Common use of Conduct of Business by the Companies Clause in Contracts

Conduct of Business by the Companies. During the period from the Effective Date to the Closing, except as consented to in writing in advance by Purchaser, such consent not to be unreasonably withheld, conditioned, or delayed, or as otherwise required or permitted by this Agreement, or as set forth on Section 5.01 of the Parent Disclosure Letter, Parent shall cause the Companies to use commercially reasonable efforts to carry on the business of the Companies in the ordinary course of business consistent with past practice and to preserve intact the Companies’ business organization, maintain in effect all material Permits existing as of the Effective Date, preserve the Companies’ assets, rights, and properties in good repair and condition, and preserve the Companies’ relationships with customers, suppliers, and others having business dealings with them. In addition to and without limiting the generality of the foregoing, during the period from the Effective Date to the Closing, except as required or permitted by this Agreement, or as set forth on Section 5.01 of the Parent Disclosure Letter, the Parent shall cause the Companies not to do any of the following, without Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed: (a) amend, authorize, or propose to amend any of the Companies’ articles of incorporation or bylaws (or similar organizational documents); (b) either: (i) except for dividends paid to Parent, set any record or payment dates for, or make, declare, pay, or set aside for payment, any dividend on or in respect of, or declare or make any distribution (whether in cash, stock or property) on, any shares of capital stock or other equity interests of the Companies; (ii) purchase, redeem, or otherwise acquire, shares of capital stock or other equity interests or voting securities of the Companies or any options, warrants, or rights to acquire any such shares or other equity interests or voting securities, or (iii) split, combine, reclassify, or otherwise amend the terms of any capital stock or other equity interests or voting securities of the Companies, or issue or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for shares of capital stock or other equity interests of the Companies;

Conduct of Business by the Companies. During the period from the Effective Date to the Closing, except as consented to in writing in advance by Purchaser, such consent not to be unreasonably withheld, conditioned, or delayed, or as otherwise required or permitted by this Agreement, or as set forth on Section 5.01 of the Parent Disclosure Letter, Parent shall cause the Companies to use commercially reasonable efforts to carry on the business of the Companies in the ordinary course of business consistent with past practice and to preserve intact the Companies’ business organization, maintain in effect all material Permits existing as of the Effective Date, preserve the Companies’ assets, rights, and properties in good repair and condition, and preserve the Companies’ relationships with customers, suppliers, and others having business dealings with them. In addition to and without limiting the generality of the foregoing, during the period from the Effective Date to the Closing, except as required or permitted by this Agreement, or as set forth on Section 5.01 of the Parent Disclosure Letter, the Parent shall cause the Companies not to do any of the following, without Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed: : (a) amend, authorize, or propose to amend any of the Companies’ articles of incorporation or bylaws (or similar organizational documents); ; (b) either: : (i) except for dividends paid to Parent, set any record or payment dates for, or make, declare, pay, or set aside for payment, any dividend on or in respect of, or declare or make any distribution (whether in cash, stock or property) on, any shares of capital stock or other equity interests of the Companies; ; (ii) purchase, redeem, or otherwise acquire, shares of capital stock or other equity interests or voting securities of the Companies or any options, warrants, or rights to acquire any such shares or other equity interests or voting securities, or or (iii) split, combine, reclassify, or otherwise amend the terms of any capital stock or other equity interests or voting securities of the Companies, or issue or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for shares of capital stock or other equity interests of the Companies;; (c) issue, deliver, sell, grant, pledge, or otherwise encumber or subject to any Lien, any shares of the capital stock or other equity interests of the Companies, or any securities convertible into, or exchangeable for, or any rights, warrants or options to acquire, any such shares or other equity interests or voting securities, or any stock appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock of the Companies on a deferred basis or other rights -41-

Conduct of Business by the Companies. During the period ------------------------------------ from the Effective Date to date of this Agreement and continuing through the ClosingClosing Date, except as expressly contemplated or permitted by this Agreement or with the prior written consent of Buyer, each of the Companies shall (a) carry on its business in the ordinary course consistent with past practice; (b) make all commercially reasonable efforts to preserve its present business organization and relationships; (c) make all commercially reasonable efforts to keep available the present services of its employees; and (d) make all commercially reasonable efforts to preserve its rights, franchises, goodwill and relations with its customers and others with whom it conducts business, consistent with past practice. Without limiting the generality of the foregoing, except as set forth in Schedule 6.1, expressly permitted or contemplated by this Agreement or consented to in writing in advance by PurchaserBuyer, such consent not to be unreasonably withheld, conditioned, or delayed, or as otherwise required or permitted by this Agreement, or as set forth on Section 5.01 of the Parent Disclosure Letter, Parent shall cause the Companies to use commercially reasonable efforts to carry on the business none of the Companies shall, directly or indirectly: (i) amend, or agree to amend its Articles of Incorporation or By-laws (or comparable instruments), or merge with or into or consolidate with, or agree to merge with or into or consolidate with, any other Person, 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; (ii) issue or sell or purchase, or issue any option, warrant, convertible or exchangeable security, right, subscription, call, unsatisfied pre-emptive right or other agreement or right of any kind to purchase or otherwise acquire (including, without limitation, by exchange or conversion) (each a "Right"), or enter into any contracts, agreements or arrangements to issue or sell, any shares of its capital stock; (iii) incur any indebtedness for borrowed money or guarantee the indebtedness of other Persons, except in the ordinary course of business consistent with past practice practice; (iv) waive, or agree to waive, any right of material value to its business; (v) make, or agree to make, any material change in its accounting methods or practices for Tax or accounting purposes or make, or agree to make, any material change in depreciation or amortization policies or rates adopted by it for Tax or accounting purposes; (vi) materially change, or agree to materially change, any of its business policies or practices that relate to its business, including, without limitation, fee structure, fee waivers, expense reimbursement, interest rate management, security selection, sales and marketing, personnel, budget or product development policies; (vii) make any loan or advance to preserve intact the Companies’ business organizationShareholder or any of its Affiliates, maintain officers, directors, employees, consultants, agents or other representatives (other than travel advances made in effect all material Permits existing as the ordinary course of business), or make any other loan or advance otherwise than in the Effective Dateordinary course of business; (viii) sell, preserve the Companies’ offer to sell, abandon or make any other disposition of any of its assets, rightsexcept in the ordinary course of business; grant or suffer, or agree to grant or suffer, any Encumbrance on any of its material assets; (ix) except in the ordinary course of business or in amounts less than $25,000 in the aggregate, incur or assume, or agree to incur or assume, any liability or obligation (whether or not currently due and properties payable) relating to its business or any of its assets; (x) make any material change in good repair and conditionits overall investment strategy or mix of products; (xi) enter into, and preserve the Companies’ relationships or agree to enter into, any contract, agreement or arrangement with customers, suppliers, and others having business dealings with them. In addition to and without limiting the generality any of the foregoing, during the period from the Effective Date to the Closingits Affiliates, except as required necessary to transfer servicing obligations under the PCS Contracts to the Buyer; (xii) declare dividends or permitted by this Agreementdeclare or make any other distributions of any kind payable to the Shareholder or make any direct or indirect redemption, retirement, purchase or other acquisition of any shares of its capital stock or Rights; (xiii) create, renew, amend, terminate or cancel, or take any other action that may result in the creation, renewal, amendment, termination or cancellation of, any lease or Contract, except in the ordinary course of business and as set forth could not, in the aggregate, reasonably be expected to have a Company Material Adverse Effect; enter into or amend, or agree to enter into or amend, (x) any agreement pursuant to which it agrees to indemnify any party on Section 5.01 behalf of its business or pursuant to which it agrees to refrain from competing with any party with respect to its business or (y) any sub-advisory, management, distribution, marketing, custody or other services agreement; (xiv) take any action impairing its rights under any Contract other than in the ordinary course of business; (xv) adopt, amend, renew or terminate any Company Plan or any other employee program, agreement, arrangement or policy between any of the Parent Disclosure LetterCompanies and one or more of its employees, other than in the Parent shall cause ordinary course of business; (xvi) commit any act or omission which constitutes a breach or default under any Contract or material license to which it is a party or by which it or any of its properties or assets is bound the Companies not effect of which, in the aggregate, could reasonably be expected to have a Company Material Adverse Effect; (xvii) enter into any new line of business; (xviii) acquire or agree to acquire in any manner, including by way of merger, consolidation, purchase of an equity interest or assets, any business or any corporation, partnership, association or other business organization or division thereof; (xix) increase the salary or wages of any Company officers or employees except in the case of employees in accordance with past practices; (xx) make, or agree to make, any capital commitments of expenditures other than in the ordinary course of business consistent with past practice; (xxi) agree (by contract or otherwise) to do any of the following, without Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed: (a) amend, authorize, or propose to amend any of the Companies’ articles of incorporation or bylaws (or similar organizational documents); (b) either: (i) except for dividends paid to Parent, set any record or payment dates for, or make, declare, pay, or set aside for payment, any dividend on or in respect of, or declare or make any distribution (whether in cash, stock or property) on, any shares of capital stock or other equity interests of the Companies; (ii) purchase, redeem, or otherwise acquire, shares of capital stock or other equity interests or voting securities of the Companies or any options, warrants, or rights to acquire any such shares or other equity interests or voting securities, or (iii) split, combine, reclassify, or otherwise amend the terms of any capital stock or other equity interests or voting securities of the Companies, or issue or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for shares of capital stock or other equity interests of the Companies;foregoing.

Conduct of Business by the Companies. During (a) Except (i) as set forth on Section 6.1 of the period from the Effective Date to the ClosingDisclosure Schedule, except (ii) as consented to in writing in advance by Purchaserexpressly permitted, such consent not to be unreasonably withheld, conditioned, or delayed, or as otherwise required or permitted contemplated by this Agreement, or (iii) as approved or consented to in writing by Purchaser, during the period commencing on the date hereof and ending on the Closing Date, Sellers will, and will cause the Companies to, conduct the Business in the ordinary course and consistent with past practice and in material compliance with all Laws applicable to the Business. (b) Except (i) as set forth on Section 5.01 6.1 of the Parent Disclosure LetterSchedule, Parent shall (ii) as expressly permitted, required or contemplated by this Agreement, or (iii) as approved or consented to in writing by Purchaser, during the period commencing on the date hereof and ending on the Closing Date, Sellers will not, and will cause the Companies not to, do any of the following: (1) amend the articles of incorporation or bylaws of the Companies; (2) (A) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) with respect to use commercially reasonable efforts the capital stock of the Companies, except for a dividend or other distribution by a Company to carry on Sellers or their respective Subsidiaries in connection with the business transfer of cash held by such Company to Sellers, or (B) split, combine or reclassify any of the capital stock of the Companies or issue or authorize or propose the issuance of any other securities of the Companies in respect of, in lieu of or in substitution for shares of their capital stock; (3) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (A) any capital stock of, or other equity or voting interest in, the Companies, or (B) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire either (i) any capital stock of, or other equity or voting interest in the Companies, or (ii) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire, any capital stock of, or other equity or voting interest in, the Companies; (4) cause the Business (including the Companies) to incur or assume any indebtedness for borrowed money or guarantee any such indebtedness; (5) permit any of the assets of the Business (including the Assets) to become subject to any Encumbrance, other than Permitted Encumbrances; (6) sell, lease, assign, distribute or otherwise dispose of any of the assets of the Business (including the Assets), except for the disposition of inventory or minor amounts of personal property and obsolete assets sold or otherwise disposed of for fair value in the ordinary course of business consistent with past practice and practice; (7) acquire or agree to preserve intact acquire by merging or consolidating with, or by purchasing the Companies’ assets or equity securities of, or by any other manner, any business organizationor any corporation, maintain partnership, association or other business organization or division thereof, in effect all material Permits existing as the case of the Effective DateSellers, preserve the Companies’ assets, rights, and properties in good repair and condition, and preserve the Companies’ relationships with customers, suppliers, and others having business dealings with them. In addition to and without limiting the generality of the foregoing, during the period from the Effective Date respect to the ClosingBusiness, or otherwise acquire or agree to acquire any assets for the Business which are material, individually or in the aggregate, to the Business; (8) incur any capital expenditure which individually is in excess of $25,000 or is in excess of $75,000 in the aggregate and which would be an Assumed Liability; (A) modify or amend in any material manner any Material Contract, (B) terminate any Material Contract, except (i) in accordance with its terms or (ii) as required or permitted by this Agreement; (C) enter into any Material Contract or any Contract which cannot be assigned to Purchaser or may not be so assigned as a matter of Law; or (D) enter into any Contract for the purchase or lease of real property; (10) cancel any debts owed to or claims held with respect to the Business (including the settlement of any claims or litigation) other than in the ordinary course of the Business consistent with past practice; (11) accelerate or delay collection of any notes or accounts receivable generated by the Business in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of the Business consistent with past practice; (12) delay or accelerate payment of any account payable or other liability of the Business beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of the Business consistent with past practice; (13) allow the levels of raw materials, supplies, work-in-process, finished goods or other materials included in the inventory of the Business to vary in any material respect from the levels customarily maintained in the Business; (14) make any change in the compensation of the employees of the Business or in any employee benefit plan, program or agreement covering such employees, other than changes made in accordance with normal compensation practices and consistent with past compensation practices or as required by applicable Laws; (15) prepare or file any Return inconsistent with past practice or, on any such Return, take and position, make any election, or as set forth on Section 5.01 adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Returns in prior periods (including positions, elections or methods which would have the effect of the Parent Disclosure Letter, the Parent shall cause the Companies not deferring income to periods for which Purchaser is liable pursuant to Article VIII or accelerating deductions to periods for which either Seller is liable pursuant to Article VIII); or (16) agree to do any of the following, without Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed:foregoing. (ac) amendNotwithstanding anything to the contrary in this Agreement, authorizebetween the date hereof and the Closing Date, or propose to amend any of the Companies’ articles of incorporation or bylaws (or similar organizational documents); (b) either: (i) except for dividends paid to Parent, set any record or payment dates for, or make, declare, pay, or set aside for payment, any dividend on or in respect of, or declare or make any distribution (whether in cash, stock or property) on, any shares of capital stock or other equity interests of the Companies; (ii) purchase, redeem, or otherwise acquire, shares of capital stock or other equity interests or voting securities of the Companies or shall be permitted to transfer to Sellers any options, warrants, or rights to acquire any Seller Information that is in the possession of such shares or other equity interests or voting securities, or Company (iii) split, combine, reclassify, or otherwise amend the terms of any capital stock or other equity interests or voting securities of the Companies, or issue or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for shares of capital stock or other equity interests of the Companies;without retaining a copy thereof).