Common use of Conduct of Business by the Clause in Contracts

Conduct of Business by the. Company Pending the Merger. Except as otherwise contemplated by this Agreement or disclosed in Section 5.01 of the Company Disclosure Schedule, after the date hereof and prior to the Effective Time or earlier termination of this Agreement, unless Parent shall otherwise agree in writing, the Company shall, and shall cause its subsidiaries to: (a) conduct their respective businesses in the ordinary and usual course of business and in a manner substantially consistent with past practice; (b) not (i) amend or propose to amend their respective articles of incorporation or bylaws or equivalent constitutional documents, (ii) split, combine or reclassify their outstanding capital stock, or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise, except for the payment of dividends or distributions to the Company or a wholly owned subsidiary of the Company by a direct or indirect wholly owned subsidiary of the Company; (c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for any such capital stock, except that the Company may issue shares upon the exercise of Options outstanding on the date hereof; (d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business or borrowings under the existing credit facilities of the Company or of any of its subsidiaries up to the existing borrowing limit on the date hereof, and (B) borrowings to refinance existing indebtedness on terms which are reasonably acceptable to Parent; provided that in no event shall aggregate indebtedness of the Company and its subsidiaries, net of all cash and cash equivalents, exceed Two Million, Seven Hundred Seventy-Five Thousand Dollars ($2,775,000.00), (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock other than in connection with the exercise of outstanding Options pursuant to the terms of the Company Plans, (iii) make any acquisition of any assets or businesses other than expenditures for current assets for fixed or capital assets in each case in the ordinary course of business, (iv) without Parent's consent, acquire any property, (v) sell, pledge, dispose of or encumber any assets or businesses other than (A) sales of businesses or assets disclosed in Section 5.01 of the Company Disclosure Schedule, (B) pledges or encumbrances pursuant to existing credit facilities or other permitted borrowings, (C) sales or dispositions of businesses or assets as may be required by applicable law, and (D) sales or dispositions of assets in the ordinary course of business, or (vi) enter into any binding contract, agreement, commitment or arrangement with respect to any of the foregoing; (e) use best efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers and key employees, and use all reasonable efforts to preserve the goodwill and business relationships with customers and others having business relationships with them other than as expressly permitted by the terms of this Agreement; (f) not enter into, amend, modify or renew any employment, consulting, severance or similar agreement with, or grant any salary, wage or other increase in compensation or increase in any employee benefit to, any director or officer of the Company or of any of its subsidiaries, except (i) for changes that are required by applicable law, (ii) to satisfy obligations existing as of the date hereof, or (iii) in the ordinary course of business consistent with past practice; (g) not enter into, establish, adopt, amend or modify any pension, retirement, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare plan, agreement, program or arrangement, in respect of any director, officer or employee of the Company or of any of its subsidiaries, except, in each such case, as may be required by applicable law or by the terms of contractual obligations existing as of the date hereof, including any collective bargaining agreement; (h) not make expenditures in excess of expenditures permitted by the Company's last budget approved by the Board of Directors, including, but not limited to, capital expenditures, or enter into any binding commitment or contract to make expenditures, except (i) expenditures which the Company or its subsidiaries are currently contractually committed to make, (ii) other expenditures not exceeding $50,000 in each such case and $150,000 in the aggregate, (iii) for emergency repairs and other expenditures necessary in light of circumstances not anticipated as of the date of this Agreement which are necessary to avoid significant disruption to the Company's business or operations consistent with past practice (and, if reasonably practicable, after consultation with Parent), or (iv) for repairs and maintenance in the ordinary course of business consistent with past practice; provided; however, that all expenditures under Sections 1.10 of the Company Disclosure Schedule shall be permitted, subject to the terms of this Agreement; (i) not make, change or revoke any material Tax election unless required by law or make any agreement or settlement with any taxing authority regarding any material amount of Taxes or which would reasonably be expected to materially increase the obligations of the Company or the Surviving Corporation to pay Taxes in the future; (j) maintain all existing insurance policies of the Company and any of its subsidiaries in full force and effect.

Conduct of Business by the. Company Pending the Merger. Except Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement or disclosed in Section 5.01 Agreement: (i) the business of the Company Disclosure Schedule, after the date hereof and prior to the Effective Time or earlier termination of this Agreement, unless Parent shall otherwise agree in writing, the Company shall, and shall cause its subsidiaries to: (a) conduct their respective businesses be conducted only in the ordinary and usual course of business and in a manner substantially consistent with past practicecourse; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its Certificate of Incorporation or propose to amend their respective articles of incorporation By-laws; or bylaws or equivalent constitutional documents, (iiC) split, combine or reclassify their the outstanding capital stock, Company Stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock or property or make any distribution with respect to any such stock, property or otherwise, except other than the one for two reverse stock split of shares of Parent Common Stock (the payment of dividends or distributions to “Parent Stock Split”). (iii) the Company or a wholly owned subsidiary of the Company by a direct or indirect wholly owned subsidiary of the Company; shall not (cA) not issue, sell, pledge or dispose of, issue or agree to issue, sell, pledge or dispose of, issue any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for any such capital stockCompany Stock, except that the Company may to issue shares upon the exercise of Options outstanding on the date hereof; (d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business or borrowings under the existing credit facilities of the Company or of any of its subsidiaries up to the existing borrowing limit on the date hereof, and (B) borrowings to refinance existing indebtedness on terms which are reasonably acceptable to Parent; provided that in no event shall aggregate indebtedness of the Company and its subsidiaries, net of all cash and cash equivalents, exceed Two Million, Seven Hundred Seventy-Five Thousand Dollars ($2,775,000.00), (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock other than Common Stock in connection with the exercise of stock options outstanding Options pursuant to on the terms of the Company Plans, date hereof; (iiiB) make any acquisition acquire or dispose of any fixed assets or businesses acquire or dispose of any other substantial assets other than expenditures for current assets for fixed or capital assets in each case in the ordinary course of business, (iv) without Parent's consent, acquire any property, (v) sell, pledge, dispose of or encumber any assets or businesses other than (A) sales of businesses or assets disclosed in Section 5.01 of the Company Disclosure Schedule, (B) pledges or encumbrances pursuant to existing credit facilities or other permitted borrowings, ; (C) sales incur additional Indebtedness or dispositions of businesses any other liabilities or assets as may be required by applicable law, and (D) sales or dispositions of assets enter into any other transaction other than in the ordinary course of business, or ; (viD) enter into any binding contract, agreement, commitment or arrangement with respect to any of the foregoing; or (E) 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 combination; (eiv) the Company shall use its best efforts to preserve intact their respective the business organizations and goodwillorganization of the Company, to keep available the services service of their respective its present officers and key employees, and use all reasonable efforts to preserve the goodwill and business relationships with customers and others good will of those having business relationships with them it; and (v) 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). The Company will promptly advise Parent 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 a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as expressly permitted contemplated by the terms of this Agreement; (f) not enter into. The Company will immediately cease and cause to be terminated any existing activities, amend, modify discussions or renew negotiations with any employment, consulting, severance or similar agreement with, or grant person conducted heretofore with respect to any salary, wage or other increase in compensation or increase in any employee benefit to, any director or officer of the Company or of any of its subsidiaries, except (i) for changes that are required by applicable law, (ii) to satisfy obligations existing as of the date hereof, or (iii) in the ordinary course of business consistent with past practice; (g) not enter into, establish, adopt, amend or modify any pension, retirement, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare plan, agreement, program or arrangement, in respect of any director, officer or employee of the Company or of any of its subsidiaries, except, in each such case, as may be required by applicable law or by the terms of contractual obligations existing as of the date hereof, including any collective bargaining agreement; (h) not make expenditures in excess of expenditures permitted by the Company's last budget approved by the Board of Directors, including, but not limited to, capital expenditures, or enter into any binding commitment or contract to make expenditures, except (i) expenditures which the Company or its subsidiaries are currently contractually committed to make, (ii) other expenditures not exceeding $50,000 in each such case and $150,000 in the aggregate, (iii) for emergency repairs and other expenditures necessary in light of circumstances not anticipated as of the date of this Agreement which are necessary to avoid significant disruption to the Company's business or operations consistent with past practice (and, if reasonably practicable, after consultation with Parent), or (iv) for repairs and maintenance in the ordinary course of business consistent with past practice; provided; however, that all expenditures under Sections 1.10 of the Company Disclosure Schedule shall be permitted, subject to the terms of this Agreement; (i) not make, change or revoke any material Tax election unless required by law or make any agreement or settlement with any taxing authority regarding any material amount of Taxes or which would reasonably be expected to materially increase the obligations of the Company or the Surviving Corporation to pay Taxes in the future; (j) maintain all existing insurance policies of the Company and any of its subsidiaries in full force and effectforegoing.

Conduct of Business by the. Company Pending the Merger. COMPANY Except as otherwise set forth on Schedule 4.1, and except to the extent consented to by Buyer or as expressly permitted or contemplated by this Agreement or disclosed in Section 5.01 of Agreement, during the Company Disclosure Schedule, after period from the date hereof and prior of this Agreement to the Effective Time or earlier termination of this Agreement, unless Parent shall otherwise agree in writingTime, the Company shallshall carry, and shall cause its subsidiaries Subsidiaries to: , on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use reasonable efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it to the end that their goodwill and ongoing businesses shall be unimpaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, without Buyer's consent (which consent shall not be unreasonably withheld), during the period from the date of this Agreement to the Effective Time, Shareholders shall not permit and the Company shall not permit any of its Subsidiaries to: (a) conduct their respective businesses in the ordinary and usual course of business and in a manner substantially consistent with past practice; (b) not (i) amend or propose to amend their respective articles of incorporation or bylaws or equivalent constitutional documents, (ii) split, combine or reclassify their outstanding capital stock, or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise, except for the payment of dividends or distributions to the Company or a wholly owned subsidiary of the Company by a direct or indirect wholly owned subsidiary of the Company; (c) not issue, sell, pledge or dispose ofon, or agree to issue, sell, pledge or dispose make any other distributions in respect of, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for any such its capital stock, except that for distributions of current year subchapter "S" corporation earnings in amounts determined by the Company may issue shares upon Company's Board of Directors to reflect the exercise of Options outstanding taxes payable on the date hereof; (d) not such earnings, (i) incur split, combine or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business or borrowings under the existing credit facilities of the Company or of reclassify any of its subsidiaries up to capital stock or issue or authorize the existing borrowing limit on the date hereofissuance of any other securities in respect of, and (B) borrowings to refinance existing indebtedness on terms which are reasonably acceptable to Parent; provided that in no event shall aggregate indebtedness lieu of the Company and or in substitution for shares of its subsidiariescapital stock, net of all cash and cash equivalents, exceed Two Million, Seven Hundred Seventy-Five Thousand Dollars ($2,775,000.00), or (ii) redeem, purchase, acquire redeem or offer to purchase or otherwise acquire any shares of its capital stock or any optionsother securities, or any rights, warrants or rights options to acquire any such shares or other securities; <PAGE> - 33 - (b) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock stock, any other voting securities or any security securities convertible into into, or exchangeable for any rights, warrants or options to acquire, any such shares, voting securities or convertible securities; (c) amend its capital stock Certificate of Incorporation or By-laws or other than in connection with the exercise of outstanding Options pursuant comparable organization documents; (d) acquire or agree to the terms acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the Company Plansassets of, (iii) make or by any acquisition of other manner, any assets business or businesses other than expenditures for current assets for fixed or capital assets in each case in the ordinary course of businessany corporation, (iv) without Parent's consentpartnership, acquire any propertyjoint venture, (v) sell, pledge, dispose of or encumber any assets or businesses other than (A) sales of businesses or assets disclosed in Section 5.01 of the Company Disclosure Schedule, (B) pledges or encumbrances pursuant to existing credit facilities association or other permitted borrowings, (C) sales business organization or dispositions of businesses or assets as may be required by applicable law, and (D) sales or dispositions of assets in the ordinary course of businessdivision thereof, or (viii) enter into any binding contract, agreement, commitment or arrangement with respect to any of the foregoing; (e) use best efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers and key employees, and use all reasonable efforts to preserve the goodwill and business relationships with customers and others having business relationships with them other than as expressly permitted by the terms of this Agreement; (f) not enter into, amend, modify or renew any employment, consulting, severance or similar agreement with, or grant any salary, wage or other increase in compensation or increase in any employee benefit to, any director or officer of the Company or of any of its subsidiaries, except (i) for changes assets that are required by applicable lawmaterial, (ii) to satisfy obligations existing as of the date hereof, individually or (iii) in the ordinary course of business consistent with past practice; (g) not enter into, establish, adopt, amend or modify any pension, retirement, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare plan, agreement, program or arrangement, in respect of any director, officer or employee of the Company or of any of its subsidiaries, except, in each such case, as may be required by applicable law or by the terms of contractual obligations existing as of the date hereof, including any collective bargaining agreement; (h) not make expenditures in excess of expenditures permitted by the Company's last budget approved by the Board of Directors, including, but not limited to, capital expenditures, or enter into any binding commitment or contract to make expenditures, except (i) expenditures which the Company or its subsidiaries are currently contractually committed to make, (ii) other expenditures not exceeding $50,000 in each such case and $150,000 in the aggregate, (iii) for emergency repairs and other expenditures necessary in light of circumstances not anticipated as of the date of this Agreement which are necessary to avoid significant disruption to the Company's business or operations consistent with past practice (and, if reasonably practicable, after consultation with Parent), or (iv) for repairs and maintenance except purchases in the ordinary course of business consistent with past practice; provided; however(e) sell, that all expenditures under Sections 1.10 of the Company Disclosure Schedule shall be permittedlease, license, mortgage or otherwise encumber or subject to any Lien (other than Liens pursuant to its existing credit facilities) or otherwise dispose of any of its properties or assets which are material, individually or in the terms aggregate, to the Company, except in the ordinary course of this Agreement; business consistent with past practice; (f) (i) not makeincur any indebtedness for borrowed money or guarantee any such indebtedness of another person, change issue or revoke sell any debt securities or warrants or other rights to acquire any debt securities, or guarantee any debt securities of another person, except for borrowings under its existing credit facilities in amounts necessary to make distributions for taxes as described in Section 4.1(a), or for working capital purposes in an aggregate amount of less than $1,000,000, the endorsement of checks in the normal course of business and the extension of credit in the normal course of business, or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to employees in accordance with past practice; (g) except for the items currently contracted for by the Company, make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $50,000 or, in the aggregate, are in excess of $100,000; (h) make any material Tax election unless or settle or compromise any material income Tax liability; (i) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued or contingent, asserted or unasserted), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice 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 <PAGE> - 34 - the Financial Statements or incurred in the ordinary course of business consistent with past practice; (j) except in the ordinary course of business, modify, amend or terminate any Company Contract, or waive, release or assign any material rights or claims; (k) except as required to comply with applicable law, (i) adopt, enter into or amend any Company Plan, (ii) increase in any material manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee of the Company or its Subsidiaries (except for normal increases or bonuses in the ordinary course of business consistent with past practice) or (iii) grant any awards under any Employee Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Employee Benefit Plan or agreement or awards made thereunder); (l) other than as required by law or GAAP, make any agreement material change to its accounting policies or settlement with procedures; or (m) authorize any taxing authority regarding of, or commit or agree to take any material amount of Taxes or which would reasonably be expected to materially increase of, the obligations of the Company or the Surviving Corporation to pay Taxes in the future; (j) maintain all existing insurance policies of the Company and any of its subsidiaries in full force and effectforegoing actions.

Conduct of Business by the. Company Pending the Merger. Except as otherwise contemplated by this Agreement or disclosed in Section 5.01 of the Company Disclosure Schedule, after the date hereof and prior to the Effective Time or earlier termination of this Agreement, unless Parent shall otherwise agree in writing, the Company shall, and shall cause its subsidiaries to: (a) conduct their respective businesses in the ordinary and usual course of business and in a manner substantially consistent with past practice, including with respect to casino credit policies; (b) not (i) amend or propose to amend their respective articles certificates of incorporation or bylaws or equivalent constitutional documents, (ii) split, combine or reclassify their outstanding capital stock, stock or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise, except for the payment of dividends or distributions to the Company or a wholly wholly-owned subsidiary of the Company by a direct or indirect wholly wholly-owned subsidiary of the Company; (c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, of their capital stock of any class or any debt or equity securities convertible into or exchangeable for any such capital stock, except that the Company may issue shares upon the exercise of Options outstanding on the date hereof; (d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business or borrowings under the existing credit facilities of the Company or of any of its subsidiaries up to the existing borrowing limit on the date hereof, and (B) borrowings to refinance existing indebtedness on terms which are reasonably acceptable to Parent; provided that in no event shall aggregate indebtedness of the Company and its subsidiaries, net of all cash and cash equivalents, exceed Two Million, Seven Hundred Seventy-Five Thousand Dollars ($2,775,000.00)2.15 billion, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock other than in connection with the exercise of outstanding Options pursuant to the terms of the Company Option Plans, (iii) make any acquisition of any assets or businesses other than expenditures for current assets in the ordinary course of business and expenditures for fixed or capital assets in each case in the ordinary course of business, (iv) without Parent's consent, acquire any propertygaming property within 150 miles of Detroit, Michigan, (v) sell, pledge, dispose of or encumber any assets or businesses other than (A) sales of businesses or assets disclosed in Section 5.01 of the Company Disclosure Schedule, (B) pledges or encumbrances pursuant to existing credit facilities Existing Credit Facilities or other permitted borrowings, (C) sales or dispositions of businesses or assets consented to in writing by Parent (which consent shall not be unreasonably withheld) or for which consent is not denied within 72 hours after the Company notifies Parent (such notice to be delivered during business hours on a business day) in writing that it desires to effect such sale or disposition, (D) sales of real estate, assets or facilities for cash consideration (including any debt assumed by the buyer of such real estate, assets or facilities) to non-affiliates of the Company of less than $1,000,000 in each such case and $7,000,000 in the aggregate, (E) sales or dispositions of businesses or assets as may be required by applicable law, and (DF) sales or dispositions of assets in the ordinary course of business, or (vi) except as contemplated by the following proviso, enter into any binding contract, agreement, commitment or arrangement with respect to any of the foregoing; (e) use best all reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers and key employees, and use all reasonable efforts to preserve the goodwill and business relationships with customers and others having business relationships with them other than as expressly permitted by the terms of this Agreement; (f) not enter into, amend, modify or renew any employment, consulting, severance or similar agreement agreements with, or grant any salary, wage or other increase in compensation or increase in any employee benefit to, any director directors or officer officers of the Company or of any of its subsidiaries, except (i) for changes that are required by applicable law, (ii) to satisfy obligations existing as of the date hereof, or (iii) in the ordinary course of business consistent with past practice; (g) not enter into, establish, adopt, amend or modify any pension, retirement, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare plan, agreement, program or arrangement, in respect of any directordirectors, officer officers or employee employees of the Company or of any of its subsidiaries, except, in each such case, as may be required by applicable law or by the terms of contractual obligations existing as of the date hereofhereof , including any collective bargaining agreement; (h) not make expenditures in excess of expenditures permitted by the Company's last budget approved by the Board of Directorsexpenditures, including, but not limited to, capital expenditures, or enter into any binding commitment or contract to make expenditures, except (i) expenditures which the Company or its subsidiaries are currently contractually committed to make, (ii) (A) expenditures relating to the Company's Le Jardin project and Xxxxx Xxxx Theatre, meeting, convention and exhibit space project, in each case in accordance with current plans, (B) expenditures not exceeding $1,000,000 in connection with the Bellagio Spa Tower project, and (C) other expenditures not exceeding $50,000 in each such case and 3,000,000 individually or $150,000 80,000,000 in the aggregate, (iii) for emergency repairs and other expenditures necessary in light of circumstances not anticipated as of the date of this Agreement which are necessary to avoid significant disruption to the Company's business or operations consistent with past practice (and, if reasonably practicable, after consultation with Parent), or (iv) for repairs and maintenance in the ordinary course of business consistent with past practice; provided; however. With respect to the subject matter of this paragraph (h), that all expenditures under Sections 1.10 of if the Company Disclosure Schedule requests approval of Parent to exceed the limits set forth herein, Parent shall be permitted, subject respond to the terms such request and grant or withhold approval promptly following receipt of this Agreementsuch request; (i) not make, change or revoke any material Tax election unless required by law or make any agreement or settlement with any taxing authority regarding any material amount of Taxes or which would reasonably be expected to materially increase the obligations of the Company or the Surviving Corporation to pay Taxes in the future; (j) maintain all existing insurance policies of the Company and any of its subsidiaries in full force and effect.

Conduct of Business by the. Company Pending the Merger. Except as otherwise contemplated by The Company covenants and agrees that, between the date of this Agreement and the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1 (the “Pre-Closing Period”), except (i) as may be required by Law, (ii) as may be agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed or disclosed conditioned), (iii) as may be expressly permitted pursuant to this Agreement, or (iv) as set forth in Section 5.01 Schedule 5.1 of the Company Disclosure ScheduleSchedules, after (w) the date hereof and prior to the Effective Time or earlier termination business of this Agreement, unless Parent shall otherwise agree in writing, the Company shall, and shall cause its subsidiaries to: (a) conduct their respective businesses shall be conducted only in the ordinary and usual course of business and in a manner substantially consistent with past practicepractice in all material respects; (x) the Company shall use its reasonable best efforts to preserve intact its business organization, to keep available the services of its officers and employees and to preserve the relationships with those persons having business relationships with the Company or any of its subsidiaries, in each case in the ordinary course of business consistent with past practice and (y) without limiting the generality of the foregoing, the Company shall not, and shall not permit any of its subsidiaries, to: (a) amend or otherwise change the Amended and Restated Certificate of Incorporation or the Amended and Restated Bylaws of the Company (or such equivalent organizational or governing documents of any of its subsidiaries), or enter into or adopt any “poison pill” or similar stockholder rights plan; (b) not (i) amend issue, sell, pledge, dispose, encumber, grant, confer or propose to amend their respective articles award any shares of incorporation its or bylaws or equivalent constitutional documents, (ii) split, combine or reclassify their outstanding its subsidiaries’ capital stock, or any options, warrants, restricted stock units, convertible securities or other rights of any kind to acquire any shares of its or its subsidiaries’ capital stock or take any action not otherwise contemplated by this Agreement to cause to be exercisable any otherwise unexercisable option under any existing stock plan; provided, however, that (x) the Company may issue shares upon the exercise of any Company Option outstanding as of the date hereof and (y) the Company may exchange LLC Units solely as required by and consistent with Section 2.1(e); (ii) except as may be required by applicable Law or applicable organizational or governing documents, convene any special meeting (or any adjournment thereof) of the stockholders of the Company; or (iii) enter into any agreement or understanding or arrangement or other contract with respect to the voting or registration of the shares of the Company’s or its subsidiaries’ capital stock or other securities or equity interests (other than entry into an Acceptable Confidentiality Agreement); (c) (i) declare, set aside authorize, make or pay any dividend or distribution other distribution, payable in cash, stock, property or otherwise, except for the payment of dividends or distributions with respect to the Company Company’s or a wholly owned subsidiary any of the Company its subsidiaries’ capital stock, voting securities or other equity interests, other than (A) dividends and distributions paid by a direct or indirect wholly owned subsidiary of the Company; (c) not issue, sell, pledge or dispose of, or agree Company to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for any such capital stock, except that the Company may issue shares upon the exercise of Options outstanding on the date hereof; (d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings its parent in the ordinary course of business or borrowings under the existing credit facilities of the Company or of any of its subsidiaries up to the existing borrowing limit on the date hereof, and (B) borrowings to refinance existing indebtedness on terms which are reasonably acceptable to Parent; provided that in no event shall aggregate indebtedness of the Company and its subsidiaries, net of all cash and cash equivalents, exceed Two Million, Seven Hundred Seventy-Five Thousand Dollars ($2,775,000.00), (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock other than in connection with the exercise of outstanding Options pursuant to the terms of the Company Plans, (iii) make any acquisition of any assets or businesses other than expenditures for current assets for fixed or capital assets in each case in the ordinary course of business, (iv) without Parent's consent, acquire any property, (v) sell, pledge, dispose of or encumber any assets or businesses other than (A) sales of businesses or assets disclosed in Section 5.01 of the Company Disclosure Schedule, (B) pledges or encumbrances pursuant to existing credit facilities or other permitted borrowings, (C) sales or dispositions of businesses or assets as may be required by applicable law, and (D) sales or dispositions of assets in the ordinary course of business, or (vi) enter into any binding contract, agreement, commitment or arrangement with respect to any of the foregoing; (e) use best efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers and key employees, and use all reasonable efforts to preserve the goodwill and business relationships with customers and others having business relationships with them other than as expressly permitted by the terms of this Agreement; (f) not enter into, amend, modify or renew any employment, consulting, severance or similar agreement with, or grant any salary, wage or other increase in compensation or increase in any employee benefit to, any director or officer of the Company or of any of its subsidiaries, except (i) for changes that are required by applicable law, (ii) to satisfy obligations existing as of the date hereof, or (iii) in the ordinary normal course of business consistent with past practice; , (gB) not enter into“Tax Distributions” contemplated by the Limited Liability Company Agreement of Norcraft Companies, establishLLC and (C) the TRA Termination Payments under the Company Tax Receivable Agreements (or substantially equivalent payments pursuant to the Tax Receivable Termination Agreements) immediately prior to the Merger Closing; (ii) split, adoptcombine or reclassify any of its capital stock, amend voting securities or modify other equity interests, or issue or authorize the issuance of any pensionother securities in respect of, retirementin lieu of or in substitution for shares of its capital stock, stock voting securities or other equity interests; or (iii) purchase, savingsredeem or otherwise acquire any shares of capital stock, profit sharing, deferred compensation, consulting, bonus, group insurance voting securities or other employee benefitequity interests, incentive or welfare plan, agreement, program or arrangement, in respect of any director, officer or employee other securities of the Company or any rights, warrants, calls or options to acquire any such shares of any of its subsidiariescapital stock, except, in each such case, as may be required by applicable law voting securities or by the terms of contractual obligations existing as of the date hereof, including any collective bargaining agreement; (h) not make expenditures in excess of expenditures permitted by the Company's last budget approved by the Board of Directors, including, but not limited to, capital expenditures, or enter into any binding commitment or contract to make expendituresother equity interests, except (i) expenditures which the Company or its subsidiaries are currently contractually committed to make, (ii) other expenditures not exceeding $50,000 in each such case and $150,000 in the aggregate, (iii) for emergency repairs and other expenditures necessary in light of circumstances not anticipated as of the date of contemplated by this Agreement which are necessary to avoid significant disruption to or the Company's business or operations consistent with past practice (and, if reasonably practicable, after consultation with Parent), or (iv) for repairs and maintenance in the ordinary course of business consistent with past practice; provided; however, that all expenditures under Sections 1.10 of the Company Disclosure Schedule shall be permitted, subject to the terms of this Exchange Agreement; (i) not make, change or revoke any material Tax election unless required by law or make any agreement or settlement with any taxing authority regarding any material amount of Taxes or which would reasonably be expected to materially increase the obligations of the Company or the Surviving Corporation to pay Taxes in the future; (j) maintain all existing insurance policies of the Company and any of its subsidiaries in full force and effect.

Conduct of Business by the. Company Pending the Merger. Except as otherwise contemplated by this Agreement or disclosed in Section 5.01 of the Company Disclosure Schedule, after the date hereof and prior to the Effective Time or earlier termination of this AgreementTime, unless Parent without Parent's prior consent (which shall otherwise agree in writingnot be unreasonably withheld), the Company shall, and shall cause its subsidiaries to: (a) conduct their respective businesses in the ordinary and usual course of business and in a manner substantially consistent with past practice; (b) not (i) amend or propose to amend their respective articles of incorporation or bylaws by-laws or equivalent constitutional documents, (ii) split, combine or reclassify their outstanding capital stock, (iii) effect any merger, corporate restructuring or liquidation of the Company or any of its subsidiaries, or (iiiiv) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise, except for the payment of dividends or distributions to the Company or its subsidiary by a wholly owned subsidiary of the Company by a direct or indirect wholly owned subsidiary and regular quarterly dividends on Company Common Stock of the Companynot more than $.08 per share declared and paid at times consistent with past practice; (c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, of their capital stock of any class or any debt or equity securities convertible into or exchangeable for any such capital stock, except that the Company may issue shares upon the exercise of Options outstanding on the date hereof; (d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business or borrowings under the existing credit facilities of the Company or of any of its subsidiaries consistent with past practice up to the amount of the existing borrowing limit of the Company's existing credit facilities on the date hereof, hereof (which is $150 million) and (B) borrowings to refinance existing indebtedness on terms which are reasonably acceptable to Parent; provided that in no event shall aggregate indebtedness of the Company and its subsidiaries, net of all cash and cash equivalents, exceed Two Million, Seven Hundred Seventy-Five Thousand Dollars ($2,775,000.00)market terms, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock other than in connection with the exercise of outstanding Options pursuant to the terms of the Company Option Plans, or to use for the 401(k) Plan, the DRP or the ESPP, (iii) make any acquisition of any assets or businesses in excess of the amounts set forth in Section 5.01 of the Company Disclosure Schedule other than expenditures for current assets in the ordinary course of business and expenditures for fixed or capital assets in each case in the ordinary course of businessbusiness consistent with Section 5.01(i) below, or (iv) without Parent's consent, acquire any property, (v) sell, pledge, lease, dispose of or encumber any material assets or businesses other than (A) sales of businesses or assets disclosed in Section 5.01 of the Company Disclosure Schedule, (B) pledges or encumbrances pursuant to existing credit facilities Existing Credit Facilities or other permitted borrowings, (C) sales or dispositions of businesses or assets as may be required by applicable law, and or (D) sales or dispositions of assets in the ordinary course of business, or (vi) enter into any binding contract, agreement, commitment or arrangement with respect to any of the foregoingidle facilities and related assets; (e) use best all reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers and key employees, and use all reasonable efforts to preserve the goodwill and business relationships with customers customers, suppliers and others having business relationships with them other than as expressly permitted contemplated by the terms of this Agreement; (f) not enter into, amend, modify into or renew amend any employment, consultingseverance, severance or similar agreement with, or grant any salary, wage special pay arrangement with respect to termination of employment or other increase in compensation similar arrangements or increase in agreements with any employee benefit todirectors, officers or key employees or with any director or officer of the Company or of any of its subsidiariesother persons, except (i) for changes that are as required by to comply with applicable law, (ii) pursuant to satisfy obligations previously existing as of the date hereof, contractual arrangements or policies or (iii) employment agreements entered into with a person who is hired by the Company or one of its subsidiaries after the date hereof in the ordinary course of business, provided that such employment agreement would not qualify as a Material Employment Agreement; (g) not increase the salary or monetary compensation of any person except for increases in the ordinary course of business consistent with past practice; (g) not enter into, establish, adopt, amend practice or modify any pension, retirement, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare plan, agreement, program or arrangement, in respect of any director, officer or employee of the Company or of any of its subsidiaries, except, in each such case, except as may be required by to comply with applicable law or by the terms of pursuant to previously existing contractual obligations existing as of the date hereof, including any collective bargaining agreementarrangements; (h) not adopt, enter into or amend to increase benefits or obligations of any Plan or Material Employment Agreement, except (i) as required to comply with changes in applicable law, (ii) any of the foregoing involving any such then existing plans, agreements, trusts, funds or arrangements of any company acquired after the date hereof or (iii) as required pursuant to existing contractual arrangements; (i) not make expenditures in excess of expenditures permitted by the Company's last budget approved by the Board of Directors, including, but not limited to, capital expenditures, or enter into any binding commitment or contract to make expenditures, except (i) such expenditures which the Company or its subsidiaries are currently contractually committed to make, (ii) other expenditures not exceeding $50,000 in each such case and $150,000 in the aggregate, (iii) for emergency repairs and other expenditures necessary in light of circumstances not anticipated as excess of the date of this Agreement which are necessary to avoid significant disruption to the Company's business or operations consistent with past practice (and, if reasonably practicable, after consultation with Parent), or (iv) amount specified for repairs years 2000 and maintenance 2001 in the ordinary course of business consistent with past practice; provided; however, that all expenditures under Sections 1.10 Section 5.01 of the Company Disclosure Schedule shall be permitted, subject to the terms of this AgreementSchedules; (j) not enter into any contract or commitment (i) providing for the provision of products by the Company or any of its subsidiaries that has a term of more than three years and which is reasonably expected to generate more than $25 million in revenues over its term or more than $10 million in revenues per year or (ii) providing for the purchase of services by the Company or any of its subsidiaries that has a term of more than one year and which is reasonably expected to involve payments of more than $25 million over its term; (k) not make, change or revoke any material Tax election unless required by law or make any agreement or settlement with any taxing authority regarding any material amount of Taxes or which would reasonably be expected to materially increase the obligations of the Company or the Surviving Corporation to pay Taxes in the future; (ji) maintain all prepare or file any Tax Return inconsistent with past practice or (ii) on such Tax Return, take any position, make any election or adopt any method that is inconsistent with position taken, elections made or methods used in preparing and filing similar Tax Returns in prior years, other than, in either case, as required by law and other than in the ordinary course; (m) make any change in accounting policies, procedures, methods, assumptions or principles (other than changes required by law or generally accepted accounting principles); (n) amend or modify in any material respect any existing insurance policies material Contract except in the ordinary course of business and except for extensions of existing agreements; (o) enter into any settlement or similar agreement with respect to any Claim to which the Company and or any of its subsidiaries is a party, which settlement or agreement, involves the payment by the Company of an amount in full force and effectexcess of the amount set forth in Section 5.01 of the Company Disclosure Schedule; or (p) enter into any agreement to do any of the foregoing.

Conduct of Business by the. Company Pending the Merger. Except as otherwise contemplated by The Company covenants and agrees that, between the date of this Agreement and the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (i) as may be required by Law, (ii) as may be agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed or disclosed conditioned), (iii) as may be expressly required or permitted pursuant to this Agreement, or (iv) as set forth in Section 5.01 6.1 of the Company Disclosure ScheduleLetter, after (x) the date hereof business of the Company and prior its Subsidiaries shall be conducted in the ordinary course of business consistent with past practice, and to the Effective Time or earlier termination of this Agreement, unless Parent shall otherwise agree in writingextent consistent therewith, the Company shallshall use its commercially reasonable efforts to preserve substantially intact the material components and assets of its current business organization, and to preserve in all material respects its present relationships with key customers, suppliers, employees and other persons with which it has material business relations; and (y) the Company shall not, and shall cause not permit any of its subsidiaries Subsidiaries to: (a) conduct their respective businesses in amend or otherwise change the ordinary and usual course articles of business and in a manner substantially consistent with past practiceincorporation or bylaws of the Company (or such equivalent organizational or governing documents of any of its Subsidiaries); (b) not (i) amend or propose to amend their respective articles of incorporation or bylaws or equivalent constitutional documents, (ii) split, combine combine, reclassify, redeem, repurchase or reclassify their outstanding otherwise acquire or amend the terms of any capital stock or other equity interests or rights; (c) issue, sell, pledge, dispose, encumber or grant any shares of its or its Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of its or its Subsidiaries’ capital stock except (iiii) in connection with the Rights Agreement and (ii) for transactions among the Company and its direct or indirect wholly owned Subsidiaries or among the Company’s direct or indirect wholly owned Subsidiaries; provided, however, that the Company may issue shares of Company Common Stock upon the exercise of any vested Company Option as is outstanding as of the date hereof; (d) declare, set aside authorize, make or pay any dividend or distribution other distribution, payable in cash, stock, property or otherwise, except for with respect to the payment Company’s or any of its Subsidiaries’ capital stock or other equity interests, other than dividends or distributions paid by any Subsidiary of the Company to the Company or a any wholly owned subsidiary of the Company by a direct or indirect wholly owned subsidiary Subsidiary of the Company; (ce) not issue, sell, pledge or dispose of, or agree except as required pursuant to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants or rights existing written Company Benefit Plans that are set forth in Section 4.12(a) of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for any such capital stock, except that the Company may issue shares upon the exercise of Options outstanding on the date hereof; (d) not (i) incur Disclosure Letter or become contingently liable with respect to any indebtedness written offer letters for borrowed money other than (A) borrowings newly hired or promoted employees entered into in the ordinary course of business (in each case whose aggregate compensation is less than $80,000 annually), (A) materially increase the compensation payable or borrowings under to become payable or benefits provided or to be provided to (x) any member of the existing credit facilities Company’s board of directors, or (y) any current or former employees or independent contractors of the Company or of any of its subsidiaries up to the existing borrowing limit on the date hereofSubsidiaries, and (B) borrowings except under Company Benefit Plans set forth in Section 4.12(a) of the Company Disclosure Letter applicable to refinance existing indebtedness on terms newly hired employees hired to fill vacancies in the ordinary course of business of the Company, grant the opportunity to participate in any severance or termination pay plans or (C) establish, adopt, enter into or materially amend any Company Benefit Plan (or any arrangement which are reasonably acceptable to Parent; provided in existence as of the date hereof would constitute a Company Benefit Plan), plan, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees of the Company or any of its Subsidiaries or any of their respective beneficiaries; (f) implement any employee layoffs that would require notice under the Worker Adjustment and Retraining Notification Act of 1988, as amended (the “WARN Act”), or any similar foreign state or local Law; (g) acquire (including by merger, consolidation, or acquisition of stock or assets), except in no event shall aggregate indebtedness respect of any merger, consolidation, business combination among the Company and its subsidiarieswholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, net of all cash and cash equivalentsany corporation, exceed Two Millionpartnership, Seven Hundred Seventy-Five Thousand Dollars ($2,775,000.00)limited liability company, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock other business organization or any optionsdivision or material amount of assets thereof, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock sell, lease, license (other than in connection with the exercise of outstanding Options pursuant to the terms of the Company Plans, (iii) make any acquisition of any assets or businesses other than expenditures for current assets for fixed or capital assets in each case nonexclusive license granted in the ordinary course of business), (iv) without Parent's consentabandon, acquire any property, (v) sell, pledge, permit to lapse or expire or otherwise subject to a Lien other than a Permitted Lien or otherwise dispose of any material properties, rights (including Company Intellectual Property Rights) or encumber any assets of the Company or businesses its Subsidiaries other than (A1) sales of businesses or assets disclosed in Section 5.01 of the Company Disclosure Schedule, (B) pledges or encumbrances pursuant to existing credit facilities or other permitted borrowings, (C) sales or dispositions of businesses or assets as may be required by applicable law, and (D) sales or dispositions of assets inventory in the ordinary course of business, business consistent with past practice or (vi2) enter into any binding contract, agreement, commitment or arrangement with respect pursuant to any agreements existing as of the foregoing; (edate hereof and set forth in Section 4.16(a) use best efforts to preserve intact their respective business organizations of the Company Disclosure Letter or entered into after the date hereof and goodwill, keep available set forth in Section 4.16(a) of the services of their respective present officers and key employees, and use all reasonable efforts to preserve the goodwill and business relationships Company Disclosure Letter in accordance with customers and others having business relationships with them other than as expressly permitted by the terms of this Agreement; (fh) disclose any trade secret or confidential information to any Person outside of the ordinary course of business consistent with past practice; (i) incur, or amend in any material respect the terms of, any Company Indebtedness or assume or guarantee any such Company Indebtedness for any Person, provided that the Company shall be authorized to incur additional indebtedness under existing lines of credit in an amount not to exceed $500,000 in the aggregate, and provided further that the Company shall provide prompt notice to the Parent of each and every such incurrence of additional indebtedness after it has incurred $100,000 in the aggregate; (j) enter into, amendmodify, modify amend or renew terminate (1) any employmentCompany Material Contract other than in the ordinary course of business (except as expressly permitted in Section 6.5(d)) or (2) any Contract which if so entered into, consultingmodified, severance amended or similar agreement withterminated could be reasonably likely to (x) have a Company Material Adverse Effect, or grant any salary, wage or other increase in compensation or increase (y) impair in any employee benefit to, any director or officer material respect the ability of the Company to perform its obligations under this Agreement or (z) prevent or materially delay the consummation of the transactions contemplated by this Agreement; (k) make any material change to its methods of its subsidiariesaccounting in effect at December 31, 2016, except (i) for changes that are as required by applicable lawGAAP (or any interpretation thereof), Regulation S-X or a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization) or (ii) to satisfy obligations existing as required by a change in applicable Law; (l) adopt or enter into a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization; (m) settle or compromise any litigation other than settlements or compromises of litigation where the amount paid (less the amount reserved for such matters by the Company or otherwise covered by insurance) in settlement or compromise, in each case, does not exceed the amount set forth in Section 6.1(m) of the date hereofCompany Disclosure Letter; (n) other than in the ordinary course of business or consistent with past practice, make or change any Tax election, change any method of Tax accounting, settle or compromise any material Tax liability, file any amended Tax Return, enter into any closing agreement with respect to any material Tax or surrender any right to claim a refund for a material amount of Tax; (iiio) take any action that would reasonably be expected to result in any of the conditions set forth in Article VII not being satisfied or that would impair the ability of the Company to consummate the Merger in accordance with the terms hereof or materially delay such consummation; (p) make any loans, advances or capital contributions to or investments in any other Person; (q) hire any new employees other than non-officer employees in the ordinary course of business consistent with past practice; (gr) not enter into, establish, adopt, amend or modify terminate any pension, retirement, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare plan, agreement, program or arrangement, in respect of any director, officer or key employee of the Company or of any of its subsidiaries, except, in each such case, as may be required by applicable law Subsidiaries other than for good reason or by the terms of contractual obligations existing as of the date hereof, including any collective bargaining agreementfor reasonable cause; (hs) not make expenditures in excess of expenditures permitted by the Company's last budget approved by the Board of Directors, including, but not limited to, incur or commit to incur any capital expenditures, or enter into any binding commitment obligations or contract to make expendituresliabilities in connection therewith that, except (i) expenditures which the Company individually or its subsidiaries are currently contractually committed to make, (ii) other expenditures not exceeding $50,000 in each such case and $150,000 in the aggregate, (iii) are in excess of the amounts set forth in the Company’s annual capital expenditure budget for emergency repairs and other expenditures necessary in light of circumstances not anticipated as of periods following the date of this Agreement which are necessary Agreement, as provided to avoid significant disruption to the Company's business Parent, or operations consistent with past practice delay any material capital expenditures; (and, if reasonably practicable, after consultation with Parentt) except as otherwise expressly permitted in Section 6.5(d), waive, release, grant or (iv) for repairs and maintenance transfer any right of material value, other than in the ordinary course of business consistent with past practice; provided; however, that all expenditures under Sections 1.10 of the Company Disclosure Schedule shall be permittedor waive any material benefits of, or agree to modify in any material adverse respect, or, subject to the terms hereof, fail to enforce, or consent to any material matter with respect to which its consent is required under, any material confidentiality, standstill or similar agreement to which the Company or any of this Agreementits Subsidiaries is a party; (iu) not makemaintain insurance at less than current levels or otherwise in a manner inconsistent with past practice; (v) enter into any transaction that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and the regulations thereunder; (w) engage in any transaction with, change or revoke enter into any agreement, arrangement or understanding with any Affiliate of the Company; (x) grant any material Tax election unless required refunds, credits, rebates or other allowances by law the Company to any end user, customer, reseller or make distributor, in each case, other than in the ordinary course of business; (y) enter into any agreement or settlement new line of business outside of its existing business segments; (z) communicate with any taxing authority regarding any material amount of Taxes or which would reasonably be expected to materially increase the obligations employees of the Company or the Surviving Corporation to pay Taxes in the future; (j) maintain all existing insurance policies of the Company and any of its subsidiaries Subsidiaries regarding the compensation, benefits or other treatment that they will receive in full force connection with the Merger, unless any such communications are consistent with prior directives or documentation provided to the Company by Parent (in which case, the Company shall provide Parent with prior notice of and effectthe opportunity to review and comment upon any such communications); or (aa) enter into any agreement to do any of the foregoing.

Conduct of Business by the. Company Pending the Merger. Except as otherwise contemplated by this Agreement or disclosed in Section 5.01 of the Company Disclosure Schedule, after the date hereof and prior to the Effective Time or earlier termination of this Agreement, unless Parent shall otherwise agree in writingwriting (which agreement shall not be unreasonably withheld or delayed), the Company shall, and shall cause its subsidiaries to: (a) conduct their respective businesses in the ordinary and usual course of business and in a manner substantially consistent with past practice, including with respect to casino credit policies; (b) not (i) amend or propose to amend their respective articles of incorporation or bylaws or equivalent constitutional documents, (ii) split, combine or reclassify their outstanding capital stock, or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise, except for (x) the payment of the dividend of $ .27 per share declared by the Company on June 2, 2004 and (y) the payment of dividends or distributions to the Company or a wholly owned subsidiary of the Company by a direct or indirect wholly owned subsidiary of the CompanyCompany or (iv) repurchase, redeem or otherwise acquire, or modify or amend, any shares of the capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for any such capital stock, except that the Company may (i) issue shares upon the exercise of Options outstanding on the date hereof;, and (ii) grant Options pursuant to obligations existing on June 10, 2004. (d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business or borrowings under the existing credit facilities of the Company or of any of its subsidiaries up to the existing borrowing limit on the date hereofconsistent with past practice, and (B) borrowings to refinance existing outstanding indebtedness on terms which are reasonably acceptable to Parent; provided that in no event shall aggregate indebtedness of the Company and its subsidiaries, net of all cash and cash equivalents, exceed Two Million, Seven Hundred Seventy-Five Thousand Dollars ($2,775,000.00)3,200,000,000, (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock other than in connection with the exercise of outstanding Options pursuant to the terms of the Company Plansthereof, (iii) make any acquisition of any assets or businesses other than expenditures for current assets in the ordinary course of business consistent with past practice and expenditures for fixed or capital assets in each case in the ordinary course of businessbusiness consistent with past practice, (iv) without Parent's consent, acquire any property, (v) sell, pledge, dispose of or encumber any assets or businesses other than (A) sales of businesses real estate, assets or facilities for cash consideration (including any debt assumed by the buyer of such real estate, assets disclosed in Section 5.01 or facilities) to non-affiliates of the Company Disclosure Scheduleof less than $1,000,000 in each such case and $7,000,000 in the aggregate, (B) pledges or encumbrances pursuant to existing credit facilities or other permitted borrowings, (C) sales or dispositions of businesses or assets as may be required by applicable law, and (DC) sales or dispositions of assets in the ordinary course of business, business consistent with past practice or (viv) enter into any binding contract, agreement, commitment or arrangement with respect to any of the foregoing; (e) use best all reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers and key employees, and use all reasonable efforts to preserve the goodwill and business relationships with customers and others having business relationships with them them, other than as expressly permitted by the terms of this Agreement; (f) not enter into, amend, modify or renew any employment, consulting, severance or similar agreement agreements with, pay any bonus or grant any increase in salary, wage or other increase in compensation or any increase in any employee benefit to, any director directors, officers or officer employees of the Company or of any of its subsidiaries, except in each such case (i) for changes that are as may be required by applicable law, law (ii) to satisfy obligations existing as of the date hereof, hereof or (iii) in the ordinary course of business consistent with past practice; (g) not enter into, establish, adopt, amend or modify any pension, retirement, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare plan, agreement, program or arrangement, in respect of any directordirectors, officer officers or employee employees of the Company or of any of its subsidiaries, except, in each such case, case (i) as may be required by applicable law or by pursuant to the terms of contractual this Agreement, (ii) to satisfy obligations existing as of the date hereof, including pursuant to any collective bargaining agreementagreement or (iii) in the ordinary course of business consistent with past practice; (h) not make capital expenditures in excess of expenditures permitted by the Company's last budget approved by the Board of Directors, including, but not limited to, capital expenditures, or enter into any binding commitment or contract to make capital expenditures, except (i) capital expenditures which the Company or its subsidiaries are currently contractually committed to make, (ii) other capital expenditures consistent with the amounts set forth in the Company's consolidated capital spending budget (a copy of which for fiscal year 2005 has been delivered to Parent prior to the date hereof and for fiscal year 2006 will be prepared by the Company and to be approved by Parent, such approval not to be unreasonably withheld or delayed), plus additional capital expenditures up to an amount not exceeding $50,000 10% of the amounts set forth in each such case and $150,000 in the aggregatebudget, (iii) capital expenditures for emergency repairs and other capital expenditures necessary in light of circumstances not anticipated as of the date of this Agreement which are necessary to avoid significant disruption to the Company's business or operations consistent with past practice (and, if reasonably practicable, after consultation with Parent), or (iv) for repairs and maintenance in the ordinary course of business consistent with past practice; provided; however, that all expenditures under Sections 1.10 of the Company Disclosure Schedule shall be permitted, subject to the terms of this Agreement;and (i) not make, change or revoke any material Tax election unless required by law or make any agreement or settlement with any taxing authority regarding any material amount of Taxes or which would reasonably be expected to materially increase the obligations of the Company or the Surviving Corporation to pay Taxes in the future; (j) maintain all existing insurance policies of the Company and any of its subsidiaries in full force and effect.