Common use of CONDUCT OF BUSINESS BY THE COMPANY PENDING THE ACQUISITION Clause in Contracts

CONDUCT OF BUSINESS BY THE COMPANY PENDING THE ACQUISITION. Unless N2H2 shall otherwise agree in writing, the business of the Company shall be conducted in and only in, and the Company shall not take any action except in, the ordinary course of business and in a manner consistent with past practice and in accordance with applicable law; and the Shareholders must ensure that the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the services of the current officers, employees and consultants of the Company and to preserve the current relationships of the Company with, and the goodwill of, customers, suppliers and other Persons with which the Company has significant business relations. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, the Company shall not, between 37 38 the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following without the prior written consent of N2H2: (a) amend or otherwise change its Constitution; (b) issue, sell, contract to issue or sell, pledge, dispose of, grant, encumber or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of (i) any shares of capital stock of any class of the Company, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest) of the Company, or (ii) any assets of the Company (except in the ordinary course of business and in a manner consistent with past practice); (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock or other securities, property or otherwise, with respect to any of its capital stock; (d) reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other securities; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any corporation, partnership, other business organization or division thereof or any material amount of assets; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business, consistent with past practice; (iv) authorize any single capital expenditure which is in excess of $10,000 or capital expenditures which are, in the aggregate, in excess of $20,000 for the Company taken as a whole; (v) enter into any agreement in which the obligation of the Company exceeds $10,000 or which shall not terminate within 180 days following execution; (vi) license any Company Technology or Intellectual Property Rights other than in the ordinary course of business, consistent with past practice; or (vii) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this subsection (e); (f) enter into or amend any employment, consulting or agency agreement, or increase the compensation payable or to become payable to its officers, employees, agents or consultants, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation , stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance, benefit or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting methods, policies or 38 39 procedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivable); (h) make any Tax election or settle or compromise any Tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice; (j) take any action that would or is reasonably likely to result in any of the representations and warranties of the Company set forth in this Agreement being untrue in any material respect, or in any covenant of the Company set forth in this Agreement being breached, or in any of the conditions to the Acquisition specified in Article V hereof not being satisfied; or (k) agree to do any of the foregoing.

CONDUCT OF BUSINESS BY THE COMPANY PENDING THE ACQUISITION. Unless N2H2 Prior to the Effective Time, unless Acquiring Entity or Department of Coffee and Social Affairs Limited shall otherwise agree in writing, writing or as otherwise contemplated by this Agreement or the business Additional Agreements: (a) The Business of the Company shall be conducted only in and only in, and the ordinary course; (b) The Company shall not take (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any action of its shares; (ii) amend its Operating Agreement except into effectuate the transactions contemplated in this Agreement or (iii) split, combine or reclassify the outstanding shares or declare, set aside or pay any dividend payable in cash, equity or property or make any distribution with respect to any such Shares; though it is acknowledged and understood by both parties that the Acquiring entity plans to effectuate a forward stock split. (c) The Company shall not (i) issue or agree to issue any additional Shares, or options, warrants or rights of any kind to acquire any Shares; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business and in a manner consistent with past practice and in accordance with applicable law; and the Shareholders must ensure that the combination; (d) The Company shall use its best commercially reasonable efforts to preserve intact the business organization of the Company, to keep available the services service of the current officersits present officers and key employees, employees and consultants of the Company and to preserve the current good will of those having business relationships with it; (e) The Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Acquiring Entity orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, "Acquisition Proposal" shall mean any proposal for an Acquisition or other business combination involving the Company with, and or for the goodwill of, customers, suppliers and acquisition of a substantial equity interest in it or any material assets of it other Persons with which the Company has significant business relations. By way of amplification and not limitation, except than as otherwise contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, the Company shall not, between 37 38 the date of this Agreement and the Closing, directly discussions or indirectly do, or propose to do, negotiations with any of the following without the prior written consent of N2H2: (a) amend or otherwise change its Constitution; (b) issue, sell, contract to issue or sell, pledge, dispose of, grant, encumber or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of (i) any shares of capital stock of any class of the Company, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest) of the Company, or (ii) any assets of the Company (except in the ordinary course of business and in a manner consistent with past practice); (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock or other securities, property or otherwise, Person conducted heretofore with respect to any of its capital stock; (d) reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other securities; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any corporation, partnership, other business organization or division thereof or any material amount of assets; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business, consistent with past practice; (iv) authorize any single capital expenditure which is in excess of $10,000 or capital expenditures which are, in the aggregate, in excess of $20,000 for the Company taken as a whole; (v) enter into any agreement in which the obligation of the Company exceeds $10,000 or which shall not terminate within 180 days following execution; (vi) license any Company Technology or Intellectual Property Rights other than in the ordinary course of business, consistent with past practice; or (vii) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this subsection (e); (f) enter into or amend any employment, consulting or agency agreement, or increase the compensation payable or to become payable to its officers, employees, agents or consultants, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation , stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance, benefit or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting methods, policies or 38 39 procedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivable); (h) make any Tax election or settle or compromise any Tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice; (j) take any action that would or is reasonably likely to result in any of the representations and warranties of the Company set forth in this Agreement being untrue in any material respect, or in any covenant of the Company set forth in this Agreement being breached, or in any of the conditions to the Acquisition specified in Article V hereof not being satisfied; or (k) agree to do any of the foregoing.; and

CONDUCT OF BUSINESS BY THE COMPANY PENDING THE ACQUISITION. Unless N2H2 shall otherwise agree in writingThe Company covenants and agrees that, between the date of this Agreement and the Closing Date the business of the Company shall be conducted in and only in, and the Company shall not take any action except in, the ordinary course of business and in a manner business, consistent with past practice and in accordance with applicable law; and the Shareholders must ensure that the practice. The Company shall use its best efforts to preserve intact the its business organization of the Companyorganization, to keep available the services of the current officers, employees and consultants of the Company consultants, and to preserve the current present relationships of the Company with, and the goodwill of, with customers, suppliers and other Persons persons with which the Company it has significant business relations. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, the Company shall not, between 37 38 the date of this Agreement and the ClosingClosing Date, directly or indirectly doindirectly, do or propose or agree to do, do any of the following without the prior written consent of N2H2Buyer: (a) amend or otherwise change its ConstitutionArticle of Incorporation or Bylaws or equivalent organizational documents; (b) issue, sell, contract to issue or sell, pledge, dispose of, grantencumber or lease, encumber or authorize the issuance, sale, pledge, dispositiondisposition or lease of, or grant or Encumbrance of an encumbrance on, (i) any shares of its capital stock of any class of the Companyclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (includinginterest, without limitation, any phantom interest) of the Companyit, or (ii) any assets of the Company (its assets, tangible or intangible, except in the ordinary course of business and in a manner consistent with past practice)practice and in transactions not exceeding US$5,000 in the aggregate; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock or other securitiesstock, property or otherwise, with respect to any of its capital stock; (d) reclassify, combine, split, subdivide, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other securitiesstock; (e) (i) acquire (including, without limitationincluding for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, partnership or other business organization or division thereof thereof, or make any material amount investment either by purchase of assets; stock or securities, contributions of capital or property transfer, or, purchase any property or assets of any other Person, (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, endorse or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances except in the ordinary course of business and consistent with past practice; advances, (iii) to the extent not prohibited by any other provision of this SECTION 5.1, enter into any contract or agreement Contract other than in the ordinary course of business, consistent with past practice; practice and providing for payments not exceeding US$5,000 in the aggregate over the term of such Contract, (iv) authorize any single capital expenditure which is in excess of $10,000 or make capital expenditures which areexceeding US$5,000 or purchases of inventories exceeding US$5,000, in each case in the aggregate, in excess of $20,000 for the Company taken as a whole; or (v) enter into engage in any agreement in which the obligation transaction with an Affiliate or Familial Affiliate of the Company exceeds $10,000 or which shall not terminate within 180 days following execution; (vi) license any Company Technology or Intellectual Property Rights other than in the ordinary course of business, consistent with past practice; or (vii) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this subsection (e);Company. (f) enter into or amend any employment, consulting or agency agreement, or increase the compensation payable or to become payable to its officers, officers or employees, agents or consultantsor, or except as presently bound to do, grant any severance or termination pay to, or enter into any employment or severance agreement with, any directorof its directors, officer officers or other employee of the Companyemployees, or establish, adopt, enter into or amend or take any action to accelerate any rights or benefits under which any collective bargaining, bonus, profit sharing, thrifttrust, compensation compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance, benefit severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directordirectors, officer officers or employeeemployees; (g) take any action, action other than reasonable and usual actions in the ordinary course of business and in a manner consistent with past practice, practice with respect to accounting methods, policies or 38 39 procedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivable)procedures; (h) make any Tax election or settle or compromise any Tax liability; (i) pay, discharge or satisfy any claimexisting claims, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)Liabilities, other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of due and payable Liabilities reflected or reserved against in its Financial Statements, as appropriate, or Liabilities incurred after the date hereof in the ordinary course of business and consistent with past practice; (ji) increase or decrease prices charged to its customers, except for previously announced price changes, or take any other action that would or is which might reasonably likely be expected to result in any material increase in the loss of the representations and warranties customers through non-renewal or termination of the Company set forth in this Agreement being untrue in any material respect, Contracts or in any covenant of the Company set forth in this Agreement being breached, or in any of the conditions to the Acquisition specified in Article V hereof not being satisfiedother causes; or (kj) agree agree, in writing or otherwise, to do take or authorize any of the foregoingforegoing actions or any action which would make any representation or warranty in ARTICLE 4 untrue or incorrect.

CONDUCT OF BUSINESS BY THE COMPANY PENDING THE ACQUISITION. Unless N2H2 The Seller covenants and agrees that, prior to the Closing, unless Buyer shall otherwise agree consent in writing, writing (such consent not to be unreasonably withheld or delayed) or except as expressly permitted or required pursuant to this Agreement: (a) The Seller shall cause the business businesses of the Company shall and the Company Subsidiaries to be conducted in and only in, and the Company shall not take any action except in, the ordinary and usual course of business and in a manner consistent with past practice and in accordance with applicable law; practices, and the Shareholders must ensure that Seller shall cause the Company shall and the Company Subsidiaries to use its best all commercially reasonable efforts to maintain and preserve intact the their respective business organization of the Companyorganizations and to maintain significant beneficial business relationships with suppliers, contractors, distributors, customers, licensors, licensees and others having business relationships with them and to keep available the services of their current key officers and employees; and (b) Without limiting the current officersgenerality of the foregoing Section 5.1(a), employees and consultants except as set forth in Section 5.1 of the Company Disclosure Letter, the Seller shall not permit the Company to, directly or indirectly, and to preserve the current relationships shall not permit any of the Company with, and the goodwill of, customers, suppliers and other Persons with which the Company has significant business relations. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, the Company shall not, between 37 38 the date of this Agreement and the ClosingSubsidiaries to, directly or indirectly doindirectly, do any of the following: (i) (A) acquire, sell, lease, transfer or dispose of any assets, rights or securities that are material to the Company and the Company Subsidiaries or terminate, cancel, materially modify or (B) enter into any material commitment, transaction, line of business or other agreement, in the case of clause (B) only outside of the ordinary course of business consistent with past practice; (ii) acquire by merging or consolidating with or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business, corporation, partnership, association or other business organization or division thereof; (iii) amend or propose to do, any amend the respective constituent documents of the following without Company or the prior written consent of N2H2: (a) amend or otherwise change its ConstitutionCompany Subsidiaries; (biv) declare, set aside or pay any dividend or other distribution payable in cash, capital stock, other equity securities, other ownership interests, property or otherwise with respect to any shares of its capital stock, other equity securities or other ownership interests; (v) purchase, redeem or otherwise acquire, or offer to purchase, redeem or otherwise acquire, any shares of its capital stock, other equity securities, other ownership interests or any options, warrants or rights to acquire any such stock, securities or interests; (vi) split, combine or reclassify any outstanding shares of its capital stock, other equity securities or other ownership interests; (vii) issue, sell, contract dispose of or authorize, propose or agree to issue or sell, pledge, dispose of, grant, encumber or authorize the issuance, salesale or disposition by the Company or any of the Company Subsidiaries of, pledge, disposition, grant or Encumbrance of (i) any shares of capital stock of any class of the Companyof, or any options, warrants, convertible securities warrants or other rights of any kind to acquire any shares of, or any securities convertible into or exchangeable for any shares of, its capital stock of such capital stockany class, or any other ownership interest (includingsecurities in respect of, without limitation, any phantom interest) of the Companyin lieu of, or (ii) in substitution for any assets of the Company (except in the ordinary course of business and in a manner consistent with past practice); (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock or other securities, property or otherwise, with respect to any class of its capital stock, other equity securities or other ownership interests outstanding on the date hereof; (dviii) reclassify, combine, split, subdivide, redeem, purchase modify the terms of any existing indebtedness for borrowed money or otherwise acquire, directly security issued by the Company or indirectly, any of its capital stock or other securitiesCompany Subsidiary; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any corporation, partnership, other business organization or division thereof or any material amount of assets; (iiix) incur any indebtedness for borrowed money or issue any debt securities or (other than pursuant to the Company’s existing line of credit in an aggregate amount not to exceed $500,000); (x) assume, guarantee or endorseguarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other Person, or make any loans or advances advances, except (A) to or for the benefit of the Company Subsidiaries or (B) for those not in excess of $1,000,000 in the aggregate; (xi) create or assume any material Lien on any material asset; (xii) authorize, recommend or propose any material change in its capitalization; (xiii) (A) take any action with respect to the grant of or increase in any severance or termination pay to any current or former director, executive officer or employee of the Company or any Company Subsidiary, (B) execute any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any such director, executive officer or employee of the Company or any Company Subsidiary, (C) increase the benefits payable under any existing severance or termination pay policies or employment agreements, (D) increase the compensation, bonus or other benefits of current or former directors, executive officers or employees of the Company or any Company Subsidiary, (E) adopt or establish any new employee benefit plan or amend in any material respect any existing employee benefit plan, (F) provide any material benefit to a current or former director, executive officer or employee of the Company or any Company Subsidiary not required by any existing agreement or employee benefit plan, other than for clauses (A), (B) and (D) above, in the case of employees who are not directors and executive officers, in the ordinary course of business, (G) take any action that would result in its incurring any obligation for any payments or benefits described in subsections (i), (ii) or (iii) of Section 3.10(j) (without regard to whether the transactions contemplated by this Agreement are consummated), except to the extent required in a written plan, contract or agreement in existence as of the date of this Agreement, or (H) hire any directors, officers, agents, consultants or employees unless such person is employed “at will” and hired in the ordinary course of business and consistent neither the Company nor any Company Subsidiary has any obligation to provide any severance benefits to such person upon termination of employment (it being understood and agreed that this Section 5.1(b)(xiii) shall not preclude the assignment and assumption of any employment agreement with past practiceDynamic Offshore Holding GP, LLC set forth on Section 6.2(f) of the Company Disclosure Letter in the form in effect immediately prior to the date hereof in accordance with Section 6.2(f)), ; (xiv) execute or amend (other than as required by existing employee benefit plans or employment agreements or by applicable law) in any material respect any employment, consulting, severance or indemnification agreement between the Company or any of the Company Subsidiaries and any of their respective directors, officers, agents, consultants or employees, or any collective bargaining agreement or other obligation to any labor organization or employee incurred or entered into by the Company or any of the Company Subsidiaries (it being understood and agreed that this Section 5.1(b)(xiv) shall not preclude the assignment and assumption of any employment agreement with Dynamic Offshore Holding GP, LLC set forth on Section 6.2(f) of the Company Disclosure Letter in the form in effect immediately prior to the date hereof in accordance with Section 6.2(f)); (xv) make any material changes in its reporting for Taxes or accounting methods, other than as required by GAAP or applicable law; (iii) make or rescind any material Tax election; make any material change to its method of reporting income, deductions, or other Tax items for Tax purposes; settle or compromise any Tax liability or enter into any contract transaction with an affiliate outside the ordinary course of business if such transaction would give rise to a material Tax liability; (xvi) settle, compromise or agreement otherwise resolve any litigation or other legal proceedings involving a payment of more than $100,000 in any one case by or to the Company or any of the Company Subsidiaries; (xvii) other than in the ordinary course of business, consistent with past practice; pay or discharge any claims, Liens or liabilities involving more than $500,000 individually or $1,000,000 in the aggregate, which are not reserved for or reflected on the balance sheets included in the Company Financial Statements; (ivxviii) authorize write off any single capital expenditure which is accounts or notes receivable in excess of $10,000 100,000; (xix) make or commit to make capital expenditures which are, in the aggregate, in excess of $20,000 for the aggregate budgeted amount set forth in the Company’s fiscal 2012 capital expenditure plan described in Section 5.1(b)(xix) of the Company taken Disclosure Letter previously provided to Buyer, except as a whole; may be required to (vA) continue operations on the drilling, completion or plugging of any well or any well operations for which the Company has consented to participate and is required to continue to participate pursuant to applicable agreements or (B) conduct emergency operations on any well pipeline or other facility; (xx) make or assume any Xxxxxx; (xxi) enter into any agreement in which the obligation of the Company exceeds $10,000 or which shall not terminate within 180 days following execution; (vi) license any Company Technology or Intellectual Property Rights new contracts to sell Hydrocarbons, other than in the ordinary course of businessbusiness at market pricing, consistent but in no event any having a duration longer than three months; (xxii) fail to timely meet its royalty payment obligations in connection with past practice; or its oil and gas leases; (viixxiii) enter into or amend any contract, agreement, arrangement or commitment that limits or arrangement with respect otherwise restricts the Company or any Company Subsidiary, or that would reasonably be expected to, after the Closing, limit or restrict Buyer or any Buyer Subsidiary or any of their respective affiliates or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic area material to the business or operations of Buyer or any matter set forth in this subsection (e)Buyer Subsidiary; (fxxiv) enter into or amend any employment, consulting or agency agreementknowingly take, or increase the compensation payable or agree to become payable commit to its officerstake, employees, agents or consultants, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation , stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance, benefit or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting methods, policies or 38 39 procedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivable); (h) make any Tax election or settle or compromise any Tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice; (j) take any action that would or is would reasonably likely be expected to result in any the failure of the representations and warranties of the Company a condition set forth in this Agreement being untrue in any material respectSection 7.2(a), (b) or (c) at, or in as of any covenant time prior to, the Closing Date, or that would materially impair the ability of Buyer, the Company set forth in this Agreement being breached, or in any of the conditions Seller to consummate the Acquisition specified in Article V accordance with the terms hereof not being satisfiedor materially delay such consummation; (xxv) amend the Company Registration Statement or make any filings with the SEC; or (kxxvi) take or agree in writing or otherwise to do take any of the foregoingactions precluded by Sections 5.1(a) or (b).