Common use of Conduct of Business by Seller Clause in Contracts

Conduct of Business by Seller. Except to the extent consented to in writing by Buyer or as expressly permitted or contemplated by the Agreement, during the period from the date of the Agreement to the Closing, Seller shall carry on its business in the Ordinary Course of Business and, to the extent consistent therewith, use best efforts to preserve intact its current business organizations, keep available the services of its current employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it. Without limiting the generality of the foregoing, without Buyer's written consent during the period from the date of the Agreement to the Closing, none of the Selling Parties shall: (a) amend its Governing Documents; (b) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof; or (ii) any assets that are material, individually or in the aggregate, to Seller, except purchases in the Ordinary Course of Business; (c) sell, lease, license, mortgage or otherwise encumber or subject to any Encumbrances (other than Permitted Encumbrances pursuant to its existing indebtedness) or otherwise dispose of any of its properties or assets, except in the Ordinary Course of Business; (d) incur any indebtedness for borrowed money (except to Buyer) or guarantee any such indebtedness of another person, guarantee any debt securities of another person, except for borrowings under its existing credit facilities for working capital purposes, in an aggregate amount of less than $100,000, the endorsement of checks in the Ordinary Course of Business and the extension of credit to customers in the Ordinary Course of Business; or (ii) make any loans, advances or capital contributions to, or investments in, any other Person; (e) except for the items currently contracted for by Seller, make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $10,000 or, in the aggregate, are in excess of $50,000; (f) make any material Tax election or settle or compromise any material income Tax liability; (g) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued or contingent, asserted or unasserted) relating to the Assets, the business of the Seller or the Assumed Liabilities, without the prior written consent of Buyer, other than the payment, discharge or satisfaction, in the Ordinary Course of Business or in accordance with their terms, of Liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Financial Statements or incurred in the Ordinary Course of Business; (h) modify, amend or terminate any material Seller Contract, or waive, release or assign any material rights or claims; (i) except as required to comply with applicable law, (i) adopt, enter into or amend any Employee Plan; (ii) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any employee of Seller; or (iii) terminate, amend, modify, or grant any awards under, any Employee Plan; (j) other than as required by law or GAAP, make any change to its accounting policies or procedures; (k) maintain the Assets in a state of repair and condition that complies with Legal Requirements and is consistent with the requirements and Seller's Ordinary Course of Business; (l) comply with all Legal Requirements and contractual obligations applicable to the operation of Seller's business; (m) except as mutually agreed upon by Seller and Buyer, materially change Seller's existing employment conditions, hire new employees or terminate current Seller employees; or (n) authorize any of, or commit or agree to take any of, the foregoing actions.

Conduct of Business by Seller. Except to the extent consented to in writing by Buyer or as expressly permitted or contemplated by the Agreement, during the period from the date of the Agreement Prior to the Closing, and except as otherwise contemplated by this Agreement, set forth in Section 6.2 of the Disclosure Schedule or consented to or approved by Parent, each of the Seller Agreement Parties covenant and agrees that it shall carry on cause each Seller Entity to, operate its business in the Ordinary Course ordinary course of Business and, to the extent consistent therewith, business and use best commercially reasonable efforts to preserve intact its current business organizationsthe properties, keep available the services business, operations (including officers and employees), goodwill and relationships with suppliers and customers of its current employees business and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it. Without limiting the generality shall not undertake any of the foregoing, without Buyer's written consent during the period from the date of the Agreement to the Closing, none of the Selling Parties shallfollowing: (a) amend its Governing Documentsthe organizational documents of any Seller Entity; (b) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a merger, consolidation, restructuring, recapitalization or other reorganization; (c) sell, transfer or otherwise dispose of its material tangible personal or real assets, except, in the ordinary course of business consistent with past practice, or create any Encumbrance on any of its material assets, except for Permitted Encumbrances and not in excess of $100,000 for any transaction or series of related transactions; (d) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any Person or business or any corporation, partnership, joint venture, association or other business organization or division thereof; thereof or (ii) any assets that are materialmaterial assets, individually except, with respect to this clause (ii), (A) purchases of inventory or supplies in the aggregate, to Seller, except ordinary course of business consistent with past practice or (B) other purchases of assets in the Ordinary Course ordinary course of Businessbusiness consistent with past practice and not in excess of $100,000 for any purchase or series of related purchases; (ce) sellcreate, leaseincur, licenseassume, mortgage modify, guarantee, endorse or otherwise encumber become liable or subject responsible with respect to (whether directly, contingently or otherwise) any Encumbrances Indebtedness other than Indebtedness not in excess of $50,000 and incurred in the ordinary course of business and consistent with past practice; (f) place any Encumbrance on any of the properties of any Seller Entity, other than Permitted Encumbrances pursuant to its existing indebtedness) or otherwise dispose of any of its properties or assets, except in the Ordinary Course of BusinessEncumbrances; (dg) incur issue, sell or create any indebtedness for borrowed money Encumbrance on, (except to Buyeri) the Existing Seller Units, any membership interests or guarantee any such indebtedness of another person, guarantee any debt other equity securities of another person, except for borrowings under its existing credit facilities for working capital purposes, in an aggregate amount of less than $100,000, the endorsement of checks in the Ordinary Course of Business and the extension of credit to customers in the Ordinary Course of Business; or (ii) any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any membership interests or other equity securities; (h) split, combine, recapitalize or reclassify the Existing Seller Units or declare, pay or set aside any distribution or other dividend (whether in cash, equity, or property or any combination thereof) in respect of the Existing Seller Units; (i) make any loans, advances or capital contributions to, or investments in, any other Person, except in the ordinary course of business and consistent with past practice and not exceeding $10,000 individually and $50,000 in the aggregate. (j) lease or sublease any real or personal property to third parties or amend any of the Leases of the Seller Entities; (ek) except for as required pursuant to Contracts existing and in force prior to the items currently contracted for date of this Agreement described in Section 4.12 or Section 4.23 of the Disclosure Schedule or as otherwise required by Sellerapplicable Law, (i) grant any increase in the salaries, benefits or other compensation payable or to become payable to, or any advance or loan to, any executive officer or employee, (ii) enter into, terminate, adopt or amend in any material respect any Benefit Plan or collective bargaining agreement, (iii) make any award or agree grant under any Benefit Plan, (iv) hire any new employee or (v) fail to make any new capital expenditure or expenditures which, individually, is contributions to Benefit Plans in excess of $10,000 or, in the aggregate, are in excess of $50,000accordance with past practice; (fl) make any material Tax election or waive, release, assign, settle or compromise any material income Tax liabilityLegal Proceeding; (gm) pay, discharge, settle make any new commitment or satisfy increase any claims, liabilities commitment for capital expenditures or obligations (absolute, accrued or contingent, asserted or unasserted) relating to the Assets, the business engage in any new lines of the Seller or the Assumed Liabilities, without the prior written consent of Buyer, other than the payment, discharge or satisfaction, in the Ordinary Course of Business or in accordance with their terms, of Liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Financial Statements or incurred in the Ordinary Course of Businessbusiness; (hn) modifyexcept for any transaction, amend Contract or terminate commitment which is merely an extension or continuation of any material Seller Contractexisting transaction, Contract or waivecommitment, release enter into any transaction, Contract or assign any material rights or claimscommitment that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act, as if the Securities Act was applicable to Seller; (io) except as required to comply with applicable law, (i) adopt, enter into any material transaction, Contract or amend any Employee Plan; (ii) increase in any manner commitment outside the compensation or fringe benefits of, or pay any bonus to, any employee ordinary course of Seller; or (iii) terminatebusiness, amend, modify, assign, terminate or grant fail to renew any awards underContract with the customers and suppliers listed in Section 4.24, waive or permit the loss of any Employee PlanPermit or right of substantial value or cancel any material debt or claim; (jp) other than amend, modify, assign or terminate any of the employment contracts with the Key Employees attached as Exhibit A hereto; (q) sell, assign, transfer, license or convey any rights under, or abandon, permit to be cancelled or otherwise dedicate to the public any material Intellectual Property owned by any Seller Entity; (r) change or modify its credit, collection or payment policies or procedures as in effect on the date hereof in a manner materially adverse to it or its business; (s) fail to maintain its books of account and records consistent with its past practices and except as required by law Law or applicable accounting principles (including GAAP), make any change to its accounting principles, methods, policies or and procedures; (kt) maintain except as may be required by Law, including as a result of a change in Law, make or change any material election with respect to Taxes, change any Tax accounting period, change any method of Tax accounting, file any amendment to any Tax Return, fail to file any Tax Return due on or prior to the Assets in Closing Date when due, enter into a state closing agreement with any taxing authority, surrender any right to claim a refund for Taxes, consent to an extension of repair and condition that complies with Legal Requirements and is consistent with the requirements and Seller's Ordinary Course statute of Businesslimitations applicable to any Tax claim or assessment, or take any other similar action; (lu) comply with all Legal Requirements and contractual obligations applicable to the operation take or allow any action that would result in a termination of Seller's businessor change in classification for U.S. federal income tax purposes of any Seller Entity; (mv) except as mutually agreed upon by Seller and Buyer, materially change Seller's existing employment conditions, hire new employees or terminate current Seller employees; or (n) authorize enter into any ofContract with respect to, or otherwise agree or commit or agree to take to, any of, of the foregoing actionsforegoing.

Conduct of Business by Seller. Except to the extent consented to in writing by Buyer or as expressly permitted or contemplated by the Agreement, during the period from the date of the Agreement Prior to the Closing, and except as otherwise contemplated by this Agreement, set forth in Section 6.2 of the Disclosure Schedule or consented to or approved by Parent, each of the Seller Agreement Parties covenant and agrees that it shall carry on cause each Seller Entity to operate its business in the Ordinary Course ordinary course of Business and, to the extent consistent therewith, business and use best commercially reasonable efforts to preserve intact its current business organizationsthe properties, keep available the services business, operations (including officers and employees), goodwill and relationships with suppliers and customers of its current employees business and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it. Without limiting the generality shall not undertake any of the foregoing, without Buyer's written consent during the period from the date of the Agreement to the Closing, none of the Selling Parties shallfollowing: (a) amend its Governing Documentsthe organizational documents of any Seller Entity; (b) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a merger, consolidation, restructuring, recapitalization or other reorganization; (c) sell, transfer or otherwise dispose of its material tangible personal or real assets, except, in the ordinary course of business consistent with past practice, or create any Encumbrance on any of its material assets, except for Permitted Encumbrances and not in excess of $100,000 for any transaction or series of related transactions; (d) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any Person or business or any corporation, partnership, joint venture, association or other business organization or division thereof; thereof or (ii) any assets that are materialmaterial assets, individually except, with respect to this clause (ii), (A) purchases of inventory or supplies in the aggregate, to Seller, except ordinary course of business consistent with past practice or (B) other purchases of assets in the Ordinary Course ordinary course of Businessbusiness consistent with past practice and not in excess of $100,000 for any purchase or series of related purchases; (ce) sellcreate, leaseincur, licenseassume, mortgage modify, guarantee, endorse or otherwise encumber become liable or subject responsible with respect to (whether directly, contingently or otherwise) any Encumbrances Indebtedness other than Indebtedness not in excess of $50,000 and incurred in the ordinary course of business and consistent with past practice; (f) place any Encumbrance on any of the properties of any Seller Entity, other than Permitted Encumbrances; (g) issue, sell or create any Encumbrance on (i) the Existing Seller Equity, any membership interests or other equity securities or (ii) any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any membership interests or other equity securities; (h) split, combine, recapitalize or reclassify any Existing Seller Equity or declare, pay or set aside any non-cash distribution or other dividend in equity or property or any combination thereof in respect of its Existing Seller Equity other than distributions made for tax purposes in the ordinary course of business (for the avoidance of doubt, nothing contained herein shall prohibit or otherwise limit the Seller Entities from issuing cash dividends payable before the Closing Date); (i) lease or sublease any personal property (other than Permitted Encumbrances pursuant to its existing indebtednessin the ordinary course of business) or otherwise dispose of lease or sublease any real property to third parties or amend any of its properties or assets, except in the Ordinary Course Leases of Businessthe Seller entities; (d) incur any indebtedness for borrowed money (except to Buyer) or guarantee any such indebtedness of another person, guarantee any debt securities of another person, except for borrowings under its existing credit facilities for working capital purposes, in an aggregate amount of less than $100,000, the endorsement of checks in the Ordinary Course of Business and the extension of credit to customers in the Ordinary Course of Business; or (iij) make any loans, advances or capital contributions to, or investments in, any other Person; (e) , except for in the items currently contracted for by Seller, make or agree to make any new capital expenditure or expenditures which, individually, is in excess ordinary course of business and consistent with past practice and not exceeding $10,000 or, 25,000 individually and $75,000 in the aggregate, are in excess of $50,000; (f) make any material Tax election or settle or compromise any material income Tax liability; (g) payprovided, dischargehowever, settle or satisfy any claims, liabilities or obligations (absolute, accrued or contingent, asserted or unasserted) relating that the foregoing shall not apply to the Assets, the business of the Seller or the Assumed Liabilities, without the prior written consent of Buyer, other than the payment, discharge or satisfaction, in the Ordinary Course of Business or in accordance with their terms, of Liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Financial Statements or incurred in the Ordinary Course of Business; (h) modify, amend or terminate any material Seller Contract, or waive, release or assign any material rights or claims; (i) except as required loans made to comply agents in the ordinary course of business and consistent with applicable lawpast practice which are secured by residual payments to such agents, provided that such loans do not exceed twenty (i20) adopt, enter into or amend any Employee Plan; times the monthly amount of residuals being paid to such agents and (ii) increase loans made by BizFunds in any manner the compensation or fringe benefits of, or pay any bonus to, any employee ordinary course of Seller; or (iii) terminate, amend, modify, or grant any awards under, any Employee Plan; (j) other than as required by law or GAAP, make any change to its accounting policies or proceduresbusiness and consistent with past practice; (k) maintain except (A) as required pursuant to Contracts existing and in force prior to the Assets date of this Agreement described in a state Section 4.12 or Section 4.23 of repair and condition that complies with Legal Requirements and is the Disclosure Schedule or (B) as otherwise required by applicable Law, (i) grant any increase in the salaries, benefits or other compensation payable or to become payable to, or any advance or loan to, any executive officer or employee (other than increases in salary in the ordinary course of business, consistent with past practice, to employees other than executive officers), (ii) enter into, terminate, adopt or amend in any material respect any employment agreement, restrictive covenant agreement, Benefit Plan or collective bargaining agreement, (iii) make any award or grant under any Benefit Plan, (iv) hire any new employee other than in the requirements ordinary course and Seller's Ordinary Course of Businessconsistent with past practice or (v) fail to make contributions to Benefit Plans in accordance with past practice; (l) comply with all except in the ordinary course of business, waive, release, assign, settle or compromise any Legal Requirements and contractual obligations applicable to the operation of Seller's businessProceeding; (m) except as mutually agreed upon by Seller and Buyerin the ordinary course of business, materially change Seller's existing employment conditions, hire make any new employees commitment or terminate current Seller employees; orincrease any commitment for capital expenditures or engage in any new lines of business; (n) authorize except for any oftransaction, Contract or commitment which is merely an extension or continuation of any existing transaction, Contract or commitment, enter into any transaction, Contract or commitment that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act, as if the Securities Act was applicable to Seller; (o) enter into any material transaction, Contract or commitment outside the ordinary course of business, amend, modify, assign, terminate or fail to renew any Contract with the persons or entities on Section 4.24(a) and Section 4.24(b) of the Disclosure Schedule, respectively, waive or permit the loss of any Permit or right of substantial value or cancel any material debt or claim; (p) amend, modify, assign or terminate any of the employment contracts with the Key Employees attached as Exhibit A hereto or the restrictive covenant agreement with Jxxxx Xxxxxxx attached as Exhibit B hereto; (q) sell, assign, transfer, license or convey any rights under, or commit abandon, permit to be cancelled or agree otherwise dedicate to the public any material Intellectual Property owned by any Seller Entity; (r) change or modify its credit, collection or payment policies or procedures as in effect on the date hereof in a manner materially adverse to it or its business; (s) fail to maintain its books of account and records consistent with its past practices and except as required by Law or applicable accounting principles (including GAAP), make any material change in its accounting principles, methods, policies and procedures; (t) except as may be required by Law, including as a result of a change in Law, make or change any material election with respect to Taxes, change any Tax accounting period, change any method of Tax accounting, file any material amendment to any Tax Return, fail to file any Tax Return due on or prior to the Closing Date when due, enter into a closing agreement with any taxing authority, surrender any material right to claim a refund for Taxes, consent to an material extension of the statute of limitations applicable to any Tax claim or assessment, or take any other similar action; provided, that each Seller Entity shall notify Parent in writing at least 10 Business Days prior to taking any action described in this Section 6.2(t).; (u) not revoke or change the Seller’s election to be treated as an S Corporation within the meaning of Section 1361 of the Code or take any action or fail to take any ofaction that would cause such election to change or to be terminated or make, change or terminate any election regarding the foregoing actionsTax classification of any Seller Entity or take any action or fail to take any action that would change the Tax classification of any Seller Entity; (v) enter into any Contract with respect to, or otherwise agree or commit to, any of the foregoing.

Conduct of Business by Seller. Pending the Closing. Except as otherwise expressly contemplated hereby, after the date hereof and prior to the extent consented to Closing or earlier termination of this Agreement, unless Purchaser shall otherwise agree in writing by Buyer or as otherwise expressly permitted or contemplated by the this Agreement, during the period from the date of the Agreement to the Closing, Seller shall carry on shall: (a) conduct its business only in the Ordinary Course ordinary and usual course of Business and, business and consistent with past practice as previously disclosed to the extent consistent therewith, Purchaser; (b) use its best efforts to to: preserve intact its current business organizationsorganization and goodwill, keep available the services of its current employees present officers and key employees, and preserve its the goodwill and business relationships with suppliers, distributors, customers, suppliers, licensors, licensees, distributors employees and others having business dealings relationships with it. Without limiting the generality of the foregoing, without Buyer's written consent during the period from the date of the Agreement to the Closing, none of the Selling Parties shall: (a) amend its Governing Documents; (b) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof; or (ii) any assets that are material, individually or in the aggregate, to Seller, except purchases in the Ordinary Course of Business; (c) sellconfer on a regular and frequent basis with one or more representatives of Purchaser to discuss operational matters of materiality and the general status of ongoing operations of Seller, lease, license, mortgage or otherwise encumber or subject to provided that Seller need not follow any Encumbrances (other than Permitted Encumbrances pursuant to its existing indebtedness) or otherwise dispose course of any of its properties or assets, except in the Ordinary Course of Businessaction requested by Purchaser; (d) incur promptly notify Purchaser of any indebtedness for borrowed money significant changes in the business, properties, assets, condition (except to Buyerfinancial or other) or guarantee any such indebtedness results of another person, guarantee any debt securities operations of another person, except for borrowings under its existing credit facilities for working capital purposes, in an aggregate amount of less than $100,000, the endorsement of checks in the Ordinary Course of Business and the extension of credit to customers in the Ordinary Course of Business; or (ii) make any loans, advances or capital contributions to, or investments in, any other PersonSeller; (e) except for the items currently contracted for by not directly or indirectly, (i) sell, lease, encumber or otherwise transfer any Assets or stock of Seller, make (including, any merger, consolidation or agree to make any new capital expenditure or expenditures which, individually, is in excess similar transactions) other than sales of $10,000 or, nonmaterial amounts of inventory in the aggregateordinary course of business ("Prohibited Transactions"), are (ii) enter into or negotiate any agreement with respect to any Prohibited Transaction, (iii) submit to any other person or entity any offer or proposal for, or provide any information useful for, or relating to, any Prohibited Transaction, (iv) solicit or encourage any offer from any third party for any Prohibited Transaction, (v) otherwise participate in excess discussions or take any other action that is designed to promote any Prohibited Transaction or (vi) take any other action that is inconsistent with a good faith attempt to fulfill the purposes of $50,000this Agreement; (f) make not enter into any material Tax election contract, agreement or settle or compromise any material income Tax liabilitylease; (g) pay, discharge, settle not increase the salary or satisfy other compensation of any claims, liabilities or obligations (absolute, accrued or contingent, asserted or unasserted) relating to the Assets, the business employee of the Seller or the Assumed Liabilitiesenter into or amend any employment, without the prior written consent noncompetition, severance, bonus, special pay arrangement with respect to termination of Buyer, employment or other similar arrangements or agreements other than the payment, discharge or satisfaction, in the Ordinary Course pursuant to normal annual reviews consistent with past practice of Business or in accordance with their terms, of Liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Financial Statements or incurred in the Ordinary Course of BusinessSeller as previously disclosed to Purchaser; (h) modify, amend or terminate any material Seller Contract, or waive, release or assign any material rights or claims; (i) except as required to comply with applicable law, (i) not adopt, enter into or amend any Employee Plan; bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, health care, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee or retiree of Seller, except (i) as required to comply with changes in applicable law occurring after the date hereof and (ii) increase with respect to all plans other than in any manner the compensation or fringe benefits ofordinary course of business and consistent with past practice as previously disclosed to Purchaser; (i) maintain and pay premiums for all insurance policies in effect on the date of this Agreement until the Closing and at the option of the Purchaser for a period of thirty (30) days following the Closing, or pay any bonus to, any employee of Seller; or (iii) terminate, amend, modify, or grant any awards under, any Employee Plan;provided Purchaser pays all post-closing premiums. (j) other than as use reasonable efforts to obtain any consent or approval required by law or GAAP, make to assign any change of the contracts and agreements being assigned to its accounting policies or proceduresPurchaser hereunder; (k) maintain not take any action that a reasonable person would have reason to believe may harm the Assets in a state good will or reputation of repair and condition that complies the business purchased from Seller by Purchaser or relationship with Legal Requirements and is consistent with the requirements and customers, suppliers or employees of Seller's Ordinary Course of Business; (l) comply with take all Legal Requirements and contractual obligations applicable reasonable actions requested by Purchaser, but not including the expenditure of any money, to extend the operation term of Seller's businessany contract or agreement being assigned to Purchaser hereunder; (m) not disclose any of its trade secrets to others, except in the ordinary course of its business, consistent with past practice as mutually agreed upon previously disclosed to Seller, and shall cooperate with Purchaser to protect against further use of such trade secrets by Seller and Buyer, materially change Seller's existing employment conditions, hire new employees or terminate current Seller employees; orothers; (n) authorize any ofmaintain normal levels of inventory and conduct normal levels of equipment maintenance consistent with past practice as previously disclosed to Purchaser; (o) not accelerate collection of account receivables faster than past practice as previously disclosed to Purchaser; (p) pay all trade payables, employment withholding, social security, workmen's compensation, sales and other taxes, pension plan, 401 (k), health and other contributions, and other obligations as and when due consistent with past practice as previously disclosed to Purchaser; and (q) not agree orally or in writing, or commit or agree otherwise, to take any of, of the foregoing actionsactions or any other action which would make any representation or warranty contained in Article VI untrue or incorrect in any material respect as of the time of the Closing.

Conduct of Business by Seller. Pending the Closing. Except to as provided in Schedule 6.1, Seller and the extent consented to in writing by Buyer Members, jointly and severally, covenant and agree that, except as otherwise expressly required or as expressly permitted or contemplated by the terms of this Agreement, during the period from between the date of the this Agreement to and the Closing, the business of Seller shall carry on be conducted only in, and Seller shall not take any action except in, the ordinary course of business consistent with past practice. Seller and the Members shall use its business in the Ordinary Course of Business and, to the extent consistent therewith, use or their reasonable best efforts to preserve intact its current Seller's business organizations, to keep available the services of its current officers, employees and consultants, and to preserve its present relationships with customers, supplierssuppliers and other Persons with which it has business relations. By way of amplification and not limitation, licensorsSeller shall not, licensees, distributors and others having business dealings with it. Without limiting except as expressly required or permitted by the generality terms of the foregoing, without Buyer's written consent during the period from this Agreement between the date of the this Agreement to and the Closing, none directly or indirectly, do or propose or agree to do any of the Selling Parties shallfollowing without the prior written consent of Purchaser: (a) amend or otherwise change its Governing Charter Documents; (b) acquire issue, sell, pledge, dispose of, encumber, or agree authorize the issuance, sale, pledge, disposition, grant or encumbrance of any of its assets, tangible or intangible, except in the ordinary course of business consistent with past practice; or any shares of its capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock; (ic) by merging declare, set aside, make or consolidating withpay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or other securities; (d) sell, lease or transfer any of its properties or assets (other than in the ordinary course of business consistent with past practice), or acquire (including, without limitation, for cash or shares of stock, by purchasing a substantial portion merger, consolidation or acquisition of the assets of, stock or by assets) any other manner, any business or interest in any corporation, partnership, joint venture, association partnership or other business organization or division thereofthereof or any assets; or (ii) make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets that are material, individually or in the aggregate, to Seller, except purchases in the Ordinary Course of Business; (c) sell, lease, license, mortgage or otherwise encumber or subject to any Encumbrances (other than Permitted Encumbrances pursuant to its existing indebtedness) or otherwise dispose of any of its properties or assets, other Person (except in the Ordinary Course ordinary course of Business; (d) business consistent with past practice); make or obligate itself to make capital expenditures out of the ordinary course of business consistent with past practice; other than in the ordinary course of business consistent with past practice, incur any obligations or liabilities including, without limitation, any indebtedness for borrowed money (except to Buyer) or guarantee any such indebtedness of another personmoney, guarantee issue any debt securities of another personor assume, except for borrowings under its existing credit facilities for working capital purposes, in guarantee or endorse or otherwise as an aggregate amount of less than $100,000accommodation become responsible for, the endorsement obligations of checks any Person, or make any loans or advances, modify, terminate, amend or enter into any Contract other than as expressly required or permitted herein or in the Ordinary Course ordinary course of Business and the extension business consistent with past practice, or impose any security interest or other Lien on any of credit to customers its assets other than in the Ordinary Course ordinary course of Business; or (ii) make any loans, advances or capital contributions to, or investments in, any other Personbusiness consistent with past practice; (e) pay any bonus to its officers or employees, or increase the compensation payable or to become payable to its officers or employees or, except as presently bound to do, grant any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees, or establish, adopt, enter into or amend or take any action to accelerate any rights or benefits which any collective bargaining, bonus, profit sharing trust, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the items currently contracted for by Sellerbenefit of any directors, make officers or agree to make any new capital expenditure or expenditures which, individually, is in excess of $10,000 or, in the aggregate, are in excess of $50,000employees; (f) make take any material Tax election action with respect to accounting policies or settle or compromise any material income Tax liabilityprocedures other than in the ordinary course of business and in a manner consistent with past practices; (g) pay, discharge, settle discharge or satisfy any existing claims, liabilities or obligations (absolute, accrued or contingentaccrued, asserted or unasserted) relating to the Assets, the business of the Seller contingent or the Assumed Liabilities, without the prior written consent of Buyerotherwise), other than the payment, discharge or satisfaction, satisfaction in the Ordinary Course ordinary course of Business or in accordance business and consistent with their terms, past practice of Liabilities due and payable liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Financial Statements Statements, as appropriate, or liabilities incurred after the date thereof in the Ordinary Course ordinary course of Businessbusiness and consistent with past practice or delay paying any amount payable beyond forty-five (45) days following the date on which it is due, except to the extent being contested in good faith; (h) modify, amend enter into any transaction or terminate agreement with any material Seller Contract, of the Sellers or waive, release an Affiliate thereof except for such transactions or assign any material rights or claims;agreements expressly permitted herein; or (i) except as required agree, in writing or otherwise, to comply with applicable law, (i) adopt, enter into take or amend authorize any Employee Plan; (ii) increase of the foregoing actions or any action which would make any representation or warranty in Article 5 untrue or incorrect in any manner the compensation or fringe benefits of, or pay any bonus to, any employee of Seller; or (iii) terminate, amend, modify, or grant any awards under, any Employee Plan; (j) other than as required by law or GAAP, make any change to its accounting policies or procedures; (k) maintain the Assets in a state of repair and condition that complies with Legal Requirements and is consistent with the requirements and Seller's Ordinary Course of Business; (l) comply with all Legal Requirements and contractual obligations applicable to the operation of Seller's business; (m) except as mutually agreed upon by Seller and Buyer, materially change Seller's existing employment conditions, hire new employees or terminate current Seller employees; or (n) authorize any of, or commit or agree to take any of, the foregoing actionsrespect.

Conduct of Business by Seller. Except to the extent consented to in writing by Buyer or as expressly permitted or contemplated by the Agreement, during the period from Between the date of this Agreement and the Agreement to Closing Date, unless the ClosingPurchaser shall otherwise agree in writing, Seller the Messaging Business shall carry on its business be conducted only in the Ordinary Course ordinary course of Business and, to the extent consistent therewith, use best efforts to preserve intact its current business organizations, keep available the services of its current employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with itbusiness. Without limiting the generality of the foregoing, without Buyer's written consent during the period from Between the date of this Agreement and the Agreement to Closing Date, except as otherwise permitted by or contemplated in this Agreement, without the Closing, none prior consent of the Selling Parties Purchaser, neither the Seller nor any of the Messaging Subsidiaries shall, in connection with the Messaging Business or any of the Transferred Assets: (a) amend its Governing Documentssell, transfer, encumber or otherwise dispose of, or dividend or distribute to stockholders, any Transferred Assets or any interest therein, other than Inventory sold or disposed of in the ordinary course of business; (b) acquire any corporation, partnership, limited liability company, other business organization or division thereof or any material amount of assets; (c) incur any indebtedness for borrowed money in excess of $50,000 individually or $200,000 in the aggregate; (d) enter into any contract, agreement or arrangement that would be a Material Contract if entered into prior to the date hereof, other than any such contracts, agreements or arrangements entered into in the ordinary course of business (including contracts, agreements or arrangements with customers, vendors or clients); (e) authorize, or make any commitment with respect to, any single capital expenditure that is in excess of $50,000 or capital expenditures that are, in the aggregate, in excess of $100,000 for the Messaging Business taken as a whole; (f) not use commercially reasonable efforts to exercise any rights of renewal with respect to any material Leased Real Property that by its terms would otherwise expire; (g) grant or announce any increase in the salaries, bonuses or other benefits payable to any Messaging Business Employees (whether in cash, stock or other equity instruments), other than as required by Law or any existing Contract or Employee Benefit Plan, pursuant to any plans, programs or agreements existing on the date hereof and disclosed to the Purchaser or other ordinary increases not inconsistent with the past practices of the Seller or the Messaging Subsidiaries, as the case may be; (h) (i) sell, license or transfer to any person or entity any IP Rights of the Messaging Business or enter into any agreement with respect to any IP Rights of the Messaging Business with any person or entity or with respect to any intellectual property of any person or entity (unless such agreement is entered into in the ordinary course of business consistent with past practice), (ii) buy or license any intellectual property or enter into any agreement with respect to the intellectual property of any person or entity for use in the Messaging Business (other than in the ordinary course of business consistent with past practice), or (iii) enter into any agreement with respect to the development of any intellectual property with a third party in connection with the Messaging Business; (i) enter into or amend any contract pursuant to which any other party is granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Messaging Business (other than in the ordinary course of business consistent with past practice); (j) amend or otherwise modify (or agree to do so), or violate the terms of, any of the Assigned Contracts; (k) commence or settle any litigation related to the Messaging Business or the Transferred Assets; (l) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the any assets or equity securities of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof; , or (ii) otherwise acquire or agree to acquire any assets that which are material, individually or in the aggregate, to Seller, except purchases in the Ordinary Course of Messaging Business; (c) sell, lease, license, mortgage or otherwise encumber or subject to any Encumbrances (other than Permitted Encumbrances pursuant to its existing indebtedness) or otherwise dispose of any of its properties or assets, except in the Ordinary Course of Business; (d) incur any indebtedness for borrowed money (except to Buyer) or guarantee any such indebtedness of another person, guarantee any debt securities of another person, except for borrowings under its existing credit facilities for working capital purposes, in an aggregate amount of less than $100,000, the endorsement of checks in the Ordinary Course of Business and the extension of credit to customers in the Ordinary Course of Business; or (ii) make any loans, advances or capital contributions to, or investments in, any other Person; (e) except for the items currently contracted for by Seller, make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $10,000 or, in the aggregate, are in excess of $50,000; (f) make any material Tax election or settle or compromise any material income Tax liability; (g) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued or contingent, asserted or unasserted) relating to the Assets, the business of the Seller or the Assumed Liabilities, without the prior written consent of Buyer, other than the payment, discharge or satisfaction, in the Ordinary Course of Business or in accordance with their terms, of Liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Financial Statements or incurred in the Ordinary Course of Business; (h) modify, amend or terminate any material Seller Contract, or waive, release or assign any material rights or claims; (i) except as required to comply with applicable law, (i) adopt, enter into or amend any Employee Plan; (ii) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any employee of Seller; or (iii) terminate, amend, modify, or grant any awards under, any Employee Plan; (j) other than as required by law or GAAP, make any change to its accounting policies or procedures; (k) maintain the Assets in a state of repair and condition that complies with Legal Requirements and is consistent with the requirements and Seller's Ordinary Course of Business; (l) comply with all Legal Requirements and contractual obligations applicable to the operation of Seller's business; (m) grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement; (n) except as mutually agreed upon previously disclosed to the Purchaser with respect to the Seller’s healthcare plans, adopt or amend any employee benefit plan, or enter into any employment contract, pay or agree to pay any special bonus or special remuneration to any director, employee, consultant or contract worker, or increase the salaries or wage rates of its employees, consultants or contract workers, all except pursuant to already existing commitments; (o) enter into any strategic alliance or joint marketing arrangement or agreement with respect to the Messaging Business; (p) make any material change in any method of accounting or accounting practice or policy, except as required by Seller and BuyerGAAP or Law; (q) to the extent it could adversely impact the Purchaser with respect to a post-Closing taxable period, materially (i) make or change Seller's existing employment conditionsany election with respect of Taxes of the Acquired Subsidiaries or the Transferred Assets, hire new employees (ii) enter into any closing agreement, (iii) settle any material claim or terminate current Seller employeesassessment in respect of Taxes or (iv) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; or (nr) authorize any oftake, or commit agree in writing or agree otherwise to take take, any ofof the actions described in this Section 6.1, or any other action that would (i) prevent the foregoing actionsSeller from performing or cause the Seller not to perform its covenants hereunder or (ii) cause or result in the breach of any of the Seller’s representations and warranties contained herein.

Conduct of Business by Seller. Pending the Closing. Except to as provided in Schedule 6.1, Seller and the extent consented to in writing by Buyer Shareholders, jointly and severally, covenant and agree that, except as otherwise expressly required or as expressly permitted or contemplated by the terms of this Agreement, during the period from between the date of the this Agreement to and the Closing, the business of Seller shall carry on be conducted only in, and Seller shall not take any action except in, the ordinary course of business consistent with past practice. Seller and the Shareholders shall use its business in the Ordinary Course of Business and, to the extent consistent therewith, use or their reasonable best efforts to preserve intact its current Seller"s business organizations, to keep available the services of its current officers, employees and consultants, and to preserve its present relationships with customers, supplierssuppliers and other Persons with which it has business relations. By way of amplification and not limitation, licensorsSeller shall not, licensees, distributors and others having business dealings with it. Without limiting except as expressly required or permitted by the generality terms of the foregoing, without Buyer's written consent during the period from this Agreement between the date of the this Agreement to and the Closing, none directly or indirectly, do or propose or agree to do any of the Selling Parties shallfollowing without the prior written consent of Purchaser: (a) amend or otherwise change its Governing Charter Documents; (b) acquire issue, sell, pledge, dispose of, encumber, or agree authorize the issuance, sale, pledge, disposition, grant or encumbrance of any of its assets, tangible or intangible, except in the ordinary course of business consistent with past practice; or any shares of its capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock; (ic) by merging declare, set aside, make or consolidating withpay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or other securities; (d) sell, lease or transfer any of its properties or assets (other than in the ordinary course of business consistent with past practice), or acquire (including, without limitation, for cash or shares of stock, by purchasing a substantial portion merger, consolidation or acquisition of the assets of, stock or by assets) any other manner, any business or interest in any corporation, partnership, joint venture, association partnership or other business organization or division thereofthereof or any assets; or (ii) make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets that are material, individually or in the aggregate, to Seller, except purchases in the Ordinary Course of Business; (c) sell, lease, license, mortgage or otherwise encumber or subject to any Encumbrances (other than Permitted Encumbrances pursuant to its existing indebtedness) or otherwise dispose of any of its properties or assets, other Person (except in the Ordinary Course ordinary course of Business; (d) business consistent with past practice); make or obligate itself to make capital expenditures out of the ordinary course of business consistent with past practice; other than in the ordinary course of business consistent with past practice, incur any obligations or liabilities including, without limitation, any indebtedness for borrowed money (except to Buyer) or guarantee any such indebtedness of another personmoney, guarantee issue any debt securities of another personor assume, except for borrowings under its existing credit facilities for working capital purposes, in guarantee or endorse or otherwise as an aggregate amount of less than $100,000accommodation become responsible for, the endorsement obligations of checks any Person, or make any loans or advances, modify, terminate, amend or enter into any Contract other than as expressly required or permitted herein or in the Ordinary Course ordinary course of Business and the extension business consistent with past practice, or impose any security interest or other Lien on any of credit to customers its assets other than in the Ordinary Course ordinary course of Business; or (ii) make any loans, advances or capital contributions to, or investments in, any other Personbusiness consistent with past practice; (e) pay any bonus to its officers or employees, or increase the compensation payable or to become payable to its officers or employees or, except as presently bound to do, grant any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees, or establish, adopt, enter into or amend or take any action to accelerate any rights or benefits which any collective bargaining, bonus, profit sharing trust, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the items currently contracted for by Sellerbenefit of any directors, make officers or agree to make any new capital expenditure or expenditures which, individually, is in excess of $10,000 or, in the aggregate, are in excess of $50,000employees; (f) make take any material Tax election action with respect to accounting policies or settle or compromise any material income Tax liabilityprocedures other than in the ordinary course of business and in a manner consistent with past practices; (g) pay, discharge, settle discharge or satisfy any existing claims, liabilities or obligations (absolute, accrued or contingentaccrued, asserted or unasserted) relating to the Assets, the business of the Seller contingent or the Assumed Liabilities, without the prior written consent of Buyerotherwise), other than the payment, discharge or satisfaction, satisfaction in the Ordinary Course ordinary course of Business or in accordance business and consistent with their terms, past practice of Liabilities due and payable liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Financial Statements Statements, as appropriate, or liabilities incurred after the date thereof in the Ordinary Course ordinary course of Businessbusiness and consistent with past practice or delay paying any amount payable beyond forty-five (45) days following the date on which it is due, except to the extent being contested in good faith; (h) modify, amend enter into any transaction or terminate agreement with any material Seller Contract, of the Sellers or waive, release an Affiliate thereof except for such transactions or assign any material rights or claims;agreements expressly permitted herein; or (i) except as required agree, in writing or otherwise, to comply with applicable law, (i) adopt, enter into take or amend authorize any Employee Plan; (ii) increase of the foregoing actions or any action which would make any representation or warranty in Article 5 untrue or incorrect in any manner the compensation or fringe benefits of, or pay any bonus to, any employee of Seller; or (iii) terminate, amend, modify, or grant any awards under, any Employee Plan; (j) other than as required by law or GAAP, make any change to its accounting policies or procedures; (k) maintain the Assets in a state of repair and condition that complies with Legal Requirements and is consistent with the requirements and Seller's Ordinary Course of Business; (l) comply with all Legal Requirements and contractual obligations applicable to the operation of Seller's business; (m) except as mutually agreed upon by Seller and Buyer, materially change Seller's existing employment conditions, hire new employees or terminate current Seller employees; or (n) authorize any of, or commit or agree to take any of, the foregoing actionsrespect.