Common use of Conduct of Business Pending the Effective Time Clause in Contracts

Conduct of Business Pending the Effective Time. From and after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1 (the "Termination Date"), and except as may be agreed in writing by the other parties hereto or as may be provided for or permitted pursuant to this Agreement: (a) ASARCO shall, and shall cause each of its Subsidiaries to, conduct its operations according to their ordinary and usual course of business in substantially the same manner as heretofore conducted; (b) ASARCO shall use its reasonable best efforts, and cause each of its Subsidiaries to use its reasonable best efforts, to preserve intact its business organizations and goodwill, keep available the services of its current officers and other key employees and preserve its relationships with those persons having business dealings with it (including its relationships with customers, suppliers, employees and business partners); (c) ASARCO shall confer at such times as Parent may reasonably request with one or more representatives of such requesting party to report material operational matters and the general status of ongoing operations (to the extent such requesting party reasonably requires such information); (d) ASARCO shall notify Parent of any emergency or other change in the normal course of its or its Subsidiaries' respective businesses or in the operation of its or its Subsidiaries, respective properties and of any complaints or hearings (or communications indicating that the same may be contemplated) of any Governmental Entity if such emergency, change, complaint, investigation or hearing would have a Material Adverse Effect on ASARCO; (e) ASARCO shall not, and shall not permit any of its Subsidiaries to, (i) declare, set aside, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of stock, except in the case of ASARCO and its majority owned subsidiary Southern Peru Copper Corporation for regular quarterly cash dividends on the outstanding shares of their common stock and except for cash dividends by a wholly owned Subsidiary to a parent, or (ii) split, combine or reclassify any of its shares of capital stock; (f) ASARCO shall not, and shall not permit any of its Subsidiaries to, except (i) in the ordinary course of business consistent with past practice, (ii) as otherwise provided in this Agreement or (iii) as required by applicable Law, adopt or amend any Employee Benefit Plan; (g) ASARCO shall not, and shall not permit any of its Subsidiaries to, authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the ASARCO Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights, in each case not in the ordinary course of business; (h) ASARCO shall not, and shall not permit its Subsidiaries to, propose or adopt any amendments to its certificate of incorporation or by-laws or other similar governing documents; (i) ASARCO shall not, and shall not permit any of its Subsidiaries to, issue or authorize the issuance of, or agree to issue or sell any shares of their capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for the issuance of shares of ASARCO Common Stock by ASARCO upon the exercise of stock options or other rights to acquire ASARCO's capital stock, in each case which securities, options and rights are outstanding as of the date of this Agreement and such issuance is made in accordance with the terms of such securities, options and rights in effect on the date of this Agreement; provided that ASARCO shall not issue any shares of ASARCO Common Stock or any other shares of capital stock or other securities convertible into or representing the right to receive shares of ASARCO Common Stock after consummation of the Tender Offer; (j) ASARCO shall not, and shall not permit any of its Subsidiaries to, except in the ordinary course of business in connection with employee incentive and benefit plans, programs or arrangements in existence on the date hereof, purchase or redeem any shares of its stock or any rights, warrants or options to acquire any such shares; (k) ASARCO shall not, and shall not permit any of its Subsidiaries to, incur, assume or prepay any indebtedness or any other material liabilities, other than indebtedness between such party and a wholly owned Subsidiary or between wholly owned Subsidiaries, provided, in either such case, such wholly owned Subsidiaries remain wholly owned Subsidiaries, and other than in the ordinary course of business consistent with past practice; (l) ASARCO shall not, and shall not permit any of its Subsidiaries to, sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets (including securitizations), other than in the ordinary course of business consistent with past practice and other than the consummation of contracts of sale executed and delivered prior to the date hereof; (m) ASARCO shall not, and shall not permit any of its Subsidiaries to make any material Tax election or settle or compromise any material Tax liability, other than in the ordinary course of business consistent with past practice; and (n) ASARCO shall not, and shall not permit any of its Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions or take any action which would (i) make any representation or warranty in Article III hereof untrue or incorrect or (ii) result in any of the conditions to the Tender Offer or the ASARCO Merger set forth in Article VI not being satisfied.

Conduct of Business Pending the Effective Time. From Each of NYCB and after RCF agrees, as to itself and its subsidiaries, that, except insofar as the date hereof and prior other party shall otherwise consent in writing (such consent not to be unreasonably withheld or delayed) or except in connection with the Effective Time NYCB Stock Dividend or as otherwise expressly contemplated by this Plan or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1 (the "Termination Date"), and except as may be agreed in writing by the other parties hereto Stock Option Agreements or as may be provided for or permitted pursuant to this Agreementset forth in paragraph 6.1 of its Disclosure Letter: (a) ASARCO shall, The business of it and shall cause each of its Subsidiaries to, conduct its operations according to their subsidiaries will be conducted only in the ordinary and usual course of business in substantially and, to the same manner as heretofore conducted; (b) ASARCO shall extent consistent therewith, it and its subsidiaries will use its all reasonable best efforts, and cause each of its Subsidiaries to use its reasonable best efforts, efforts to preserve intact its their business organizations and goodwillassets and maintain their rights, keep available the services of its current officers franchises and other key employees and preserve its relationships with those persons having business dealings with it (including its relationships existing relations with customers, suppliers, employees and business partners); (c) ASARCO shall confer at such times associates and, except as Parent may reasonably request with one or more representatives of such requesting party to report material operational matters required by law, it and the general status of ongoing operations (to the extent such requesting party reasonably requires such information); (d) ASARCO shall notify Parent of any emergency or other change in the normal course of its or its Subsidiaries' respective businesses or in the operation of its or its Subsidiaries, respective properties and of any complaints or hearings (or communications indicating that the same may be contemplated) of any Governmental Entity if such emergency, change, complaint, investigation or hearing would have a Material Adverse Effect on ASARCO; (e) ASARCO shall not, and shall not permit any of its Subsidiaries to, will not knowingly take any action that would (i) declareadversely affect the ability of any of them to obtain (A) any Regulatory Approval or (B) the opinions of tax counsel referred to, set aside, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of stock, except in the case of ASARCO and its majority owned subsidiary Southern Peru Copper Corporation for regular quarterly cash dividends on NYCB, in Section 7.2(c) and, in the outstanding shares case of their common stock and except for cash dividends by a wholly owned Subsidiary to a parentRCF, in Section 7.3(c), or (ii) splitadversely affect its ability to perform its obligations under this Plan or the Stock Option Agreements; provided, combine however, that nothing contained herein shall limit the ability of RCF to exercise the NYCB Stock Option Agreement and NYCB to exercise the RCF Stock Option Agreement, as the case may be. (b) It will not (i) sell or reclassify pledge, agree to sell or pledge, or permit any Lien to exist on, any stock owned by it or any of its shares of capital stock; (f) ASARCO shall not, and shall not permit any of its Subsidiaries to, except (i) in the ordinary course of business consistent with past practice, material subsidiaries; (ii) as otherwise provided in this Agreement amend or (iii) as required by applicable Law, adopt or amend any Employee Benefit Plan; (g) ASARCO shall not, and shall not permit any of its Subsidiaries to, authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the ASARCO Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights, in each case not in the ordinary course of business; (h) ASARCO shall not, and shall not permit its Subsidiaries to, propose or adopt any amendments to restate its certificate of incorporation or by-laws except, in the case of NYCB, to increase the authorized number of shares of NYCB Common Stock to 150,000,000; (iii) split, combine or reclassify any outstanding capital stock; (iv) other than as permitted by Section 6.2 or, in the case of NYCB, in connection with the NYCB Stock Dividend, declare, set aside or pay any dividend or distribution payable in cash, stock or other similar governing documents; (i) ASARCO shall not, and shall not permit property with respect to any of its Subsidiaries tocapital stock; or (v) in the case of RCF only, issue repurchase, redeem or authorize the issuance ofotherwise acquire, or agree permit any subsidiary to issue purchase or sell otherwise acquire, directly or indirectly, any shares of their its capital stock of or any class (whether through the issuance securities convertible into or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except exercisable for the issuance of any shares of ASARCO Common Stock by ASARCO upon its capital stock, other than in connection with the exercise of stock options or other rights to acquire ASARCO's capital stock, in each case which securities, options any Rights it has granted and rights are has outstanding as of the date of hereof or issued hereafter as permitted by this Agreement and such issuance is made Plan in accordance with the terms of such securities, options and rights in effect on the date of this Agreement; provided that ASARCO shall not issue any shares of ASARCO Common Stock or any other shares of capital stock or other securities convertible into or representing the right to receive shares of ASARCO Common Stock after consummation of the Tender Offer;thereof. (jc) ASARCO shall not, and shall not permit Neither it nor any of its Subsidiaries to, except subsidiaries will (i) in the ordinary course case of business in connection with employee incentive and benefit plansRCF only, programs issue, sell, pledge, dispose of or arrangements in existence on encumber, or authorize or propose the date hereofissuance, purchase sale, pledge, disposition or redeem encumbrance of, any shares of, or securities convertible or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of, any class, except pursuant to this Plan, the RCF Stock Option Agreement, or any rights, warrants in connection with the exercise of Rights outstanding as of the date hereof or options to acquire any such shares; issued thereafter as permitted by this Plan; (kii) ASARCO shall not, and shall not permit any of its Subsidiaries to, incur, assume or prepay any indebtedness or any other material liabilities, other than indebtedness between such party and a wholly owned Subsidiary or between wholly owned Subsidiaries, provided, in either such case, such wholly owned Subsidiaries remain wholly owned Subsidiaries, and other than in the ordinary course of business consistent with past practice; (l) ASARCO shall not, and shall not permit any of its Subsidiaries to, selltransfer, lease, license, mortgage guarantee, sell, mortgage, pledge or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties other material property or assets or encumber any property or assets other than to a direct or indirect wholly owned subsidiary of it; or (including securitizations), iii) authorize capital expenditures other than in the ordinary and usual course of business consistent with past practice and other than the consummation of contracts of sale executed and delivered prior to the date hereof;practice. (md) ASARCO shall notExcept for internal reorganizations involving existing subsidiaries, and shall not permit or in satisfaction of debts previously contracted in good faith, neither it nor any of its Subsidiaries to subsidiaries will make any material Tax election acquisition of, or settle investment in, assets or compromise stock of any material Tax liability, other Person. (e) Other than in the ordinary course of business consistent with past practice; and (n) ASARCO shall not, and shall not permit neither it nor any of its Subsidiaries tosubsidiaries will incur any indebtedness for borrowed money or assume, agreeguarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person or make any loan or advance. (f) Neither it nor any of its subsidiaries will (i) grant any increase in compensation or benefits to its Employees, except as required by contractual obligations in effect as of the date hereof or in the ordinary course of business consistent with past practice, or appoint any new or existing employee to the position of Executive Vice President or higher except to fill a vacancy arising after the date hereof; (ii) pay any bonus except as required by contractual obligations in effect as of the date hereof or in the ordinary course of business consistent with past practice; (iii) grant any severance or termination pay to any director or Employee except as consistent with past practice or direction; (iv) enter into or amend any employment or severance agreement with any director or Employee (provided that this clause (iv) shall not prohibit either party from approving a renewal or other extension of an existing employment or severance agreement in accordance with its terms and in the ordinary course of business consistent with past practice); (v) grant any increase in fees or other increases in compensation or other benefits to any of its present or former directors; or (vi) effect any material change in retirement benefits for any class of its Employees (unless such change is required by applicable law or, in writing the opinion of counsel, is necessary or otherwiseadvisable to maintain the tax qualification of any plan under which the retirement benefits are provided). (g) In the case of RCF only, except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable law, neither it nor any of its subsidiaries will establish, adopt, enter into or make any new, or amend any existing, collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, employee stock ownership, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors or Employees. (h) Neither it nor any of its subsidiaries will implement or adopt any change in its accounting principles, practices or methods, other than as may be required by generally accepted accounting principles or regulatory accounting principles or applicable law. (i) In the case of RCF only, except in the ordinary course of business consistent with past practice, settle any claim, action or proceeding against it, except for any claim, action or proceeding which involves solely money damages in an amount, individually or in the aggregate for all such settlements, that is not material to RCF or NYCB and each of their respective subsidiaries, taken as a whole, and that does not involve or create precedent for claims, actions or proceedings that are reasonably likely to be material to RCF or NYCB and each of their respective subsidiaries taken as a whole. (j) Neither it nor any of its subsidiaries will authorize or enter into an agreement to take any of the foregoing actions or take any action which would referred to in paragraphs (a) through (i) make any representation or warranty in Article III hereof untrue or incorrect or (ii) result in any of the conditions to the Tender Offer or the ASARCO Merger set forth in Article VI not being satisfiedabove.

Conduct of Business Pending the Effective Time. From and after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1 (the "Termination Date"), and except as may be agreed in writing by the other parties hereto or as may be provided for or permitted pursuant to this Agreement: (a) ASARCO shall, and shall cause each of its Subsidiaries to, conduct its operations according to their ordinary and usual course of business in substantially the same manner as heretofore conducted; (b) ASARCO shall use its reasonable best efforts, and cause each of its Subsidiaries to use its reasonable best efforts, to preserve intact its business organizations and goodwill, keep available the services of its current officers and other key employees and preserve its relationships with those persons having business dealings with it (including its relationships with customers, suppliers, employees and business partners); (c) ASARCO shall confer at such times as Parent may reasonably request with one or more representatives of such requesting party to report material operational matters and the general status of ongoing operations (to the extent such requesting party reasonably requires such information); (d) ASARCO shall notify Parent of any emergency or other change in the normal course of its or its Subsidiaries' respective businesses or in the operation of its or its Subsidiaries, respective properties and of any complaints or hearings (or communications indicating that the same may be contemplated) of any Governmental Entity if such emergency, change, complaint, investigation or hearing would have a Material Adverse Effect on ASARCO; (e) ASARCO shall not, and shall not permit any of its Subsidiaries to, (i) declare, set aside, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of stock, except in the case of ASARCO and its majority owned subsidiary Southern Peru Copper Corporation for regular quarterly cash dividends on the outstanding shares of their common stock and except for cash dividends by a wholly owned Subsidiary to a parent, or (ii) split, combine or reclassify any of its shares of capital stock; (f) ASARCO shall not, and shall not permit any of its Subsidiaries to, except (i) in the ordinary course of business consistent with past practice, (ii) as otherwise provided in this Agreement or (iii) as required by applicable Law, adopt or amend any Employee Benefit Plan; (g) ASARCO shall not, and shall not permit any of its Subsidiaries to, authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the ASARCO Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights, in each case not in the ordinary course of business; (h) ASARCO shall not, and shall not permit its Subsidiaries to, propose or adopt any amendments to its certificate of incorporation or by-laws or other similar governing documents; (i) ASARCO shall not, and shall not permit any of its Subsidiaries to, issue or authorize the issuance of, or agree to issue or sell any shares of their capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for the issuance of shares of ASARCO Common Stock by ASARCO upon the exercise of stock options or other rights to acquire ASARCO's capital stock, in each case which securities, options and rights are outstanding as of the date of this Agreement and such issuance is made in accordance with the terms of such securities, options and rights in effect on the date of this Agreement; provided PROVIDED that ASARCO shall not issue any shares of ASARCO Common Stock or any other shares of capital stock or other securities convertible into or representing the right to receive shares of ASARCO Common Stock after consummation of the Tender Offer; (j) ASARCO shall not, and shall not permit any of its Subsidiaries to, except in the ordinary course of business in connection with employee incentive and benefit plans, programs or arrangements in existence on the date hereof, purchase or redeem any shares of its stock or any rights, warrants or options to acquire any such shares; (k) ASARCO shall not, and shall not permit any of its Subsidiaries to, incur, assume or prepay any indebtedness or any other material liabilities, other than indebtedness between such party and a wholly owned Subsidiary or between wholly owned Subsidiaries, providedPROVIDED, in either such case, such wholly owned Subsidiaries remain wholly owned Subsidiaries, and other than in the ordinary course of business consistent with past practice; (l) ASARCO shall not, and shall not permit any of its Subsidiaries to, sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets (including securitizations), other than in the ordinary course of business consistent with past practice and other than the consummation of contracts of sale executed and delivered prior to the date hereof; (m) ASARCO shall not, and shall not permit any of its Subsidiaries to make any material Tax election or settle or compromise any material Tax liability, other than in the ordinary course of business consistent with past practice; and (n) ASARCO shall not, and shall not permit any of its Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions or take any action which would (i) make any representation or warranty in Article III hereof untrue or incorrect or (ii) result in any of the conditions to the Tender Offer or the ASARCO Merger set forth in Article VI not being satisfied.

Conduct of Business Pending the Effective Time. From and after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1 (the "Termination Date"), and except as may be agreed in writing by the other parties hereto or as may be provided for or permitted pursuant to this Agreement: (a) ASARCO each of the parties shall, and shall cause each of its Subsidiaries to, conduct its operations according to their ordinary and usual course of business in substantially the same manner as heretofore conducted; (b) ASARCO each of the parties shall use its reasonable best efforts, and cause each of its Subsidiaries to use its reasonable best efforts, to preserve intact its business organizations organiza tions and goodwill, keep available the services of its current officers and other key employees and preserve its relationships with those persons having business dealings with it (including its relationships with customers, suppliers, employees and business partners); (c) ASARCO each of the parties shall confer at such times as Parent any of the other parties may reasonably request with one or more representatives of such requesting party to report material operational matters and the general status of ongoing operations (to the extent such requesting party reasonably requires such information); (d) ASARCO each of the parties shall notify Parent the other parties of any emergency or other change in the normal course of its or its Subsidiaries' respective businesses or in the operation of its or its Subsidiaries, respective properties and of any complaints or hearings (or communications indicating that the same may be contemplated) of any Governmental Entity if such emergency, change, complaint, investigation or hearing would have a Material Adverse Effect on ASARCOsuch party; (e) ASARCO shall notnone of the parties shall, and none of the parties shall not permit any of its Subsidiaries to, (i) declare, set aside, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of stock, except in the case of Parent for regular quarterly cash dividends on the outstanding shares of Parent Common Stock and in the case of ASARCO and its majority owned subsidiary Southern Peru Copper Corporation for regular quarterly cash dividends on the outstanding shares of their common stock and except for cash dividends by a wholly owned Subsidiary to a parent, or (ii) split, combine or reclassify any of its shares of capital stock; (f) ASARCO shall notnone of the parties shall, and none of the parties shall not permit any of its Subsidiaries to, except (i) in the ordinary course of business consistent with past practice, (ii) as otherwise provided in this Agreement or (iii) as required by applicable Law, adopt or amend any Employee Benefit Plan; (g) ASARCO shall notnone of the parties shall, and none of the parties shall not permit any of its Subsidiaries to, authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the ASARCO MergerOffer and the ASARCO Merger and for Parent's Offer to purchase all of the outstanding shares of common stock of Cyprus Amax Minerals Company and the related merger of Cyprus Amax Minerals Company with a Subsidiary of Parent), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights, in each case not in the ordinary course of business; (h) ASARCO shall notnone of the parties shall, and none of the parties shall not permit its Subsidiaries to, propose or adopt any amendments to its certificate of incorporation or by-laws or other similar governing documents; (i) ASARCO shall notnone of the parties shall, and none of the parties shall not permit any of its Subsidiaries to, issue or authorize the issuance of, or agree to issue or sell any shares of their capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for the issuance of shares of Parent Common Stock by Parent and ASARCO Common Stock by ASARCO upon the exercise of stock options or other rights to acquire ASARCOsuch party's capital stock, in each case which securities, options and rights are outstanding as of the date of this Agreement and such issuance is made in accordance with the terms of such securities, options and rights in effect on the date of this Agreement; provided that ASARCO shall not issue any shares of ASARCO Common Stock or any other shares of capital stock or other securities convertible into or representing the right to receive shares of ASARCO Common Stock after consummation of the Tender Offer; (j) ASARCO shall notnone of the parties shall, and none of the parties shall not permit any of its Subsidiaries to, except in the ordinary course of business in connection with employee incentive and benefit plans, programs or arrangements in existence on the date hereof, purchase or redeem any shares of its stock or any rights, warrants or options to acquire any such shares; (k) ASARCO shall notnone of the parties shall, and none of the parties shall not permit any of its Subsidiaries to, incur, assume or prepay any indebtedness or any other material liabilities, other than indebtedness between such party and a wholly owned Subsidiary or between wholly owned Subsidiaries, provided, in either such case, such wholly owned Subsidiaries remain wholly owned Subsidiaries, and other than in the ordinary course of business consistent with past practice; (l) ASARCO shall notnone of the parties shall, and none of the parties shall not permit any of its Subsidiaries to, sell, lease, license, mortgage or otherwise encumber or subject to any Lien Encumbrance or otherwise dispose of any of its properties or assets (including securitizations), other than in the ordinary course of business consistent with past practice and other than the consummation of contracts of sale executed and delivered prior to the date hereof; (m) ASARCO shall notnone of the parties shall, and none of the parties shall permit any of its Subsidiaries to, take any action that would reasonably be expected to cause the ASARCO Merger not to constitute a transaction described in Section 368(a) of the Code; (n) none of the parties shall, and none of the parties shall permit any of its Subsidiaries to make any material Tax election or settle or compromise any material Tax liability, other than in the ordinary course of business consistent with past practice; and (no) ASARCO shall notnone of the parties shall, and none of the parties shall not permit any of its Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions or take any action which would (i) make any representation or warranty made by such party in Article III IV hereof untrue or incorrect or (ii) result in any of the conditions to the Tender Offer or the ASARCO Merger set forth in Article VI not being satisfied.

Conduct of Business Pending the Effective Time. From Each of NYCB and after Xxxxxx agrees, as to itself and its subsidiaries, that, except insofar as the date hereof and prior other party shall otherwise consent in writing (such consent not to the Effective Time be unreasonably withheld or delayed) or except as otherwise expressly contemplated by this Plan or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1 (the "Termination Date"), and except as may be agreed in writing by the other parties hereto Stock Option Agreements or as may be provided for or permitted pursuant to this Agreementset forth in paragraph 4.1 of its Disclosure Letter: (a) ASARCO shallIn the case of Xxxxxx only, the business of it and shall cause each of its Subsidiaries to, conduct its operations according to their subsidiaries will be conducted only in the ordinary and usual course of business in substantially and, to the same manner as heretofore conducted; (b) ASARCO shall extent consistent therewith, it and its subsidiaries will use its all reasonable best efforts, and cause each of its Subsidiaries to use its reasonable best efforts, efforts to preserve intact its their business organizations and goodwillassets and maintain their rights, keep available the services of its current officers franchises and other key employees and preserve its relationships with those persons having business dealings with it (including its relationships existing relations with customers, suppliers, employees and business partners);associates. (b) In the case of NYCB only, it and its subsidiaries will use all reasonable best efforts to preserve intact their business organizations and assets and maintain their rights, franchises and existing relations with customers, suppliers, employees and business associates. (c) ASARCO Except as required by law, it and its Subsidiaries will not knowingly take any action that would (i) adversely affect the ability of any of them to obtain (A) any Regulatory Approval or (B) the opinions of tax counsel referred to, in the case of NYCB, in Section 5.2(c) and, in the case of Xxxxxx, in Section 5.3(c), or (ii) adversely affect its ability to perform its obligations under this Plan or the Stock Option Agreements or (iii) reasonably be expected to have a Material Adverse Effect; provided, however, that nothing contained Table of Contents herein shall confer at such times limit the ability of Xxxxxx to exercise the NYCB Stock Option Agreement and NYCB to exercise the Xxxxxx Stock Option Agreement, as Parent the case may reasonably request with one or more representatives of such requesting party to report material operational matters and the general status of ongoing operations (to the extent such requesting party reasonably requires such information);be. (d) ASARCO shall notify Parent of any emergency or other change in the normal course of its or its Subsidiaries' respective businesses or in the operation of its or its Subsidiaries, respective properties and of any complaints or hearings (or communications indicating that the same may be contemplated) of any Governmental Entity if such emergency, change, complaint, investigation or hearing would have a Material Adverse Effect on ASARCO; (e) ASARCO shall not, and shall It will not permit any of its Subsidiaries to, (i) declare, set aside, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of stock, except in the case of ASARCO Xxxxxx only, sell or pledge, agree to sell or pledge, or permit any Lien to exist on, any stock owned by it or any of its material subsidiaries as of the date hereof; (ii) amend or restate its certificate of incorporation or bylaws except, in the case of NYCB and its majority owned subsidiary Southern Peru Copper Corporation subsidiaries only, to authorize additional common or preferred shares, to designate the terms of any preferred shares or to provide for regular quarterly cash dividends on multiple chairmen of the outstanding shares of their common stock and except for cash dividends by a wholly owned Subsidiary to a parent, or Board; (iiiii) split, combine or reclassify any of its shares of outstanding capital stock; ; (fiv) ASARCO shall notexcept as permitted by Section 4.2, and shall not permit split, declare, set aside or pay any dividend or distribution payable in cash, stock or other property with respect to any of its Subsidiaries to, except capital stock; or (iv) in the ordinary course case of business consistent with past practiceXxxxxx only, (ii) as repurchase, redeem or otherwise provided in this Agreement acquire, or (iii) as required by applicable Law, adopt or amend any Employee Benefit Plan; (g) ASARCO shall not, and shall not permit any of its Subsidiaries tosubsidiary to purchase or otherwise acquire, authorizedirectly or indirectly, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the ASARCO Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights, in each case not in the ordinary course of business; (h) ASARCO shall not, and shall not permit its Subsidiaries to, propose or adopt any amendments to its certificate of incorporation or by-laws or other similar governing documents; (i) ASARCO shall not, and shall not permit any of its Subsidiaries to, issue or authorize the issuance of, or agree to issue or sell any shares of their its capital stock of or any class (whether through the issuance securities convertible into or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except exercisable for the issuance of any shares of ASARCO Common Stock by ASARCO upon its capital stock, other than in connection with the exercise of stock options or other rights to acquire ASARCO's capital stock, in each case which securities, options any Rights it has granted and rights are has outstanding as of the date of hereof or issued hereafter as permitted by this Agreement and such issuance is made Plan in accordance with the terms of such securities, options and rights in effect on the date of this Agreement; provided that ASARCO shall not issue any shares of ASARCO Common Stock or any other shares of capital stock or other securities convertible into or representing the right to receive shares of ASARCO Common Stock after consummation of the Tender Offer;thereof. (je) ASARCO shall notIn the case of Xxxxxx only, and shall not permit neither it nor any of its Subsidiaries tosubsidiaries will (i) issue, except in sell, pledge, dispose of or encumber, or authorize or propose the ordinary course issuance, sale, pledge, disposition or encumbrance of, any shares of, or securities convertible or exchangeable for, or options, warrants, calls, commitments or rights of business in connection with employee incentive and benefit plansany kind to acquire, programs or arrangements in existence on the date hereof, purchase or redeem any shares of its capital stock of any class, except pursuant to this Plan, the Xxxxxx Stock Option Agreement, or any rights, warrants in connection with the exercise of Rights outstanding as of the date hereof or options to acquire any such shares; issued thereafter as permitted by this Plan; (kii) ASARCO shall not, and shall not permit any of its Subsidiaries to, incur, assume or prepay any indebtedness or any other material liabilities, other than indebtedness between such party and a wholly owned Subsidiary or between wholly owned Subsidiaries, provided, in either such case, such wholly owned Subsidiaries remain wholly owned Subsidiaries, and other than in the ordinary course of business consistent with past practice; (l) ASARCO shall not, and shall not permit any of its Subsidiaries to, selltransfer, lease, license, mortgage guarantee, sell, mortgage, pledge or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties other material property or assets or encumber any property or assets other than to a direct or indirect wholly owned subsidiary of it; or (including securitizations), iii) authorize capital expenditures other than in the ordinary and usual course of business consistent with past practice and other than the consummation of contracts of sale executed and delivered prior to the date hereof;practice. (mf) ASARCO shall notExcept for internal reorganizations involving existing subsidiaries, and shall not permit or in satisfaction of debts previously contracted in good faith, neither it nor any of its Subsidiaries to subsidiaries will make any material Tax election acquisition of, or settle investment in, assets or compromise stock of any other Person (provided, in the case of NYCB, that the foregoing shall apply only to the extent such material Tax liabilityacquisition or investment has or would reasonably be expected to have a Material Adverse Effect on NYCB). (g) In the case of Xxxxxx only, other than in the ordinary course of business consistent with past practice; and (n) ASARCO shall not, and shall not permit neither it nor any of its Subsidiaries tosubsidiaries will incur any indebtedness for borrowed money or assume, agreeguarantee, in writing endorse or otherwiseotherwise as an accommodation become responsible for the obligations of any other Person or make any loan or advance. (h) In the case of Xxxxxx only, to take neither it nor any of the foregoing actions or take any action which would its subsidiaries will (i) make grant any representation increase in compensation or warranty benefits to its employees, except as required by contractual obligations in Article III effect as of the date hereof untrue and set forth in Roslyn’s Disclosure Letter or incorrect appoint any new or existing employee to the position of Vice President or higher; (ii) result pay any bonus except as required by contractual obligations in any effect as of the conditions to the Tender Offer or the ASARCO Merger date hereof that are set forth in Article VI not being satisfiedRoslyn’s Disclosure Letter; (iii) grant any severance or termination pay to any director or employee except as consistent with past practice or required under contractual obligations in effect as of the date hereof that are set forth in Roslyn’s Disclosure Letter; (iv) enter into or amend any employment, severance or similar or related agreement with any director or employee; (v) grant any increase in fees or other increases in compensation or other benefits to any of its present or former directors; or (vi) effect any change in retirement benefits for any class of its employees (unless such change is required by applicable law or, in the opinion of counsel, is necessary or advisable to maintain the tax qualification of any plan under which the retirement benefits are provided). (i) In the case of Xxxxxx only, except as may be required to satisfy contractual obligations existing as of the date hereof and set forth in Roslyn’s Disclosure Letter and as required by applicable law, neither it nor any of its subsidiaries will establish, adopt, enter into or make any new, or amend any existing, collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, employee stock ownership, deferred compensation, employment, termination, severance or other plan, agreement, trust or fund for the benefit of any directors or employees.