Common use of Conduct of Business Prior to Closing Date Clause in Contracts

Conduct of Business Prior to Closing Date. (a) Except as may be otherwise contemplated by this Agreement or required by any of the documents listed in the Disclosure Schedule or except as Buyer may otherwise consent to in writing (which consent shall not be unreasonably withheld), between the date hereof and the Closing Date, the Company will continue to conduct its operations and business in the ordinary course as conducted on the date hereof and will not engage in or permit any transactions outside the ordinary course. The parties hereby agree that transactions outside the ordinary course include for the purposes of this paragraph 5.1(a), without limitation, any business combination transaction, the offer or sale of any debt or equity securities or rights or options to acquire such securities, the sale of any assets, the modification of any material agreement or the execution of any material agreement, commitment, agreement in principal or letter of intent, the incurrence of any material liability, agreeing to any compensation for any executive officer or employee, any distributions with respect to any capital stock, the grant or issuance of any option, warrant or other derivative security, and the amendment, termination of or default under any material agreements or contracts. Seller will cause the Company not to (i) make any change in the Company's Certificate of Incorporation, By-Laws or similar charter documents; (ii) make any change in its issued or outstanding capital stock, or issue any warrant, option or other right to purchase shares of its capital stock or any security convertible into shares of its capital stock, or redeem, purchase or otherwise acquire any shares of its capital stock, or declare any dividends or make any other distribution in respect of its capital stock; (iii) voluntarily incur or assume, whether directly or by way of guarantee or otherwise, any material obligation or liability; (iv) mortgage, pledge or encumber any material part of its properties or assets, tangible or intangible; (v) sell or transfer any material part of its assets, property or rights, or cancel any material debts or claims; (vi) amend or terminate any Company Contract or any Company Material Permit to which it is a party; (vii) adopt any employee benefit plan; (viii) make any changes in the accounting methods, principles or practices employed by it, except as required by generally accepted accounting principles; (ix) make any capital expenditure or enter into any commitment therefor; (x) incur any debt or make any borrowings, or enter into any commitment therefor; or (xi) enter into any other agreement, course of action or transaction material to the Company. (b) Except as may be otherwise contemplated by this Agreement or required by any of the documents listed in the Disclosure Schedule or except as Seller may otherwise consent to in writing (which consent shall not be unreasonably withheld), between the date hereof and the Closing Date, the Buyer will continue to conduct its business in the ordinary course as conducted on the date hereof and will not engage in or permit any transactions outside the ordinary course. The parties hereby agree that transactions outside the ordinary course include for the purposes of this paragraph 5.1(b), without limitation, any business combination transaction, the offer or sale of any debt or equity securities or rights or options to acquire such securities, the sale of any assets, the modification of any material agreement or the execution of any material agreement, commitment, agreement in principal or letter of intent, the incurrence of any material liability, agreeing to any compensation for any executive officer or employee, any distributions with respect to any capital stock, the grant or issuance of any option, warrant or other derivative security, and the amendment, termination of or default under any material agreements or contracts. Except as set forth in the Disclosure Schedule, Buyer will not (i) make any change in its Certificate of Incorporation, By-Laws or similar charter documents; (ii) make any change in its issued or outstanding capital stock, or issue any warrant, option or other right to purchase shares of its capital stock or any security convertible into shares of its capital stock, or redeem, purchase or otherwise acquire any shares of its capital stock, or declare any dividends or make any other distribution in respect of its capital stock; (iii) voluntarily incur or assume, whether directly or by way of guarantee or otherwise, any material obligation or liability; (iv) mortgage, pledge or encumber any material part of its properties or assets, tangible or intangible; (v) sell or transfer any material part of its assets, property or rights, or cancel any material debts or claims; (vi) amend or terminate any Buyer Contract or any Buyer Material Permit to which it is a party; (vii) adopt any employee benefit plan; (viii) make any changes in the accounting methods, principles or practices employed by it, except as required by generally accepted accounting principles; (ix) make any capital expenditure or enter into any commitment therefor; (x) incur any debt or make any borrowings, or enter into any commitment therefor; or (xi) enter into any other agreement, course of action or transaction material to the Buyer.

Conduct of Business Prior to Closing Date. (a) Except as may be otherwise contemplated by this Agreement or required by any of Unless BRC and the documents listed in Company agree otherwise, during the Disclosure Schedule or except as Buyer may otherwise consent to in writing period pending the Closing Time, the Company: (which consent 1) shall not be unreasonably withheld)issue any additional shares of Company Common Stock, between except in connection with the date hereof and exercise of options or other instruments described on Schedule 3.3, or change the Closing Dateoutstanding ------------ number of shares of Company Common Stock into a different number of shares or a different class by reason of reclassification, recapitalization, split-up, combination, exchange of shares, readjustment, stock split, stock dividend or otherwise; (2) shall not issue, sell or grant options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the Company will continue to conduct its operations and business in the ordinary course as conducted on the date hereof and will not engage in or permit any transactions outside the ordinary course. The parties hereby agree that transactions outside the ordinary course include for the purposes of this paragraph 5.1(a), without limitation, any business combination transaction, the offer issuance or sale of any debt or equity securities of the capital stock of the Company or rights or options to acquire such securities, the sale of any assets, the modification of any material agreement obligations convertible into or the execution of any material agreement, commitment, agreement in principal or letter of intent, the incurrence of any material liability, agreeing to any compensation exchangeable for any executive officer shares of the capital stock of the Company; (3) shall not declare, pay or employee, set aside for payment any distributions with respect to any capital stock, the grant or issuance of any option, warrant dividend or other derivative security, and distribution in respect of the amendment, termination of or default under any material agreements or contracts. Seller will cause the Company not to (i) make any change in the Company's Certificate of Incorporation, By-Laws or similar charter documents; (ii) make any change in its issued or outstanding capital stock, or issue any warrant, option or other right to purchase shares of its capital stock or any security convertible into shares other equity securities of its capital stock, the Company or redeem, purchase or otherwise acquire any shares of the capital stock or other securities of the Company or rights or obligations convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (4) shall not intentionally take any action that, and shall not intentionally fail to take any action the failure to take which, would cause or permit its capital stock, or declare any dividends or make any other distribution representations and warranties contained in respect of its capital stock; (iii) voluntarily incur or assume, whether directly or by way of guarantee or otherwise, this Agreement to be untrue in any material obligation or liability; (iv) mortgage, pledge or encumber any material part of its properties or assets, tangible or intangible; (v) sell or transfer any material part of its assets, property or rights, or cancel any material debts or claims; (vi) amend or terminate any Company Contract or any Company Material Permit to which it is a party; (vii) adopt any employee benefit plan; (viii) make any changes in respect at the accounting methods, principles or practices employed by it, except as required by generally accepted accounting principles; (ix) make any capital expenditure or enter into any commitment therefor; (x) incur any debt or make any borrowings, or enter into any commitment therefor; or (xi) enter into any other agreement, course of action or transaction material to the Company.Closing; (b5) Except as may be otherwise contemplated by this Agreement or required by any of the documents listed in the Disclosure Schedule or except as Seller may otherwise consent to in writing (which consent shall not be unreasonably withheld), between the date hereof and the Closing Date, the Buyer will continue to conduct its business sell any assets not in the ordinary course as conducted on the date hereof and will not engage of business; (6) shall conduct its operations in or permit any transactions outside the ordinary course. The parties hereby agree that transactions outside and usual course of business consistent with past and current practices, and shall use its good faith efforts to maintain and preserve intact its business organization and goodwill, to retain the ordinary course include for the purposes services of this paragraph 5.1(b)its key officers and employees, without limitationand to maintain satisfactory relationships with suppliers, any customers, and others having business combination transaction, the offer or sale relationships with it; (7) shall notify BRC of any debt or equity securities or rights or options to acquire such securities, the sale of any assets, the modification of any material agreement or the execution of any material agreement, commitment, agreement in principal or letter of intent, the incurrence of any material liability, agreeing to any compensation for any executive officer or employee, any distributions with respect to any capital stock, the grant or issuance of any option, warrant emergency or other derivative security, and the amendment, termination of or default under any material agreements or contracts. Except as set forth change in the Disclosure Schedulenormal course of Company business; (8) shall not settle, Buyer will compromise or discharge any lawsuit, claim or proceeding or enter into an agreement to do any of the foregoing without the prior written consent of BRC; (9) shall not (i) make any change in its Certificate of Incorporation, By-Laws or similar charter documents; (ii) make any change in its issued or outstanding capital stock, or issue any warrant, option or other right to purchase shares of its capital stock or any security convertible into shares of its capital stock, or redeem, purchase or otherwise acquire any shares of its capital stock, ; (10) shall not award or declare pay any dividends increase in compensation or make base salary or award or pay any other distribution in respect of its capital stock; special or cumulative bonus; (iii) voluntarily incur or assume, whether directly or by way of guarantee or otherwise, any material obligation or liability; (iv) mortgage, pledge or encumber any material part of its properties or assets, tangible or intangible; (v) sell or transfer any material part of its assets, property or rights, or cancel any material debts or claims; (vi) amend or terminate any Buyer Contract or any Buyer Material Permit to which it is a party; (vii) adopt any employee benefit plan; (viii) make any changes in the accounting methods, principles or practices employed by it, except as required by generally accepted accounting principles; (ix) make any capital expenditure or enter into any commitment therefor; (x) incur any debt or make any borrowings, or enter into any commitment therefor; or (xi11) enter into any other employment, consulting, brokerage, royalty or commission agreement or arrangement; (12) enter into, or modify any agreement, course of action arrangement, understanding or transaction material of any kind or character with any Individual or any person or entity affiliated or associated with any Individual; or (13) enter into any agreement to do any of the things described in clauses (1) through (12) above. (b) Each of BRC and the Company agrees that, after the date hereof (and except for the Merger and related transactions specifically contemplated by this Agreement), it will not take or omit to take any action which would cause the Merger not to qualify as a reorganization within the meaning of Section 368 of the Code, including without limitation: (1) any sale, exchange, distribution, transfer or other disposition of the assets of the Company that would cause the Merger to fail to satisfy the "continuity of business enterprise" requirement of Section 1.368-1(d) of the regulations promulgated pursuant to the BuyerCode or the "substantially all of the properties" requirements of Section 368(a)(2)(E) of the Code; (2) any reacquisition of shares of the Company's Common Stock that would result in BRC failing to obtain or losing control of the Company within the meaning of Section 368(c) of the Code.

Conduct of Business Prior to Closing Date. (a) Except as may be otherwise contemplated by set forth on the Company Disclosure Schedule, during the period from the date of this Agreement or required by any of the documents listed in the Disclosure Schedule or except as Buyer may otherwise consent to in writing (which consent shall not be unreasonably withheld), between the date hereof and the Closing Date, the Company will continue shall, and shall cause its officers and directors to, use their collective best efforts to conduct preserve intact the Company's business organization and to maintain satisfactory relationships with licensors, suppliers, distributors, employees and customers. Prior to the Closing Date, the Company shall, and shall cause its operations officers and directors to, notify and consult with WEC before taking any material action or entering into any material agreement with respect to the Company's business or assets. Prior to the Closing Date, the Company shall not, and shall ensure that its officers and directors shall not, without the prior written consent of WEC, which shall not be unreasonably withheld, or except as specifically contemplated by this Agreement: (a) amend its Articles of Incorporation or Bylaws; (b) authorize for issuance, issue, deliver or sell any additional shares of its capital stock of any class (except upon the exercise of options existing as of the date of this Agreement), or securities convertible into shares of such stock, or issue or grant any rights, options or other commitments for the issuance of shares of such stock or such convertible securities or accelerate the vesting date of any such rights, options or other commitments; provided, however, that the Company may, in the ordinary course as conducted on the date hereof and will not engage in or permit any transactions outside the ordinary course. The parties hereby agree that transactions outside the ordinary course include of business, grant options for the purposes purchase of this paragraph 5.1(a)Company Common Stock under the Equity Incentive Plan to new employees hired in accordance with subsection (g) below so long as the total number of options outstanding under the Equity Incentive Plan does not exceed the total number of shares reserved for issuance under the Equity Incentive Plan as of August 19, without limitation1998; (c) split, combine or reclassify any business combination transaction, the offer or sale of any debt or equity securities or rights or options to acquire such securities, the sale of any assets, the modification of any material agreement or the execution of any material agreement, commitment, agreement in principal or letter of intent, the incurrence of any material liability, agreeing to any compensation for any executive officer or employee, any distributions with respect to any capital stock, the grant or issuance of any option, warrant or other derivative security, and the amendment, termination of or default under any material agreements or contracts. Seller will cause the Company not to (i) make any change in the Company's Certificate of Incorporation, By-Laws or similar charter documents; (ii) make any change in its issued or outstanding capital stock, or issue any warrant, option or other right to purchase shares of its capital stock or declare, set aside or pay any security convertible into shares of its capital stock, dividend or redeem, purchase or otherwise acquire any shares of its capital stock, or declare any dividends or make any other distribution (whether in cash, stock or property) in respect of its capital stock or purchase or redeem or otherwise acquire any of its capital stock; ; (iiid) voluntarily incur dispose of or assume, whether directly or by way of guarantee or otherwise, acquire any material obligation or liability; (iv) mortgage, pledge or encumber any material part of its properties or assets, tangible except in the ordinary course of business; (e) engage in any activities or intangible; transactions that are outside the ordinary course of the Company's business or which could reasonably be anticipated to materially adversely affect the Company's business or assets; (vf) sell enter into or transfer materially amend any material part consulting agreement or employment agreement or increase the compensation payable or to become payable by it to any of its assetsofficers, property employees or rightsagents over the amounts payable as of December 31, 1997, or cancel any material debts adopt or claims; (vi) materially amend or terminate any Company Contract or any Company Material Permit to which it is a party; (vii) adopt any employee benefit plan; (viii) make any changes plan or arrangement, other than agreements, increases or amendments in the accounting methods, principles ordinary course of business or practices employed required by itlaw; (g) extend offers of employment or hire any new employees or consultants, except as required by generally accepted accounting principlesin the ordinary course of business consistent with past practice; (h) incur any Indebtedness, other than in the ordinary course of business; or (ixi) authorize or make any capital expenditure or enter into any commitment therefor; (x) incur any debt or make any borrowingsin excess of $25,000, or enter into any commitment therefor; or (xi) enter into any other agreement, course of action or transaction material to the Company. (b) Except as may be otherwise contemplated by this Agreement or required by any of the documents listed in the Disclosure Schedule or except as Seller may otherwise consent to in writing (which consent shall not be unreasonably withheld), between the date hereof and the Closing Date, the Buyer will continue to conduct its business for expenditures made in the ordinary course as conducted on the date hereof and will not engage in or permit any transactions outside the ordinary course. The parties hereby agree that transactions outside the ordinary course include for the purposes of this paragraph 5.1(b), without limitation, any business combination transaction, the offer or sale of any debt or equity securities or rights or options to acquire such securities, the sale of any assets, the modification of any material agreement or the execution of any material agreement, commitment, agreement in principal or letter of intent, the incurrence of any material liability, agreeing to any compensation for any executive officer or employee, any distributions consistent with respect to any capital stock, the grant or issuance of any option, warrant or other derivative security, past practice and the amendment, termination of or default under any material agreements or contracts. Except as set forth in the Disclosure Schedule, Buyer will not (i) make any change in its Certificate of Incorporation, By-Laws or similar charter documents; (ii) make any change in its issued or outstanding capital stock, or issue any warrant, option or other right to purchase shares of its capital stock or any security convertible into shares of its capital stock, or redeem, purchase or otherwise acquire any shares of its capital stock, or declare any dividends or make any other distribution in respect of its capital stock; (iii) voluntarily incur or assume, whether directly or by way of guarantee or otherwise, any material obligation or liability; (iv) mortgage, pledge or encumber any material part of its properties or assets, tangible or intangible; (v) sell or transfer any material part of its assets, property or rights, or cancel any material debts or claims; (vi) amend or terminate any Buyer Contract or any Buyer Material Permit to which it is a party; (vii) adopt any employee benefit plan; (viii) make any changes in the accounting methods, principles or practices employed by it, except as required by generally accepted accounting principles; (ix) make any Company's capital expenditure or enter into any commitment therefor; (x) incur any debt or make any borrowings, or enter into any commitment therefor; or (xi) enter into any other agreement, course of action or transaction material to the Buyerbudget.

Conduct of Business Prior to Closing Date. (a) Except as may be otherwise contemplated by this Agreement or required by any of During the documents listed in the Disclosure Schedule or except as Buyer may otherwise consent to in writing (which consent shall not be unreasonably withheld), between the date hereof and period until the Closing Date, Parent shall (unless otherwise consented to in writing by the Company will continue to Company) conduct its operations and business in the ordinary and usual course as conducted on of business consistent with past and current practices, and shall use its best efforts to maintain and preserve intact its business organization and goodwill, to retain the date hereof services of its key officers and will employees, and to maintain satisfactory relationships with its customers, suppliers and others having business relationships with it. Without limiting the foregoing, Parent without the prior approval of the Company: (a) shall not engage in incur additional obligations, or permit prepay any transactions outside the ordinary course. The parties hereby agree that transactions obligations, for borrowed money, encumber assets, purchase or sell any assets outside the ordinary course include for of business, commit to material capital expenditures or increase or authorize an increase in employee compensation or benefits; (b) shall confer, from time to time, with one or more representatives of the purposes Company as reasonably requested to report material operational matters and the general status of this paragraph 5.1(a)ongoing operations; (c) shall notify the Company of any emergency or other change in the normal course of the Company business and of any governmental complaints, investigations, hearings or inquiries (or communications indicating that the same may be contemplated) including, without limitation, complaints, investigations, hearings or inquiries relating to any business combination transactionGovernmental Permits held by Parent or which could result from the consummation of the transaction contemplated hereby; (d) shall not issue or sell any shares of the capital stock of Parent or issue, sell or grant options, warrants or rights to purchase or subscribe to any of the offer or sale capital stock of any debt or equity securities Parent or rights or options to acquire such securities, the sale of any assets, the modification of any material agreement obligations convertible into or the execution of any material agreement, commitment, agreement in principal or letter of intent, the incurrence of any material liability, agreeing to any compensation exchangeable for any executive officer shares of the capital stock of Parent, or employeemake any changes (by stock dividend, split-up, combination, recapitalization, reclassification, reorganization or otherwise) in the capital structure of Parent; (e) shall not declare, pay or set aside for payment any distributions with respect to any capital stock, the grant or issuance of any option, warrant dividend or other derivative security, and distribution in respect of the amendment, termination of or default under any material agreements or contracts. Seller will cause the Company not to (i) make any change in the Company's Certificate of Incorporation, By-Laws or similar charter documents; (ii) make any change in its issued or outstanding capital stock, or issue any warrant, option or other right to purchase shares of its capital stock or any security convertible into shares other equity securities of its capital stockParent, or and not redeem, purchase or otherwise acquire any shares of its the capital stockstock or other securities of Parent or rights or obligations convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (f) shall not settle, compromise or declare discharge any dividends lawsuit, claim or make proceeding where the proposed settlement amount for all such settlements, compromises and discharges would exceed $25,000; (g) shall not intentionally take any other distribution in respect action that, and shall not intentionally fail to take any action the failure to take which, would cause or permit any of its capital stock; (iii) voluntarily incur or assume, whether directly or by way of guarantee or otherwise, representations and warranties contained in this Agreement to be untrue in any material obligation or liabilityrespect at the Closing; or (ivh) mortgage, pledge or encumber any material part of its properties or assets, tangible or intangible; (v) sell or transfer any material part of its assets, property or rights, or cancel any material debts or claims; (vi) amend or terminate any Company Contract or any Company Material Permit to which it is a party; (vii) adopt any employee benefit plan; (viii) make any changes in the accounting methods, principles or practices employed by it, except as required by generally accepted accounting principles; (ix) make any capital expenditure or shall not enter into any commitment therefor; (x) incur any debt or make any borrowings, or enter into any commitment therefor; or (xi) enter into any other agreement, course understanding, arrangement or letter of action intent (whether or transaction material not binding in whole or in part) to do any of the things which it has covenanted not to do without the prior approval of the Company. (b) Except as may be otherwise contemplated by this Agreement or required by any of the documents listed in the Disclosure Schedule or except as Seller may otherwise consent to in writing (which consent shall not be unreasonably withheld), between the date hereof and the Closing Date, the Buyer will continue to conduct its business in the ordinary course as conducted on the date hereof and will not engage in or permit any transactions outside the ordinary course. The parties hereby agree that transactions outside the ordinary course include for the purposes of this paragraph 5.1(b), without limitation, any business combination transaction, the offer or sale of any debt or equity securities or rights or options to acquire such securities, the sale of any assets, the modification of any material agreement or the execution of any material agreement, commitment, agreement in principal or letter of intent, the incurrence of any material liability, agreeing to any compensation for any executive officer or employee, any distributions with respect to any capital stock, the grant or issuance of any option, warrant or other derivative security, and the amendment, termination of or default under any material agreements or contracts. Except as set forth in the Disclosure Schedule, Buyer will not (i) make any change in its Certificate of Incorporation, By-Laws or similar charter documents; (ii) make any change in its issued or outstanding capital stock, or issue any warrant, option or other right to purchase shares of its capital stock or any security convertible into shares of its capital stock, or redeem, purchase or otherwise acquire any shares of its capital stock, or declare any dividends or make any other distribution in respect of its capital stock; (iii) voluntarily incur or assume, whether directly or by way of guarantee or otherwise, any material obligation or liability; (iv) mortgage, pledge or encumber any material part of its properties or assets, tangible or intangible; (v) sell or transfer any material part of its assets, property or rights, or cancel any material debts or claims; (vi) amend or terminate any Buyer Contract or any Buyer Material Permit to which it is a party; (vii) adopt any employee benefit plan; (viii) make any changes in the accounting methods, principles or practices employed by it, except as required by generally accepted accounting principles; (ix) make any capital expenditure or enter into any commitment therefor; (x) incur any debt or make any borrowings, or enter into any commitment therefor; or (xi) enter into any other agreement, course of action or transaction material to the Buyer.