Common use of Conduct of Business in Ordinary Course Clause in Contracts

Conduct of Business in Ordinary Course. From and after the date hereof until the Closing, the Company will carry on its Business in the ordinary course and in substantially the same manner as such Business has previously been carried out, and will not make or institute any material purchase, sale, lease, management, accounting policy or operation that will vary materially from those methods used by it during the 12-month period ending on the date of this Agreement. Without limiting the foregoing, from the date hereof until the Closing Date, the Company will (a) not increase any compensation payable to any employees or consultants (except in the ordinary course of business); (b) not create any material obligation or Liability (absolute or contingent) except Liabilities incurred in the ordinary course of business and obligations under contracts entered in the ordinary course of business; (c) not enter into, amend or terminate any material contract, agreement, permit or lease without the prior written consent of Kellxxxxx xxxer than in the ordinary course of business; (d) not amend the Certificate of Incorporation or the By-laws of the Company; (e) not enter into any commitment to borrow money or mortgage, pledge, or subject to Lien, any assets or properties except in the ordinary course of business and not exceeding $1,000,000; (f) not sell or transfer any of the Assets or cancel any debt or claim except in the ordinary course of conduct of the Business or as contemplated hereunder; (g) keep in full force and effect all insurance relating to the Business comparable in amount and scope of coverage to that now maintained; (h) perform in all material respects all its obligations under contracts, leases and documents relating to or affecting conduct of the Business, all in the same manner as heretofore performed; (i) use reasonable efforts to maintain and preserve the Assets, the Business, the good will and relationships with its present customers,

Conduct of Business in Ordinary Course. From and after the date hereof until the Closing, the Company will carry on its Business business diligently, in the ordinary course and in substantially the same manner as such Business business has previously been carried out, and will not make or institute any material purchase, sale, lease, management, accounting policy or operation that will vary materially from those methods used by it during the 12-12 month period ending on the date of this Agreement. Without limiting the foregoing, from the date hereof until the Closing Date, the Company will (ai) not increase any compensation payable to any employees or consultants (except in the ordinary course of business); (bii) not create any material obligation or Liability liability (absolute or contingent) except Liabilities liabilities incurred in the ordinary course of business and obligations under contracts entered in the ordinary course of business; (ciii) not enter into, amend or terminate any material contract, agreement, permit or lease without the prior written consent of Kellxxxxx xxxer the Purchaser other than in the ordinary course of business; (div) not amend the Certificate certificate of Incorporation limited partnership or the By-laws agreement of limited partnership of the Company; (ev) not enter into any commitment to borrow money or mortgage, pledge, or subject to Lien, any assets or properties except in the ordinary course of business and not exceeding $1,000,000or as contemplated hereunder; (fvi) not sell or transfer any of the Assets or cancel any debt or claim except in the ordinary course of conduct of the Business business or as contemplated hereunder; (gvii) keep in full force and effect all insurance relating to the Business comparable in amount and scope of coverage to that now maintained; (hviii) perform in all material respects all its obligations under contracts, leases and documents relating to or affecting conduct of the Business, all in the same manner as heretofore performed; (iix) use reasonable its best efforts to maintain and preserve the Assets, the Business, the good will and relationships with its present customers,officers, employees, suppliers, staff and others having a business relationship with it, and maintain all material licenses and permits requisite to the conduct of the Business; (x) not commit to any capital expenditure or purchase of Inventory other than in the ordinary course of business; (xi) maintain in working condition all buildings, equipment, fixtures and other property, reasonable wear and tear excepted; (xii) duly and timely file all tax and information returns with the appropriate Federal, state, local and foreign governmental agencies and promptly pay when due all taxes, excise taxes, assessments, charges, penalties and interest lawfully levied or assessed upon it or any of its property; (xiii) make no material change in its existing banking and safe deposit arrangements or grant any powers of attorney except in the ordinary course of business; (xiv) not distribute, spend, commit or otherwise transfer any interest in the funds paid to the Company except in the ordinary course of business; (xv) issue or split-up, or grant any option or other right to acquire, any partnership or other interest or any security of the Company; or (xvi) make any declaration, set aside for payment or other distribution in respect of any of the partnership interests of the Company, or make any direct or indirect redemption, purchase or other acquisition of any partnership interest of the Company. The Company will promptly report to the Purchaser any material proposed capital expenditure or purchase of Inventory.

Conduct of Business in Ordinary Course. From (a) The Seller will, and after the date hereof until Owners will cause the ClosingSeller to, conduct the Company will carry on its Business diligently, in the ordinary course and in substantially the same manner as such the Business has was previously been carried outconducted, and will not make or institute any material unusual or novel purchase, sale, lease, change in management, accounting policy or operation that will vary materially from those methods used by it during the 12-month period ending on the date of this Agreement. Without limiting the foregoing, from the date hereof until the Closing Date, as it relates to the Company Business and its operation, the Seller will, and the Owners will cause the Seller to: (ai) not increase change the compensation of any compensation payable to any employees or consultants (of its officers, nor, except in the ordinary course of business); , increase any compensation (bincluding, without limitation, any bonuses) payable to any Business Employee or consultant of the Business, not create enter into any material obligation employment, severance or Liability other agreement with any of its officers or any Business Employee or consultant of the Business and not enter into, amend or adopt any Employee Plan, (absolute or contingent) except Liabilities incurred in the ordinary course of business and obligations under contracts entered in the ordinary course of business; (cii) not enter into, amend or terminate any material contract, agreement, permit or lease Contract without the prior written consent of Kellxxxxx xxxer than in NMHC and the ordinary course of business; Purchaser, (d) not amend the Certificate of Incorporation or the By-laws of the Company; (eiii) not enter into any commitment to borrow money or mortgage, pledge, or subject to LienLien any of the Assets, any assets or properties except in the ordinary course of business and not exceeding $1,000,000; (fiv) not sell or transfer any of the Assets of the Business or cancel any debt or claim applicable to the Business except in the ordinary course of conduct of the Business or as contemplated hereunder; Business, (gv) keep in full force and effect all insurance relating to not dispose of any material assets of the Business comparable outside the ordinary course of business, or dispose of any membership interests (or securities exchangeable for its membership interests), or declare or pay any dividend or make any distribution in amount respect of any membership interests of the Seller or enter into any commitments or agreements with respect thereto except as mutually agreed by the Purchaser and scope of coverage to that now maintained; the Seller, (hvi) perform in all material respects all its obligations under contractsLicenses, leases the Assumed Contracts and other documents relating to or affecting conduct of the Business, all in the same manner as heretofore performed; , (ivii) use reasonable its best efforts to maintain and preserve the AssetsBusiness, the goodwill and relationships with the Business Employees, customers, suppliers and others having a business relationship with the Business, and maintain all Licenses requisite to the good will conduct of the Business as now conducted, (viii) maintain in working condition all equipment and relationships other personal property that are Assets, reasonable wear and tear excepted, (ix) comply with all Laws and Governmental Orders applicable to the Business (x) not enter into any license, technology development or technology transfer agreement with any person or entity (other than NMHC or the Purchaser) which might have a material adverse affect on the Business, (xi) not enter into negotiations with, or solicit offers from, any party, directly or indirectly, for the sale of all or substantially all of the Business or the assets at the Business, (xii) vote the membership interests held or controlled by an Owner to approve this Agreement, the Ancillary Agreement and the transactions contemplated hereby and thereby, and (xiii) not take any action or omit to take any action which act or omission would result in the inaccuracy of any of its present customers,representations and warranties set forth herein if such representations or warranties were to be made immediately after the occurrence of such act or omission.

Conduct of Business in Ordinary Course. From The Members and after the date hereof until the Closing, the Company will carry on its conduct the Business diligently, in the ordinary course and in substantially the same manner as such the Business has was previously been carried outconducted, and will not make or institute any material unusual or novel purchase, sale, lease, change in management, accounting policy or operation that will vary materially from those methods used by it during the 12-month period ending on the date of this Agreement; provided however, the Company shall not incur any liability or engage in a transaction with an Interested Party without the written consent of Excel. Without limiting the foregoing, from the date hereof until the Closing Date, with respect to the Company will and its Subsidiaries, the Company and the Members will: (ai) not increase any change the compensation payable to any employees Person, not enter into any employment, severance or consultants other agreement with any Person or enter into or adopt any Employee Benefit Plan, (except in the ordinary course of business); (b) not create any material obligation or Liability (absolute or contingent) except Liabilities incurred in the ordinary course of business and obligations under contracts entered in the ordinary course of business; (cii) not enter into, amend or terminate any material contract, agreement, permit or lease Contract without the prior written consent of Kellxxxxx xxxer than in the ordinary course of business; Excel, (d) not amend the Certificate of Incorporation or the By-laws of the Company; (eiii) not enter into any commitment to borrow money or mortgage, pledge, or subject to LienLien any of the assets of the Company and its Subsidiaries, any assets or properties except in the ordinary course of business and not exceeding $1,000,000; (fiv) not sell or transfer any of the Assets assets or cancel any debt or claim except in the ordinary course of conduct of the Business Business, (v) not dispose of any material assets of the Company and its Subsidiaries outside the ordinary course of business, or make any distribution to its equity owners or enter into any commitments or agreements with respect thereto except as contemplated hereunder; agreed by Excel, (g) keep in full force and effect all insurance relating to the Business comparable in amount and scope of coverage to that now maintained; (hvi) perform in all material respects all its obligations under contractsLicenses, leases the Contracts and other documents relating to or affecting conduct of the Business, all in the same manner as heretofore performed; , (ivii) use reasonable its best efforts to maintain and preserve the Assets, the Business, the good will goodwill and relationships with the Company's and its present Subsidiaries' licensors, customers,, suppliers and others having a business relationship with the Company, and maintain all Licenses requisite to the conduct of the Business as now conducted, (viii) maintain in working condition all equipment and other personal property that are assets, reasonable wear and tear excepted, (ix) comply with all Laws and Governmental Orders (x) not enter into any license, technology development or technology transfer agreement with any person or entity (other than Excel) which might have a Material Adverse Effect, (xi) not enter into negotiations with, or solicit offers from, any party, directly or indirectly, for the sale of all or substantially all of the Securities or the assets of the Company, (xii) not take any action or omit to take any action which act or omission would result in the inaccuracy of any of its representations and warranties set forth herein if such representations or warranties were to be made immediately after the occurrence of such act or omission; (xiii) amend or otherwise change the Company's and its Subsidiaries' Organizational Documents; (xiv) (x) declare, set aside, make or pay any dividend or other distribution to their respective Members, or (y) redeem, purchase or otherwise acquire, directly or indirectly, any of its Company Membership Interests, or (z) authorize or effect any reverse stock split, split-up or any recapitalization or make any changes in the amount of their authorized or issued Company Membership Interests, or (xv) otherwise engage in any activity that would result in a violation of Section 3.06 above.

Conduct of Business in Ordinary Course. From and after the date hereof until the Closing, the (a) The Company will carry on conduct its Business business diligently, in the ordinary course and in substantially the same manner as such Business has it was previously been carried outconducted, and will not make or institute any material unusual or novel purchase, sale, lease, change in management, accounting policy or operation that will vary materially from those methods used by it during the 12-month period ending on the date of this Agreement. Without limiting the foregoing, from the date hereof until the Closing Date, the Company will will: (ai) not increase amend its articles of incorporation (except pursuant to the Amendment) or by-laws, (ii) not acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any Person or (B) any material assets, except purchases in the ordinary course of business, (iii) not change the compensation payable to of any employees or consultants (of its officers, nor, except in the ordinary course of businessbusiness consistent with past practice, increase any compensation (including, without limitation, any bonuses) payable to any Company Employee or consultant of the Company, not enter into any employment, severance or other Contract with any of its officers or any Company Employee or consultants and not enter into, amend or adopt any Employee Plan (provided that the Company may, prior to Closing and pursuant to documentation reasonably satisfactory to Purchaser, amend the terms of its 1999 Incentive Stock Plan, as amended, or any Company Option granted thereunder, to provide that (i) all outstanding Employee Options will vest in full on the one-year anniversary of the Closing Date and (ii) all holders of outstanding Director Options will be entitled to early exercise such Director Options); , (b) not create any material obligation or Liability (absolute or contingent) except Liabilities incurred in the ordinary course of business and obligations under contracts entered in the ordinary course of business; (civ) not enter into, amend or terminate any material contract, agreement, permit or lease Contract without the prior written consent of Kellxxxxx xxxer than the Purchaser, except in the ordinary course of business; , (d) not amend the Certificate of Incorporation or the By-laws of the Company; (ev) not enter into any commitment to borrow money or mortgage, pledge, or subject to LienLien any of the Assets, any assets or properties except in the ordinary course of business and not exceeding $1,000,000; (fvi) not sell or transfer any of the Assets or cancel any debt or claim except in the ordinary course of conduct business, (vii) not dispose of any shares of capital stock (or securities exchangeable for its shares of capital stock), or declare or pay any dividend or make any distribution in respect of any shares of capital stock of the Business Company or enter into any Contract with respect thereto except in accordance with the terms of this Agreement or as contemplated hereunder; mutually agreed by the Purchaser and the Company, (g) keep in full force and effect all insurance relating to the Business comparable in amount and scope of coverage to that now maintained; (hviii) perform in all material respects all its obligations under contractsLicenses, leases the Company Contracts and other documents relating to or affecting conduct of the BusinessCompany, all in the same manner as heretofore performed; , (iix) use its commercially reasonable efforts to maintain and preserve the Assetsbusiness of the Company, the Business, the good will goodwill and relationships with the Company Employees, customers, suppliers and others having a business relationship with the Company, and maintain all Licenses requisite to the conduct of its present customers,business as now conducted, (x) maintain in working condition all equipment and other personal property that are Assets, reasonable wear