereof to the Closing, the Company shall, the Seller Parties shall cause the Company to, and the Seller Parties and the Company shall cause each Subsidiary of the Company to: (a) conduct its operations in the Ordinary Course of Business and (b) take (or refrain to take) actions affecting Cash and/or Net Working Capital in each case in the Ordinary Course of Business, including, without limitation, collecting accounts receivable and paying accounts payable and satisfying other liabilities and obligations in each case in the Ordinary Course of Business; (2) use commercially reasonable efforts consistent with past practice to maintain and to keep their properties and assets in good repair and condition, ordinary wear and tear excepted, in the Ordinary Course of Business; if there is any casualty loss or damage to any properties or assets of the Company or any Subsidiary in excess of $100,000 prior to Closing, to consult with Buyer regarding the replacement or repair of such property or asset; (3) use commercially reasonable efforts to keep in full force and effect insurance applicable to it comparable in amount and scope of coverage to that currently maintained; (4) use commercially reasonable efforts to (a) keep and maintain accurate books, records and accounts; (b) pay or accrue Taxes, assessments and other governmental charges imposed upon any of its franchises, businesses, income or assets in the Ordinary Course of Business; (c) pay Indebtedness, payables, rentals, royalties, expenses and other liabilities in the Ordinary Course of Business; and (5) use commercially reasonable effort to preserve and keep in full force and effect their corporate or other legal existence and rights and franchises. (b) Without limiting the generality of the foregoing, except as contemplated by and in furtherance of the Restructuring as described in Section 7.11, and except as otherwise expressly provided in this Agreement, during the period from the date hereof to the Closing, the Company shall not (and the Seller and Oxford (i) Parties shall conduct cause the Business only in the ordinary course consistent with past practice and in compliance with all Applicable Laws; (ii) shall use their reasonable best efforts to preserve, maintainCompany not to, and protect the Assets; Seller Parties and (iii) the Company shall use their best efforts to preserve intact the business organization cause each Subsidiary of the BusinessCompany, not to) take, consent to keep available the services or allow any of the employees of the Business, and to maintain existing relationships with licensors, licensees, suppliers, contractors, distributors, customers, and others having business relationships with the Business. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, Seller and Oxford shall not, following actions without the prior written consent of Buyer: (ai) transfer acquire (by merger, consolidation, acquisition of stock or sell its equity interests in Seller assets or make otherwise) or organize, any change corporation, limited liability company, partnership, joint venture, trust or other entity or person or any business organization or division thereof or (ii) acquire any rights, assets or properties other than in the ongoing operations Ordinary Course of the Assets or the Business; (b2) mortgage amend or pledge otherwise change the Governance Documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of the Company or its Subsidiaries; (3) sell, divest, transfer or otherwise dispose of any assets, except regular sales of oil and gas sold from out of the ground or storage tanks or other inventories and supplies in the Ordinary Course of Business; provided, that the Company may (but shall not be required to) also sell, divest, transfer or otherwise dispose of other assets in the Ordinary Course of Business not in excess in the aggregate of $100,000, or such other assets in the Ordinary Course of Business with the consent of Buyer not to be unreasonably withheld; provided, further, that the proceeds to be received from any such sale, divesture, transfer or disposition referred to in the immediately preceding proviso, shall be retained for the benefit of Buyer at Closing and shall not be counted towards the calculation of Net Working Capital or the Cash Amount); (4) lease, license, sublicense, mortgage, pledge, encumber or create, incur, assume or cause to be subjected to any Lien (other than Liens securing the Credit Facility and Permitted Encumbrances) on, any of the Assets assets of the Company or create or suffer to exist any Encumbrance thereuponits Subsidiaries, except in the Ordinary Course of Business; (c5) other than to borrow against its existing credit lines for ordinary course working capital purposes (i) incur or modify any Indebtedness or issue any debt securities or any warrants or rights to acquire any debt security, (ii) assume, guarantee or endorse or otherwise become responsible for, the obligations of any Person, (iii) enter into, adoptinto any off-balance sheet financing arrangement or any accounts receivable or payable financing arrangement, or amend (iv) make any loans, advances or terminate enter into any bonusother financing commitments, profit sharingincluding, compensationwithout limitation, severanceany financing commitments or obligations to Seller or any of its Affiliates (including NXXX) (other than the Company or its Subsidiaries); (6) pay, terminationmake or declare any dividends or distributions (other than cash tax distributions and cash distributions pursuant to the Operating Agreement of NEG Holding dated May 1, stock option2001) in respect of any of its Equity Interests; (7) issue, stock appreciation rightgrant, restricted stocksell, performance unittransfer, stock equivalentdeliver, stock purchasepledge, pensionpromise, retirementdispose of or encumber, deferred compensationor authorize the issuance, employmentgrant, severancesale, transfer, deliverance, pledge, promise, disposition or encumbrance of, or alter or modify the terms of rights or obligations under, any Equity Interests, or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any Equity Interest or any other ownership interest of the Company or any of its Subsidiaries; (8) (A) repurchase, redeem, or otherwise acquire any of its Equity Interests or any Equity Interests of any Subsidiary; (B) effect any reorganization or recapitalization; (C) split, combine or reclassify any Equity Interests of the Company or any of its Subsidiaries; or (D) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, merger, consolidation, conversion, restructuring, recapitalization, or other employee benefit agreementreorganization of the Company or any of its Subsidiaries; (9) (A) take any action with respect to the grant of or increase in any severance or termination pay to any current or former director, trust, plan, fund, executive officer or other arrangement for the benefit or welfare of any employee of the Business; Company or any of its Subsidiaries, (iiB) increase in execute any manner the employment, deferred compensation or fringe benefits of other similar agreement (or any amendment to any such existing agreement) with any such director, executive officer or employee of the Business; Company or any of its Subsidiaries, (iiiC) pay adopt or establish any new employee benefit plan or amend in any material respect any existing employee benefit plan, (D) provide any material benefit to any a current or former director, executive officer or employee of the Business Company or any benefit of its Subsidiaries not required by any existing agreement or employee benefit agreement, trust, plan, fundor (E) take any action that would result in any plan, program or other arrangement as in effect on agreement violating Section 409A of the date hereofCode or provide any employee entitlement to a tax gross−up or similar payment for any excise tax that may be due under Section 409A of the Code; (d) sell, lease, transfer, or otherwise dispose of, directly or indirectly, any of the Assets; (e) pay, discharge, or satisfy any claims, liabilities, or obligations relating to the Business (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction in the ordinary course of the Business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Financial Statements; (f) enter into any lease, contract, agreement, commitment, arrangement, or transaction relating to the Business; (g10) amend, modify, or change in any existing leasematerial respect any Company Contract or Oil and Gas Contract, contract, or agreement relating to other than in the Ordinary Course of Business; (h) waive, release, grant, or transfer any rights of value relating to the Business; (i) delay payment of any account payable or other liability of Seller relating to the Business beyond its due date or the date when such liability would have been paid in the ordinary course of the Business consistent with past practice; (j) permit any current insurance or reinsurance policies to be cancelled or terminated or any of the coverages thereunder to lapse if such policy covers Assets or insures risks, contingencies, or liabilities of the Business; (k11) change any of the accounting principles or practices used by it it, except for any change required by reason of a concurrent change in GAAP and notice of which is given in writing by the Company to Buyer; (12) except as required by Law, make or change any Tax election, change an annual accounting period, adopt or change any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment relating to the Business; (l) Company or any of its Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action which would or might make any of relating to the representations or warranties of Seller or Oxford contained in this Agreement untrue or inaccurate as filing of any time from Tax Return or the date payment of this Agreement to any Tax without the Closing consent of Buyer, which consent shall not be unreasonably withheld or would or might result in any of the conditions set forth in this Agreement not being satisfieddelayed; or (m13) authorize or propose, or agree in writing or otherwise to take, take any of the actions described in this SectionSection 6.1(b).