Common use of Conduct of Business of Seller Clause in Contracts

Conduct of Business of Seller. During the period from the date of this Agreement to the Closing Date, the Stockholders will, jointly and severally, cause Seller to, and Seller will, conduct its operations only in the Ordinary Course of Business of Seller (including managing their working capital in accordance with its past practice and custom) and use their respective reasonable best efforts to: (a) preserve intact its business organizations, (b) keep available the services of its officers and employees and (c) maintain its relationships and goodwill with licensors, suppliers, distributors, customers, landlords, employees, agents and others having business relationships with any of them or the Business. Seller will confer with Purchaser concerning operational matters of a material nature and report periodically to Purchaser concerning the Business of Seller, operations and finances of Seller. Without limiting the generality or effect of the foregoing, prior to the Closing Date, except with the prior written consent of Purchaser, Seller will not, and the each Stockholder will cause Seller not to: (a) Amend or modify their certificates of incorporation or bylaws from their respective forms on the date of this Agreement; (b) Change any salaries or other compensation of, or pay any bonuses to any director, officer, employee or stockholder of Seller, or enter into any employment, severance, or similar agreement with any director, officer, stockholder or employee of Seller, PROVIDED, HOWEVER, that the compensation of employees of Seller receiving annual compensation of less than $70,000 may be changed in the Ordinary Course of Business of Seller; (c) Except as contemplated by Sections 8.5(d) and 8.5(e), adopt or increase any benefits under any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or with any of its employees; (d) Except as contemplated by Section 8.14, enter into any contract or commitment except contracts and commitments (for capital expenditures or otherwise) in the Ordinary Course of Business of Seller (and in any case not exceeding the dollar amounts with respect to specified categories of Contracts in Section 6.1.12);

Conduct of Business of Seller. During the period from From the date of this Agreement to the Closing Date, the Stockholders will, jointly and severally, cause Seller to, and Seller will, conduct its operations only in the Ordinary Course of Business of Seller (including managing their working capital in accordance with its past practice and custom) and use their respective reasonable best efforts to: (a) preserve intact its business organizations, (b) keep available the services of its officers and employees and (c) maintain its relationships and goodwill with licensors, suppliers, distributors, customers, landlords, employees, agents and others having business relationships with any of them or the Business. Seller will confer with Purchaser concerning operational matters of a material nature and report periodically to Purchaser concerning the Business of Seller, operations and finances of Seller. Without limiting the generality or effect of the foregoing, prior to hereof until the Closing Date, except as set forth on Schedule 6.1 of the Seller Disclosure Schedule, contemplated by this Agreement, required by Law or with the prior written consent of PurchaserBuyer (such consent not to be unreasonably withheld or delayed), Seller will not, shall use commercially reasonable efforts to cause the Company and the each Stockholder will cause Seller not to:Company Subsidiaries (other than the FP Subsidiaries) (a) Amend or modify their certificates of incorporation or bylaws from to conduct their respective forms on businesses in the ordinary course of business consistent with past practice, (b) to preserve substantially intact their respective present business organizations, operations and relationships with third parties and (c) to refrain from taking any of the following actions between the date hereof and the Closing: (i) make any material change in the cash compensation of this Agreementany Employees (excluding any arrangements that do not involve payments by the Company or the Company Subsidiaries after the Closing), other than changes made in accordance with normal compensation practices or pursuant to existing contractual commitments and consistent with past compensation practices; (bii) Change institute any salaries or other compensation of, or pay material increase in any bonuses to any director, officer, employee or stockholder of Seller, or enter into any employment, severance, or similar agreement with any director, officer, stockholder or employee of Seller, PROVIDED, HOWEVER, that the compensation of employees of Seller receiving annual compensation of less than $70,000 may be changed in the Ordinary Course of Business of Seller; (c) Except as contemplated by Sections 8.5(d) and 8.5(e), adopt or increase any benefits benefit provided under any profit profit-sharing, bonus, incentive, deferred compensation, savings, insurance, pension, retirement, medical, hospital, disability, welfare or other benefits made available to Employees other than in the ordinary course of business (excluding any arrangements that do not involve payments by the Company or the Company Subsidiaries after the Closing); (iii) (A) enter into any employment or severance agreement, other than for new employees in the ordinary course of business, (B) increase the benefits payable in the aggregate under severance or termination pay plans or policies, other than as required by Law or by the terms of any Benefit Plan, (C) adopt any new or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan or policy for the benefit of any director, officer or Employee, other than (1) for new employees in the ordinary course of business, (2) amendments to bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation and employee benefit plans or policies which are applicable to all or a portion of the Company and the Company Subsidiaries and which do not in the aggregate materially increase amounts otherwise payable under such plans or policies, (3) increase the compensation or benefits of any director or executive officer, other than in the ordinary course of business or as required by the terms of the applicable Benefit Plans or (4) waive or amend the terms of any non-competition or non-solicitation agreement with any of its employeesEmployee; (div) Except change any material Tax elections, investment policies or guidelines, accounting policies or practices (including to any cost allocation methods, reserving methods, practices or policies),or method of reporting revenue, except as contemplated required by Section 8.14Law or as required to conform with applicable GAAP or SAP, enter into as applicable; (v) fail to use commercially reasonable efforts on a basis consistent with past practice to maintain material assets in their current physical condition, except for ordinary wear and tear; (vi) incur third party Debt in excess of $250,000 individually or $5,000,000 in the aggregate other than Debt incurred by an FP Subsidiary; (vii) amend or authorize an amendment to any contract of the Organizational Documents of the Company or commitment except contracts the Company Subsidiaries (other than the FP Subsidiaries); (viii) issue or sell to any Person (other than Seller) any Equity Interests or other rights of any kind to acquire Equity Interests of the Company, or issue any Equity Interests in any Company Subsidiary to any Person other than the Company or a Company Subsidiary (other than shares of common stock of the Company issued in accordance with the terms and commitments conditions of the Share Purchase Program Agreement and the DCP or the SERP, as applicable, in settlement of the Company’s obligations with respect to deemed investments by certain directors of the Company under the DCP and the SERP (for capital expenditures which shall in no event exceed 172,002 shares)); (ix) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof; (x) sell, assign, lease, transfer, license or otherwise encumber or dispose of any material asset owned by the Company or the Company Subsidiaries as of the date hereof, except for any (A) sale, transfer or encumbrance carried out in the Ordinary Course ordinary course of Business business, (B) actions involving the incurrence of Seller Permitted Encumbrances or (C) sale or transfer involving no Persons other than the Company and the Company Subsidiaries; (xi) incur, authorize or commit to make any capital expenditure in excess of $1,000,000 other than (A) maintenance, repair and upkeep in the ordinary course of business or (B) in accordance with the Company’s projected and budgeted capital expenditures; (xii) permit the Company to declare or pay any case dividend or make any other distribution to its shareholders whether or not exceeding upon or in respect of any shares of its capital stock; (xiii) commence any proceeding for a voluntary liquidation, dissolution, or winding up, including the dollar initiation of any bankruptcy proceedings on its behalf; (xiv) issue any Insurance Contracts other than in accordance with the underwriting guidelines of the Company and the Subsidiaries as of the date of this Agreement, or make any material amendments to such underwriting guidelines; (xv) commute, terminate or amend any Insurance Contract other than in the ordinary course of business consistent with past practices of the Company and the Subsidiaries without receiving fair or reasonably equivalent value in connection therewith unless management shall determine that such commutation, termination or amendment is in the best interests of the Company and its reinsurers; (xvi) make any investments other than in accordance with the investment policies of the Company and the Subsidiaries as of the date of this Agreement, or make any material amendments to such investment policies; (xvii) realize gains or losses on investment securities other than in the ordinary course of business consistent with past practices of the Company and the Subsidiaries; (xviii) pay any bonuses or incentive compensation, including equity-based, in amounts with respect on an annualized basis in excess of amounts accrued as of September 30, 2008 (provided, however, that nothing herein shall limit the amount of any bonus or incentive compensation payable to specified categories of Contracts in Section 6.1.12any particular individual);; or

Conduct of Business of Seller. During the period from the date of this Agreement to the Closing Date, the Stockholders will, jointly and severally, cause Seller to, and Seller will, will conduct its operations only in the Ordinary Course of Business of Seller (including managing their working capital in accordance with its past practice and custom) and use their respective its reasonable best efforts to: (ai) preserve intact its business organizationsorganization, (bii) keep available the services of its officers and employees employees, and (ciii) maintain its relationships and goodwill with licensors, suppliers, distributors, customers, landlords, employees, agents and others having business relationships with any of them Seller or the Business. Seller will confer with Purchaser concerning operational matters of a material nature and report periodically to Purchaser concerning the Business of Seller, operations and finances of Seller. Without limiting the generality or effect of the foregoing, prior to the Closing Date, except with the prior written consent of PurchaserPurchaser or as contemplated under this Agreement, Seller will not, and the each Stockholder will cause Seller not to: (a) Amend or modify their certificates of incorporation or bylaws from their respective forms on the date of this Agreement; (b) Change any salaries or other compensation of, or pay any bonuses to to, any current or former director, officer, employee or stockholder of Seller, or enter into any employment, severance, severance or similar agreement with any current or former director, officer, stockholder officer or employee of Seller; provided, PROVIDED, HOWEVERhowever, that the compensation of employees of Seller receiving annual compensation of less than $70,000 75,000 may be changed in the Ordinary Course of Business of Seller; (cb) Except as contemplated by Sections 8.5(d) and 8.5(e), adopt Adopt or increase any benefits under any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, retirement or other employee benefit plan Benefit Plan for or with any of its employees; (dc) Except as contemplated by Section 8.14, enter Enter into any contract or commitment commitment, except for contracts and commitments (for capital expenditures or otherwise) entered into by Seller in the Ordinary Course of Business of Seller Business; (and d) Modify or amend in any case not exceeding the dollar amounts with material respect or terminate any Contract listed or required to specified categories of Contracts be listed in Section 6.1.12Schedule 6.1.11(a); (e) Except as required by Law or GAAP, make any change in accounting methods or practices (including changes in reserve or accrual policies); (f) Sell, lease or otherwise dispose of any material asset or property; (g) Create or assume any Lien, other than a Permitted Lien; (h) Terminate or close any facility, business or operation of Seller; (i) Settle, release or forgive any claim or litigation or waive any right thereto that relates to any of the Purchased Assets or the Assumed Liabilities, but excluding any such claim or right that relates solely to any Excluded Asset or Retained Liability; or (j) Agree to do any of the foregoing.

Conduct of Business of Seller. During Seller agrees that during the period from the date of this Agreement to the Closing DateDate (unless Buyer shall otherwise consent in writing), the Stockholders will, jointly and severally, cause Seller to, and Seller will, conduct its operations only in the Ordinary Course of Business of Seller (including managing their working capital in accordance with its past practice and custom) and use their respective will exercise commercially reasonable best efforts to: (ai) conduct its operations according to its ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, (ii) seek to preserve intact its current business organizationsorganization, (biii) maintain the Purchased Assets in good working order and condition, ordinary wear and tear excepted, (iv) keep available the services of its current officers and employees employees, (v) continue all current sales, marketing and promotional activities relating to the Business and (cvi) maintain preserve its relationships and goodwill with licensors, suppliers, distributors, customers, landlords, employees, agents suppliers and others having business relationships dealings with it to the end that goodwill and ongoing businesses shall not be impaired in any of them or material respect on the Business. Seller will confer with Purchaser concerning operational matters of a material nature and report periodically to Purchaser concerning the Business of Seller, operations and finances of SellerClosing Date. Without limiting the generality or effect of the foregoing, and except as otherwise permitted in this Agreement or as set forth in Schedule 4.02, prior to the Closing Date, except with Seller will not, without the prior written consent of Purchaser, Seller will not, and the each Stockholder will cause Seller not toBuyer: (a) Amend sell, pledge, lease, license or modify their certificates otherwise encumber or transfer any of incorporation the Purchased Assets, except for (i) the sale or bylaws from their respective forms on other disposition of obsolete or worn-out assets or assets being replaced in the date ordinary course of this Agreementbusiness prior to the Closing Date or (ii) sales of inventory in the ordinary course of Seller’s business; (b) Change grant any salaries increases in (or make any amendments to) the compensation (including, without limitation, incentive compensation) of any of its directors, officers or employees; (c) pay or agree to pay any pension, retirement allowance or other compensation of, employee benefit not required or pay contemplated by any bonuses of the existing Company Plans as in effect on the date hereof to any director, officerofficer or employee, whether past or present; (d) enter into any new, or amend any existing, Company Plan or employment or severance or termination agreement with any director, officer or employee; (e) except as may be required to comply with applicable law or as may be required by those items listed on Schedule 4.02, become obligated under any new pension plan, welfare plan, Multiemployer Plan, employee benefit plan, severance plan, benefit arrangement, or stockholder similar plan or arrangement, which was not in existence on the date hereof, or amend any such plan or arrangement in existence on the date hereof or amend any Company Plan if, in either case, such amendment would have the effect of Sellerenhancing any benefits thereunder; (f) subject any of its assets, or any part thereof, to any Lien or suffer such to be imposed other than such Liens as may arise in the ordinary course of business consistent with past practices or by operation of law which will not be discharged on or prior to the Closing Date; (g) make any change in any method of accounting or accounting principle, method, estimate or practice or write down the value of any inventory or write-off as uncollectible any accounts receivable except in the ordinary course of business consistent with past practices; (h) settle, release or forgive (or commence) any material claim, litigation or adversarial proceeding or waive any material right; (i) (i) amend (in a manner adverse to Seller or the Purchased Assets), terminate or waive any material right under any of the Assumed Contracts, (ii) enter into any oral contract, obligation, understanding or commitment that would be an Assumed Contract (other than purchase orders in the ordinary course of business) or (iii) enter into any contract, obligation, understanding or commitment that would be an Assumed Contract other than in compliance with the Arms Export Control Act and the implementing regulations thereto (International Traffic in Arms Regulations); (j) engage in any transaction, or enter into any employmentcommitment or understanding, severance, or similar agreement with respect to the Business with any officer, director, officer, stockholder Affiliate or employee of Seller, PROVIDED, HOWEVER, that the compensation of employees Shareholder of Seller receiving annual compensation or their Affiliates or Associates or for the benefit of less than $70,000 may be changed in the Ordinary Course any of Business of Sellerthem; (ck) Except as contemplated by Sections 8.5(d) and 8.5(e)make capital expenditures or commitments for additions to property, adopt plant or increase any benefits under any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or with any equipment constituting capital assets on behalf of its employeesthe Business in an aggregate amount exceeding $25,000; (dl) Except acquire any machine guns that were not lawfully registered in the National Firearms Registration and Transfer Record (“NFRTR”) prior to May 19, 1986, or manufacture and acquire through any existing ATF variance, any machine guns first registered in the NFRTR on or after May 19, 1986, as contemplated such machine guns are defined by Section 8.14§5845(b) of the National Firearms Act (“NFA”), in excess of the exact number of such machine guns that are actually required to be manufactured by Seller in order to service existing Seller contracts for the supply of such machine guns; or (m) enter into any contract Contract to do or commitment except contracts and commitments (for capital expenditures or otherwise) in the Ordinary Course of Business of Seller (and engage in any case not exceeding of the dollar amounts with respect to specified categories of Contracts in Section 6.1.12);foregoing.

Conduct of Business of Seller. During the period from the date of this Agreement Pre-Closing Period, Seller shall use commercially reasonable efforts, except as otherwise required, authorized or restricted pursuant to the Closing DateBankruptcy Code or an Order of the Bankruptcy Court, to operate the Stockholders will, jointly and severally, cause Seller to, and Seller will, conduct its operations only Business in the Ordinary Course of Business (among other things, Seller will not incur unreasonable liabilities, including, without limitation, inappropriate increases in Inventory or factoring of accounts receivable). Seller shall use commercially reasonable efforts to (including managing their working capital in accordance with its past practice and custom) and use their respective reasonable best efforts to: (aA) preserve intact its business organizations, (bB) maintain the Business and the Purchased Assets (normal wear and tear excepted), (C) keep available the services of its officers and employees and Employees, (cD) maintain its satisfactory relationships and goodwill with licensors, licensees, suppliers, contractors, distributors, consultants, customers, landlords, employees, agents vendors and others having business relationships with any Seller in connection with the operation of them or the Business. Seller will confer with Purchaser concerning operational matters of a material nature and report periodically to Purchaser concerning the Business (other than payment of Sellerpre-petition claims), operations (E) pay all of its post-petition obligations in the Ordinary Course of Business, and finances of Seller(F) continue to operate the Business and Purchased Assets in all material respects in compliance with all Laws applicable to the Business and Seller consistent with past practice. Without limiting the generality or effect of the foregoing, and except (i) as otherwise expressly provided in or contemplated by this Agreement, or (ii) required, authorized or restricted pursuant to the Bankruptcy Code or an Order of the Bankruptcy Court, on or prior to the Closing Date, except with Seller may not, without the prior written consent of Purchaser, Seller will not, and take any of the each Stockholder will cause Seller not tofollowing actions with respect to the Business or the Purchased Assets: (a) Amend other than as set forth in Schedule 8.1(a), (i) modify in any manner the compensation of any of the Employees or modify their certificates officers, or accelerate the payment of incorporation any such compensation (other than such that the liability associated with such modification is excluded from the Assumed Liabilities), (ii) grant any (a) bonuses, whether monetary or bylaws from their respective forms on otherwise, (b) increase wages or salary or (c) increase other compensation or material benefits, in any case, in respect of any current or former employee, independent contractor, director or officer of the date of this AgreementSeller; (b) Change other than as set forth in Schedule 8.1(b), engage any salaries new Employee other than in the Ordinary Course of Business, provided, however, that Seller shall not engage any new Employee whose annual base salary would exceed $150,000; (c) except as set forth in Schedule 8.1(c), remove or other compensation ofpermit to be removed from any building, facility, or pay real property any bonuses to asset or any director, officer, employee or stockholder Inventory (other than in connection with the sale of Seller, or enter into any employment, severance, or similar agreement with any director, officer, stockholder or employee of Seller, PROVIDED, HOWEVER, that the compensation of employees of Seller receiving annual compensation of less than $70,000 may be changed Inventory in the Ordinary Course of Business and the sale of Seller; (c) Except as contemplated by Sections 8.5(d) fixtures, equipment and 8.5(e), adopt or increase any benefits under any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or related assets in connection with any the closing of its employees;facilities in an amount not to exceed $200,000. (d) Except as contemplated by Section 8.14sell, enter into lease or otherwise dispose of, mortgage, hypothecate or otherwise encumber any contract asset (other than sales of Inventory in the Ordinary Course of Business and other than any liens permitted or commitment except contracts and commitments provided for in the DIP Order); (for capital expenditures e) amend, terminate or otherwiserenew any Contract other than (i) in the Ordinary Course of Business or (ii) outside of the Ordinary Course of Business, which does not result in an increase in the term of any such Contract by more than one (1) year and does not result in an obligation of Seller in excess of $300,000; (f) fail to use commercially reasonable efforts to maintain the validity of Seller’s rights in, to or under any Intellectual Property used in the operation of the Business or the Purchased Assets; (g) fail to use commercially reasonable efforts to maintain all material Permits of Seller, used in the operation of the Business or the Purchased Assets; (h) make any unusual or extraordinary efforts to collect any outstanding Accounts Receivable, liability or Indebtedness, give any discounts or concessions for early payment of such accounts receivable, liability or Indebtedness, other than the usual discounts given by the Business in the Ordinary Course of Business and make any sales of, or, other than liens provided for in the DIP Order, convey any interest in, any accounts receivable or intercompany obligation, liability or Indebtedness to any third party; (i) other than transactions pursuant to agreements or arrangements in effect on the Petition Date as set forth on Schedule 8.1(i), engage in any transaction with any Affiliate, subsidiary, shareholder, officer or director of Seller (other than in the Ordinary Course of Business), incur or assume any long term or short term debt with or on behalf of any such Person or guarantee, endorse or otherwise be liable or responsible (whether directly, indirectly, contingently or otherwise) for the obligations of any such Person; (j) make any change in its method of accounting, except in accordance with GAAP; (k) fail to maintain any insurance policy in effect on the date hereof or amend any such policy other than extensions in the Ordinary Course of Business; (l) accelerate the payment of any obligation, Liability or Indebtedness of Seller; (m) file any Tax Return (other than consistent with past practice and applicable Law) or make, change or rescind any Tax election or file any amended Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices or settle any Tax Liability, except in each case as would not reasonably be expected to result in any case not exceeding Liability to, or have any adverse effect on, the dollar amounts with respect Purchaser or the Business; (n) enter into, termination of, adoption of or amendment to specified categories any Benefit Plan (other than amendments required by law or to maintain the tax qualified status of Contracts any Benefit Plan under Section 401(a) of the Code), any change in Section 6.1.12)control or severance agreement or any other Benefit Plan or collective bargaining agreement; (o) loan to, or entry into any other transaction (other than in the Ordinary Course of Business) with, any employee, officer, director or independent contractor; (p) settle or agree to settle any pending or threatened litigation, except to the extent that such settlement is either (i) pursuant to an insured claim or (ii) less than $50,000; and (q) agree, whether in writing or otherwise, to do any of the foregoing.

Conduct of Business of Seller. During the period from the date of this Agreement to the Closing Date, the Stockholders Seller will, jointly and severally, the Stockholder will cause Seller to, and Seller will, conduct its operations only in the Ordinary Course of Business of Seller (including managing their its working capital in accordance with its past practice and custom) and use their respective its commercially reasonable best efforts to: (ai) preserve intact its business organizations, (bii) keep available the services of its officers and employees employees, and (ciii) maintain its relationships and goodwill with licensors, suppliers, distributors, customers, landlords, employees, agents and others having business relationships with any of them Seller or the Business. Seller will confer with Purchaser concerning operational matters of a material nature and report periodically to Purchaser concerning the Business of SellerBusiness, operations and finances of Seller. Without limiting the generality or effect of the foregoing, prior to the Closing Date, except with the prior written consent of PurchaserPurchaser or as contemplated under this Agreement, Seller will not, and the each Stockholder will cause Seller not to: (a) Amend or modify their certificates of incorporation or bylaws from their respective forms on the date of this Agreement; (b) Change any salaries or other compensation of, or pay any bonuses to to, any current or former director, officer, employee or stockholder of Seller, or enter into any employment, severance, severance or similar agreement with any current or former director, officer, stockholder or employee of Seller, ; PROVIDED, HOWEVER, that the compensation of employees of Seller receiving annual compensation of less than $70,000 50,000 may be changed in the Ordinary Course of Business of Seller; (cb) Except as contemplated by Sections 8.5(d) and 8.5(e), adopt Adopt or increase any benefits under any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, retirement or other employee benefit plan Benefit Plan for or with any of its employees; (dc) Except as contemplated by Section 8.14, enter Enter into any contract or commitment commitment, except for contracts and commitments (for capital expenditures or otherwise) entered into by Seller in the Ordinary Course of Business of Seller (and in any case not exceeding the dollar amounts with respect to specified categories of Contracts set forth in Section 6.1.126.1.11, except for Contracts to be entered into upon the acceptance of open bids set forth in SCHEDULE 3(A)(III) for the dollar amounts set forth therein); (d) Modify or amend in any material respect or terminate any Contract listed or required to be listed in SCHEDULE 6.1.11(A); (e) Enter into any transaction or commitment relating to the assets or the Business of Seller or cancel or waive any claim or right which, individually or in the aggregate, could be material to Seller; (f) Make any change in accounting methods or practices (including changes in reserve or accrual policies); (g) Sell, lease or otherwise dispose of any material asset or property; (h) Create or assume any Lien, other than a Permitted Lien; (i) Terminate or close any material facility, business or operation of Seller; (j) Cause or permit to occur any event, occurrence or omission which, individually or together with other matters, could reasonably be expected to have a Material Adverse Effect; (k) Take any action that would cause any of the representations and warranties made by Seller in this Agreement not to remain true and correct or any of the conditions set forth in any subsection of Section 9.1 from being satisfied; (l) Settle, release or forgive any claim or litigation or waive any right thereto that relates to any of the Purchased Assets or the Assumed Liabilities, but excluding any such claim or right that relates solely to any Excluded Asset or Retained Liability; or (m) Agree to do any of the foregoing.

Conduct of Business of Seller. During the period from From the date of this Agreement to until the Closing Date, , (a) the Stockholders will, jointly Seller shall: (i) maintain itself as a corporation duly incorporated and severally, cause Seller to, in good standing under the laws of the State of Delaware and Seller will, conduct its operations only the Business in substantially the same manner as it historically has been conducted in the Ordinary Course of usual and ordinary course; and (ii) use reasonable commercial efforts to maintain and/or preserve the Business of Seller (including managing their working capital and employees, customers, suppliers and operations as an ongoing business in accordance with past practices and customs, except that Seller shall be permitted to close certain of its past practice and custom) and use their respective reasonable best efforts to: (a) preserve intact its business organizations, restaurant operations as described in Schedule 5.01(a); (b) keep available without the services prior written consent of its officers Buyer, Seller shall not: (i) enter into any transaction (including commitments for capital expenditures except in accordance with Section 6.01) relating to the Business other than in the ordinary course of business; (ii) materially change the extent or character of the Business; (iii) sell, assign, transfer, lease or remove any material assets (tangible and intangible) from any facilities or premises of the Au Bon Pain Division, unless such assets are replaced before the Closing Date with similar items of equal quality and utility; (iv) pay to any current or former employee of the Business any compensation or other benefit that is not (A) required by a plan, trust, agreement or other arrangement in effect on or before the date hereof and disclosed in a schedule to this Agreement, or (B) salaries and bonuses in the ordinary course of business; (v) adopt, amend, or increase any benefits payable under, any employee benefit, welfare, compensation, or other "fringe benefit" plan, trust, agreement or arrangement, including any thrift, pension, savings, retirement, stock bonus, stock option, stock purchase, profit sharing, group insurance, medical reimbursement, deferred compensation, or other similar plan, including any Benefit Plan as defined in Section 3.21, in each such case such that any such action will not be binding upon or create any liability or obligation of ABPH prior to or after the Closing, except that the Seller may increase annual compensation to employees and of the Au Bon Pain Division with an annual salary of less than $50,000 in the ordinary course of business on a basis consistent with past practices; (cvi) maintain its relationships and goodwill with licensorsdiscontinue or materially diminish any insurance coverage applicable to the Business; (vii) cancel or compromise any material legal right or claim of or debts owed to Seller in respect of the Business; (viii) enter into any non-competition, suppliers, distributors, customers, landlords, employees, agents and others having business relationships non-solicitation or indemnification agreements with any Person, the terms of them which shall be binding upon ABPH after the Closing; (ix) incur or suffer to exist any indebtedness of or Encumbrance upon any assets of Seller which shall constitute a liability of ABPH after the Business. Seller will confer with Purchaser concerning operational matters Closing, except: (1) to the extent incurred pursuant to contracts entered into on or prior to the date hereof; or (2) which otherwise is incurred in the ordinary and usual course of a material nature and report periodically to Purchaser concerning the Business of Seller, operations and finances of Seller. Without limiting the generality business; or effect of the foregoing, (3) which shall be discharged on or prior to the Closing Date; or (4) which is contemplated by any of the Transaction Documents to be incurred prior to the Closing Date; (i) mortgage, pledge or subject to any Encumbrance any of its assets; (ii) cancel or compromise any material claim of or material debts owed to it in respect of the Business; (iii) except in the ordinary course of business, sell, lease or transfer any of the assets of the Business; (iv) sell, assign or transfer any of the Intellectual Property of the Business; (v) pay any dividends in respect of its capital stock; (vi) increase any salaries or bonuses of its employees for any employee with an annual salary of $50,000 or higher; (vii) materially change its accounting or cash management policies and practices; (viii) enter into any transactions with any of its Affiliates except in the ordinary course of business or as may otherwise be contemplated by this Agreement and the Schedules hereto or (ix) unless otherwise agreed upon by both Buyer and Seller upon mutually acceptable terms and conditions, commence the conversion or remodeling of any of its bakery/cafes in accordance with its ABP2000 program; (xi) enter into any amendments for any of its store leases to be transferred to ABPH in connection with the Restructuring which would have the effect of shifting the economic impact of such amendments from the first year of such lease immediately following the Closing into subsequent years so as to avoid any Lease Fee Adjustment that would otherwise result from such amendment; or (xii) agree to do, or acquiesce in, any of the foregoing acts. (c) the Seller shall cause ABPH to, and ABPH shall: (i) maintain itself as a corporation duly incorporated and in good standing under its state of incorporation and conduct its Business in the same manner as it historically has been conducted in the usual and ordinary course; and (ii) use reasonable commercial efforts to maintain and/or preserve its assets in accordance with past practices and customs; and (iii) not make any change or amendment to its certificate of incorporation or bylaws. (d) without the prior written consent of PurchaserBuyer, the Seller will not, and the each Stockholder will cause Seller shall not permit ABPH to: (ai) Amend enter into any transaction other than in the ordinary course of business; (ii) enter into any transaction with any Affiliate, except as otherwise provided for herein, or modify their certificates any transaction which is not at arms-length with any unaffiliated Person; (iii) wind-up, dissolve, liquidate (completely or partially), acquire any capital assets, other than in the ordinary course of incorporation business, merge or bylaws from their respective forms on consolidate into or with any other person, or sell, lease, exchange, transfer, or otherwise dispose of, or grant to any person a right or option to lease, acquire, or purchase any material amount of the date assets of ABPH or the Au Bon Pain Division (including any part of them or any interest therein), except as expressly contemplated by this Agreement; (biv) Change sell, assign, transfer, lease or remove or suffer any salaries material uninsured casualty loss of any material assets (tangible and intangible) from ABPH or the Au Bon Pain Division facilities or premises, unless such assets are replaced before the Closing Date with similar items of equal quality and utility and without incurring any indebtedness or Encumbrance; (v) issue any shares of capital stock of ABPH or any securities convertible into or exercisable or exchangeable for capital stock or options to purchase capital stock or other compensation rights in respect of any of the foregoing; provided, however, ABPH may issue to Seller shares of its capital stock in consideration of the Seller assigning its interest in certain leases, contracts and assets to ABPH pursuant to the Restructuring contemplated by Section 5.06; (vi) declare, set aside, pay or make any dividend or other distribution or payment with respect to, or redeem, purchase, or otherwise acquire, split, combine, or reclassify, any shares of their capital stock or otherwise change their capital structure; (vii) discontinue or materially diminish any insurance coverage applicable to them; (viii) cancel or compromise any material contract of, or pay any bonuses to any directorlegal right or claim of or debts owed to, officer, employee ABPH or stockholder of Seller, or the Au Bon Pain Division; (ix) enter into any employmentnon-competition, severance, non-solicitation or similar agreement indemnification agreements with any directorthird Person, officer, stockholder or employee the terms of Seller, PROVIDED, HOWEVER, that which shall survive the compensation of employees of Seller receiving annual compensation of less than $70,000 may be changed in the Ordinary Course of Business of SellerClosing Date; (cx) Except as incur or suffer to exist any indebtedness of or Encumbrance upon any assets of any of ABPH or the Au Bon Pain Division, except: (1) to the extent incurred pursuant to contracts entered into by Seller or ABPH on or prior to the date hereof; or (2) which otherwise is incurred in the ordinary and usual course of business; or (3) which shall be discharged on or prior to the Closing Date; or (4) which is contemplated by Sections 8.5(dany of the Transaction Documents to be incurred prior to the Closing Date. (xi) and 8.5(e), adopt or increase any benefits under any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirementagree to do, or other employee benefit plan for or with acquiesce in, any of its employees; (d) Except as contemplated by Section 8.14, enter into any contract or commitment except contracts and commitments (for capital expenditures or otherwise) in the Ordinary Course of Business of Seller (and in any case not exceeding the dollar amounts with respect to specified categories of Contracts in Section 6.1.12);foregoing acts.