Common use of Conduct of Business Pending the Acquisition Clause in Contracts

Conduct of Business Pending the Acquisition. SECTION 5.01. Conduct of Business by the Seller Pending the Acquisition. The Seller covenants and agrees that, between the date of this Agreement and the earlier of the termination of this Agreement or the Closing Date, unless the Buyer shall otherwise agree in writing, the businesses of the Seller shall be conducted only in, and the Seller shall not take any action except in, the ordinary course of business and in a manner consistent with past practice; and the Seller shall use commercially reasonable efforts to preserve substantially intact its business organization, to keep available the services of the current officers, employees and consultants of the Seller and to preserve the current relationships of the Seller with customers, suppliers and other persons with which the Seller has significant business relations. It is acknowledged, however, that any action taken by the Buyer on behalf of the Seller pursuant to the MA or otherwise, shall not be deemed to be in violation of this Section 5.01. By way of amplification and not limitation, except as contemplated by this Agreement or as set forth in Schedule 5.01 of the Disclosure Schedule or otherwise contemplated by the MA, the Seller shall not, between the date of this Agreement and the earlier of the termination of this Agreement or the Closing Date, directly or indirectly do, or propose to do, any of the following without the prior written consent of the Buyer: (a) amend or otherwise change the Seller's articles of incorporation or by-laws; (b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of any assets of the Seller, except for sales in the ordinary course of business and in a manner consistent with past practice (if any); (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (d) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any corporation, partnership, other business organization or any division thereof or any material amount of assets; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement material to the business, results of operations or financial condition of the Seller, other than in the ordinary course of business, consistent with past practice; (iv) authorize any single capital expenditure which is in excess of $10,000 or capital expenditures which are, in the aggregate, in excess of $25,000 ; or (v) enter into or amend in any material respect any contract, agreement, commitment or arrangement with respect to any matter set forth in this subsection (d) (except any agreement with STB); or (e) increase the compensation payable or to become payable to its officers or employees generally, or grant any bonus, severance or termination pay to, or enter into any employment or severance agreement with any director, officer or other employee of the Seller, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee.

Conduct of Business Pending the Acquisition. SECTION 5.01. Conduct of Purchased Business by the Seller Pending the Acquisition. The Seller covenants and agrees that, between the date of this Agreement and the earlier of the termination of this Agreement or the Closing Date, unless the Buyer shall otherwise agree in writing, the businesses of the Seller shall be conducted only in, and the Seller shall not take any action except in, the ordinary course of business and in a manner consistent with past practice; and the Seller shall use commercially reasonable efforts to preserve substantially intact its business organization, to keep available the services of the current officers, employees and consultants of the Seller and to preserve the current relationships of the Seller with customers, suppliers and other persons with which the Seller has significant business relations. It is acknowledged, however, that any action taken by the Buyer on behalf of the Seller pursuant to the MA or otherwise, shall not be deemed to be in violation of this Section 5.01. By way of amplification and not limitation, except as contemplated by this Agreement or as set forth in Schedule 5.01 of the Disclosure Schedule or otherwise contemplated by the MASchedule, the Seller shall not, between the date of this Agreement and the earlier of the termination of this Agreement or the Closing Date, directly or indirectly do, or propose to do, any of the following without the prior written consent of the Buyer: (a) amend or otherwise change the Seller's articles Articles of incorporation Incorporation or byBy-lawslaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of any assets of the Seller, except for sales in the ordinary course of business and in a manner consistent with past practice (if any)practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (d) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any corporation, partnership, other business organization or any division thereof or any material amount of assets; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement material to the business, results of operations or financial condition of the Seller, other than in the ordinary course of business, consistent with past practice; (iv) authorize any single capital expenditure which is in excess of $10,000 or capital expenditures which are, in the aggregate, in excess of $25,000 for the Seller taken as a whole; or (v) enter into or amend in any material respect any contract, agreement, commitment or arrangement with respect to any matter set forth in this subsection (d) (except any agreement with STB); or; (e) increase (except in the ordinary course of business and consistent with past practice) the compensation payable or to become payable to its officers or employees generally, or grant any bonus, severance or termination pay to, or enter into any employment or severance agreement with any director, officer or other employee of the Seller, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee.;

Conduct of Business Pending the Acquisition. SECTION 5.01. Conduct of Business by the Seller Pending the Acquisition. The Seller covenants From and agrees that, between after the date of this Agreement and the earlier of the termination of this Agreement or hereof until the Closing Date, unless the Buyer shall otherwise agree in writing, the businesses of the Seller shall be conducted only in, and the Seller shall not take any action except in, the ordinary course of business and in a manner consistent with past practice; and the Seller shall use commercially reasonable efforts to preserve substantially intact its business organization, to keep available the services of the current officers, employees and consultants of the Seller and to preserve the current relationships of the Seller with customers, suppliers and other persons with which the Seller has significant business relations. It is acknowledged, however, that any action taken by the Buyer on behalf of the Seller pursuant to the MA or otherwise, shall not be deemed to be in violation of this Section 5.01. By way of amplification and not limitation, except as contemplated by this Agreement or unless HealthAmerica and VivaKor shall otherwise agree in writing, VivaKor and HealthAmerica covenant and agree that they shall: (a) carry on business in the usual, regular and ordinary course in substantially the same manner as set forth heretofore conducted or presently contemplated to be conducted, (b) use all reasonable efforts to preserve intact its present business organization, keep available the services of its employees and consultants and preserve its relationships and goodwill with customers, suppliers, licensors, licensees, distributors and others having business dealings with it, and (c) use commercially reasonable efforts to protect its intellectual property rights to the end that its goodwill and on-going businesses shall not be impaired in Schedule 5.01 any material respect as of the Disclosure Schedule or otherwise Closing Date. Without limiting the generality of the foregoing, except as expressly contemplated by the MA, the Seller shall not, between the date of this Agreement and the earlier of the termination of this Agreement or unless the Closing Dateparties shall otherwise agree in writing, directly or indirectly doprior to the Closing, neither shall: (i) declare, set aside, or propose to dopay any dividends on, or make any other distributions in respect of, any of its capital stock or issue or authorize the following without the prior written consent issuance of the Buyer: (a) amend any other securities in respect of, in lieu of or in substitution for shares of its capital stock; purchase, redeem or otherwise change the Seller's articles acquire any shares of incorporation capital stock or by-lawsany rights, warrants, or options to acquire any such shares; (bii) grant, award or enter into any compensation or change of control arrangement with any employee of VivaKor; (iii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire; any such shares or voting securities (other than the issuance of Common Stock upon the exercise of Options) or amend the terms of any such securities, rights, warrants or options or take any action to accelerate the vesting thereof; (iv) amend the certificate of incorporation or by-laws of VivaKor; (v) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, grantor by any other manner, encumberany business or any corporation, partnership, joint venture, association or other business organization or division thereof, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of any assets of that are material, individually or in the Selleraggregate, except for sales except, in any such case, in the ordinary course of business and in a manner consistent with past practice (if any)business; (cvi) declare, set aside, make adopt a plan of complete or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stockpartial liquidation; (d) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any corporation, partnership, other business organization or any division thereof or any material amount of assets; (iivii) incur or modify any indebtedness for borrowed money or guarantee any such indebtedness of another Person; issue or sell any debt securities; guarantee any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, another Person; (viii) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement material to the business, results of operations or financial condition of the Seller, other than in the ordinary course of business, consistent with past practice; (iv) authorize make any single capital expenditure which is in excess of $10,000 loans, advances or capital expenditures which arecontributions to, in the aggregateor investments in, in excess any other Person or settle or compromise any material claims or litigation; (ix) take any action or omit to take any action that would cause any of $25,000 ; or (v) enter into or amend its representations and warranties herein to become untrue in any material respect any contract, agreement, commitment or arrangement with respect to any matter set forth in this subsection (d) (except any agreement with STB)respect; or (ex) increase the compensation payable or to become payable to its officers or employees generallyauthorize any of, or grant commit or agree to take any bonusof, severance or termination pay to, or enter into any employment or severance agreement with any director, officer or other employee of the Seller, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employeeforegoing actions.

Conduct of Business Pending the Acquisition. SECTION 5.01. Section 5.1 Conduct of Business by the Seller Company Pending the Acquisition. The Seller covenants and agrees that, between From the date of this Agreement and hereof until the earlier of the termination of this Agreement or the Closing DateClosing, unless the Buyer GSCP shall otherwise agree in writing, the businesses or except as set forth in Section 5.1 of the Seller shall be conducted only inCompany Disclosure Letter or as otherwise contemplated by this Agreement, the Company and the Seller Company Subsidiaries shall not take any action except in, conduct their respective businesses solely in the ordinary course of business and in a manner consistent with past practice; and the Seller shall use all commercially reasonable efforts to preserve substantially intact its their business organizationorganizations and relationships with third parties (including but not limited to their respective relationships with policyholders and agents), to keep available the services of the current officerstheir present officers and key employees, employees and consultants of the Seller and to preserve the current relationships of the Seller with customers, suppliers and other persons with which the Seller has significant business relations. It is acknowledged, however, that any action taken by the Buyer on behalf of the Seller pursuant subject to the MA or otherwise, shall not be deemed to be in violation terms of this Section 5.01Agreement. By way of amplification and not limitation, except as contemplated by this Agreement or Except as set forth in Schedule 5.01 Section 5.1 of the Company Disclosure Schedule Letter or as otherwise contemplated by the MAprovided in this Agreement, the Seller shall not, between from the date of this Agreement and hereof until the earlier of the termination of this Agreement or the Closing DateClosing, directly or indirectly do, or propose to do, any of the following without the prior written consent of the BuyerGSCP: (a) amend the Company shall not and shall not permit any Company Subsidiary to adopt or otherwise propose any change the Seller's articles in its Articles of incorporation Incorporation or by-lawsBylaws; (b) issuethe Company shall not declare, set aside or pay any dividend or other distribution with respect to or acquire any shares of capital stock of the Company, or split, combine or reclassify any of the Company's capital stock, and the Company and the Company Subsidiaries shall not repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, the Company; (c) the Company shall not, and shall not permit any Company Subsidiary to, merge or consolidate with any other person or (except in the ordinary course of business after notice to GSCP) acquire a material amount of assets of any other person; (d) the Company shall not, and shall not permit any Company Subsidiary to, enter into or terminate any material contract, agreement, commitment, or understanding other than agreements entered into with unaffiliated third parties, on an arms-length basis and in the ordinary course of business constituting marketing affiliation and sales agreements on terms comparable with its existing agreements of such nature; (e) the Company shall not, and shall not permit any Company Subsidiary to, sell, pledgelease, license or otherwise surrender, relinquish or dispose ofof (i) any material facility owned or leased by the Company or any Company Subsidiary or (ii) any assets or property which are material to the Company and the Company Subsidiaries, granttaken as a whole, encumberexcept pursuant to existing contracts or commitments, or authorize in the issuanceordinary course of business after notice to GSCP; (f) the Company shall not, saleand shall not permit any Company Subsidiary to, pledgesell, dispositionlease, grant license or encumbrance otherwise surrender, relinquish or dispose of the assets described on Schedule 5.1(f) hereto; (g) the Company shall not, and shall not permit any Company Subsidiary to, settle any material audit, make or change any material Tax election or file amended Tax Returns unless required by law or such settlement results in a refund to the Company and in each case the Company notifies GSCP at least five days prior to the date any such action is taken; (h) the Company and the Company Subsidiaries shall not issue any capital stock or other securities or enter into any amendment of any assets material term of any outstanding security of the SellerCompany, except upon the exercise of stock options existing on the date hereof, and the Company and the Company Subsidiaries shall not incur any material indebtedness except in the ordinary course of business pursuant to existing credit facilities or arrangements, amend or otherwise increase, accelerate the payment or vesting of the amounts payable or to become payable under or fail to make any required contribu tion to, any Company Benefit Plan or materially increase any non-salary benefits payable to any employee or former employee, except in the ordinary course of business consistent with past practice, as required by applicable law or as otherwise permitted by this Agreement; (i) except in the ordinary course of business consistent with past practice, as may be required by applicable law or as may be necessary for compliance under Section 401(a) of the Code, if applicable, the Company shall not, and shall not permit any Company Subsidiary to (i) grant Options, Company SAR's or other equity-related awards; (ii) grant any increase in the compensation, bonus, severance, termination pay or other benefits of any former or current employee, agent, consultant, officer or director of the Company or any Company Subsidiary; (iii) enter into or amend any employment agreement, deferred compensation, consulting, severance, termination, indemnification or any other such agreement with any such former or current employee, agent, consultant, officer or director of the Company or any Company Subsidiary; or (iv) amend, adopt or terminate any Company Benefit Plan; (j) the Company shall not change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for sales any such change required by GAAP; (k) the Company shall not, and shall not permit any Company Subsidiary to, conduct material transactions in Company Investments except in compliance in all material respects with the investment policies of the Company and any such Company Subsidiary established from time to time in the ordinary course of business and in all material respects all applicable laws and regulations; (l) the Company shall not, and shall not permit any Company Subsidiary to, enter into any agreement to purchase, or to lease for a manner term in excess of one year, any real property, provided that the Company, or any Company Subsidiary, (i) may as a tenant, or a landlord, renew any existing lease for a term not to exceed eighteen months and (ii) nothing herein shall prevent the Company, in its capacity as a landlord, from renewing any lease pursuant to an option granted prior to the date hereof; (m) the Company shall not, and shall not permit any Company Subsidiary to, enter into any transaction, contract or arrangement whatsoever with an Affiliate (other than the Company or any Company Subsidiary), except transactions in the ordinary course of business consistent with past practice (if any)pursuant to pre-existing contracts disclosed in Section 4.26 of the Company Disclosure Letter or disclosed in the Company SEC Reports; (cn) declarethe Company shall not release any third party from any material obligation, set asideor grant any consent, make or pay under any dividend confidentiality or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (d) acquire (including, without limitation, by merger, consolidationagreement, or acquisition of stock or assets) fail to fully enforce any corporation, partnership, other business organization or any division thereof or any material amount of assets; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advancessuch agreement, except in the ordinary course of business and consistent with past practice; business; (iiio) without the prior consent of GSCP, which shall not be unreasonably withheld or delayed, enter into any contract securitization or agreement material pool of mortgage loans purchased, originated or serviced by the Company or any Company Subsidiary ("Mortgage Loans") or sale of whole Mortgage Loans in bulk transactions; and (p) the Company shall not, and shall not permit any Company Subsidiary to, agree or commit to the business, results of operations or financial condition do any of the Seller, other than in the ordinary course of business, consistent with past practice; (iv) authorize any single capital expenditure which is in excess of $10,000 or capital expenditures which are, in the aggregate, in excess of $25,000 ; or (v) enter into or amend in any material respect any contract, agreement, commitment or arrangement with respect to any matter set forth in this subsection (d) (except any agreement with STB); or (e) increase the compensation payable or to become payable to its officers or employees generally, or grant any bonus, severance or termination pay to, or enter into any employment or severance agreement with any director, officer or other employee of the Seller, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employeeforegoing.