Common use of CONDUCT OF BUSINESS PRIOR TO CLOSING; OTHER COVENANTS Clause in Contracts

CONDUCT OF BUSINESS PRIOR TO CLOSING; OTHER COVENANTS. Section 5.1 Conduct of Business of the Company Pending the Closing. Except as contemplated by this Agreement, the Seller shall cause the Acquired Entities and their respective subsidiaries to, during the period from the date of this Agreement to the Closing Date, (i) act and carry on their respective businesses in the ordinary course of business and, to the extent consistent therewith, use reasonable efforts, to preserve intact their current business organizations, keep available the services of their current key officers and employees and preserve the goodwill of those engaged in material business relationships with them, (ii) maintain and keep their properties and equipment in good repair, working order and condition, consistent with current condition, except for ordinary wear and tear, (iii) use their reasonable best efforts to keep in full force and effect insurance comparable in amount and scope of coverage to that now maintained by each of them, and (iv) perform in all material respects all of its obligations under all contracts and commitments applicable to its business or properties (subject to each Acquired Entity's right to enter into comparable substitute arrangements, consistent with past practice, on terms generally no less favorable to it than those in effect on the date hereof). Without limiting the generality of the foregoing, the Seller shall use its reasonable best efforts to cause the Acquired Entities and their respective subsidiaries during the period from the date of this Agreement to the Closing Date, except as expressly contemplated by this Agreement, not to take any of the following actions without the prior written consent of the Purchaser: (a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its outstanding capital stock (other than cash dividends by a wholly-owned subsidiary of an Acquired Entity to an Acquired Entity), (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock (except to increase the authorized number of shares of Seller Common Stock from 25,000,000 to 50,000,000) or (iii) purchase, redeem or otherwise acquire any outstanding capital stock of such Acquired Entity or any of its subsidiaries, or any rights, warrants or options to acquire any such capital stock; (b) authorize for issuance, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stock, or any securities convertible, exchangeable or exercisable into, or any rights, warrants or options to acquire, any such capital stock, or other equity equivalents (including without limitation stock appreciation rights); (i) increase or accelerate the compensation or fringe benefits of any of its directors, officers or employees, except for increases in salary or wages of employees of the Acquired Entities or their respective subsidiaries in the ordinary course of business in accordance with past practice, (ii) grant any severance or termination pay not currently required to be paid on the date hereof, (iii) enter into any employment agreement with any present or former director or officer or senior employee, or, other than in the ordinary course of business consistent with past practice and terminable without severance or other termination payment on 30 days' notice or less, any other employee of any Acquired Entity or any of its subsidiaries, or (iv) establish, adopt, enter into or amend or terminate any plan, agreement, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees of any Acquired Entity or its subsidiaries; (d) amend its Charter (except to increase the authorized number of shares of Seller Common Stock from 25,000,000 to 50,000,000), Bylaws or other comparable charter or organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the entity structure or ownership of any of the Acquired Entities or their respective subsidiaries; (e) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, assets or properties of (including through the exercise of any right of first refusal or the exercise of any option to purchase or convert), or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (ii) any material assets or properties, except in the ordinary course of business consistent with past practice; (f) sell or otherwise dispose of any of its properties or assets, except in the ordinary course of business for cash consideration equal to fair market value at the time of such sale or other disposition as determined by the board of directors of such Acquired Entity in good faith; (g) lease, license, mortgage or otherwise encumber any of its properties or assets, except in the ordinary course of business consistent with past practice; (h) amend, supplement or modify any material contract, except in the ordinary course of business, or relinquish, forgive or cancel any material debt or claim or waive any rights of material value; (i) make any capital expenditure or commitment to make any such expenditure or defer making any budgeted capital expenditure, except in the ordinary course of business consistent with past practice; (j) incur, prepay, or commit to incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person (other than guarantees by an Acquired Entity in favor of the Purchaser or Affiliates of the Purchaser, CMA, or any of its wholly-owned subsidiaries or by any of its subsidiaries in favor of the Purchaser, Affiliates of the Purchaser, or an Acquired Entity) in excess of $100,000 in the aggregate, except in the ordinary course of business consistent with past practice; (k) issue or sell any debt securities or warrants or other rights to acquire any debt securities of an Acquired Entity or any of their respective subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except in the ordinary course of business consistent with past practice; (l) change any accounting principle, method or practice used by it or any change in the classification of assets, recognition of income or expenses or the depreciation or amortization policies or rates theretofore applied, unless required by the SEC or the FASB; (m) make any material Tax election or settle or compromise any income Tax liability in excess of $150,000 in the aggregate or defer the payment of any material Taxes that come due; (n) authorize any of, or commit or agree to take any of, the foregoing actions. To the extent any of the Acquired Entities or any of their respective subsidiaries has done anything in contravention of the acts required or proscribed, as applicable, in this Section 5.1 without the prior written consent of the Purchaser, the Seller will promptly inform the Purchaser, by telephone (with confirmation of details in writing) of such action in contravention.

CONDUCT OF BUSINESS PRIOR TO CLOSING; OTHER COVENANTS. Section 5.1 Conduct of Business of the Company Pending (a) Prior to the Closing. Except as contemplated by this Agreement, the Seller shall Sellers will cause the Acquired Entities Apex Re to conduct its business and their respective subsidiaries to, during the period from the date of this Agreement to the Closing Date, (i) act and carry on their respective businesses affairs only in the ordinary course of business andand consistent with its prior practice and will maintain, to the extent consistent therewithkeep and preserve its assets and properties in good condition and repair and maintain insurance thereon in accordance with present practices, and Sellers will use reasonable efforts, their best efforts (i) to preserve intact their current the business organizations, keep available the services and organization of their current key officers and employees and preserve the goodwill of those engaged in material business relationships with themApex Re intact, (ii) maintain to keep available to Purchaser the services of the Apex Re's present officers, employees, agents and keep their properties and equipment in good repair, working order and condition, consistent with current condition, except for ordinary wear and tearindependent contractors, (iii) use their reasonable best efforts to keep in full force preserve for the benefit of Purchaser the goodwill of banks, suppliers, policy holders, reinsurers, customers, landlords and effect insurance comparable in amount and scope of coverage to that now maintained by each of themothers having business relations with it, and (iv) perform to cooperate with Purchaser and use reasonable efforts to assist Purchaser in all material respects all obtaining the consent of its obligations under all contracts and commitments applicable to its business or properties (subject to each Acquired Entity's right to enter into comparable substitute arrangements, consistent with past practice, on terms generally no less favorable to it than those in effect on any party where the date hereof)consent of such party may be required by reason of the transactions contemplated hereby. Without limiting the generality of the foregoing, prior to the Closing, Sellers shall not without approval of Purchaser: (i) change the articles of association, articles of incorporation or bylaws of Apex Re or merge or consolidate itself or Apex Re or obligate itself to do so with or into any other entity; (ii) solicit, either directly or indirectly, initiate or encourage any offer for the purchase or acquisition of Apex Re or any of its material assets by any party other than Purchaser; or enter into negotiations with any party other than Purchaser concerning any such acquisition; (iii) perform, take any action or incur or permit to exist any of the acts, transactions, events or occurrences of the type (1) described in subparagraphs (i) through (xvi) of Section 5(i) of this Agreement which would have been inconsistent with the representations and warranties set forth therein had the same occurred after the Balance Sheet Date and prior to the date hereof or (2) described in Section 5(m) of this Agreement which would be required to be set forth on Schedule 5(m) hereof. (b) Seller shall give Purchaser prompt written notice of any change in any of the information contained in the representations and warranties made in Sections 5 and 7 or elsewhere in this Agreement or the Schedules referred to herein which occurs prior to the Closing. (c) Purchaser shall give Sellers prompt written notice of any change in any of the information contained in the representations and warranties made in Section 6 or elsewhere in this Agreement or the Schedules referred to herein which occurs prior to the Closing. (d) Beginning on the date of this Agreement, Xx. Xxxxxx X. Allison, III or his designee, shall be entitled to receive notice of and to attend all regular and special meetings of the board of directors and all committees of Apex Re, including, without limitation, the investment committee, the executive committee, the personnel committee, and any other committee of Apex Re. (e) The Parties shall use its reasonable their respective best efforts to cause the Acquired Entities consummation of the transactions contemplated hereby in accordance with all the terms and conditions of this Agreement. Without limiting the foregoing, the Parties shall use their respective subsidiaries during best efforts to obtain and make all consents, approvals, assurances or filings of or with third parties and any Governmental Authority necessary or, in the period opinion of the Parties, advisable for the consummation of the transactions contemplated by this Agreement including, without limitation, approvals from the FRB, the FDIC, the TDB, the OCC, the Texas Insurance Commissioner or the Vermont Insurance Commissioner. Seller, on the one hand, and Purchaser, on the other hand, will promptly comply with all other filing requirements which federal, state or foreign law may impose on them, respectively, with respect to this Agreement. (f) Sellers shall deliver to Purchaser as soon as they become available accurate and complete copies of all reports, forms, and documents filed by Apex Re with any Governmental Authority subsequent to the date of this Agreement hereof and prior to the Closing Date. Such reports, except as expressly contemplated by this Agreementforms, not to take any and documents will comply in all material respects with all applicable requirements of the following actions without the prior written consent of the Purchaser: (a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its outstanding capital stock (other than cash dividends by a wholly-owned subsidiary of an Acquired Entity to an Acquired Entity), (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock (except to increase the authorized number of shares of Seller Common Stock from 25,000,000 to 50,000,000) or (iii) purchase, redeem or otherwise acquire any outstanding capital stock federal and state banking laws. None of such Acquired Entity or any of its subsidiariesreports, or any rightsforms, warrants or options to acquire any such capital stock; (b) authorize for issuanceand documents, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stock, or any securities convertible, exchangeable or exercisable into, or any rights, warrants or options to acquire, any such capital stock, or other equity equivalents (including without limitation stock appreciation rights); (i) increase any financial statements or accelerate the compensation schedules included therein, will contain any untrue statement of a material fact or fringe benefits of omit to state any of its directors, officers or employees, except for increases in salary or wages of employees of the Acquired Entities or their respective subsidiaries in the ordinary course of business in accordance with past practice, (ii) grant any severance or termination pay not currently material fact required to be paid on stated therein or necessary in order to make the date hereofstatements contained therein, (iii) enter into any employment agreement in light of the circumstances under which they were made, not misleading. The financial statements of Apex Re included in such reports, forms, and documents will present fairly, in conformity with any present or former director or officer or senior employeeGAAP, or, other than where regulatory accounting principles supersede GAAP, in conformity with such regulatory accounting principles, applied on a consistent basis the financial position of Apex Re as of the dates thereof and its results of operations for the periods then ended. (g) Sellers shall, prior to Closing, cause the letter of credit in the ordinary course amount of business consistent with past practice and terminable without severance or other termination payment on 30 days' notice or less, any other employee of any Acquired Entity or any of its subsidiaries, or (iv) establish, adopt, enter into or amend or terminate any plan, agreement, trust, fund, policy or arrangement $175,000 issued for the benefit of any current or former directors, officers or employees of any Acquired Entity or its subsidiaries; (d) amend its Charter (except to increase the authorized number of shares of Seller Common Stock from 25,000,000 to 50,000,000), Bylaws or other comparable charter or organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the entity structure or ownership of any of the Acquired Entities or their respective subsidiaries; (e) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, assets or properties of (including through the exercise of any right of first refusal or the exercise of any option to purchase or convert), or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (ii) any material assets or properties, except in the ordinary course of business consistent with past practice; (f) sell or otherwise dispose of any of its properties or assets, except in the ordinary course of business for cash consideration equal to fair market value Apex Re at the time request of such sale or other disposition as determined by the board of directors of such Acquired Entity in good faith; (g) lease, license, mortgage or otherwise encumber any of its properties or assets, except in the ordinary course of business consistent with past practice; (h) amend, supplement or modify any material contract, except in the ordinary course of business, or relinquish, forgive or cancel any material debt or claim or waive any rights of material value; (i) make any capital expenditure or commitment First Preference to make any such expenditure or defer making any budgeted capital expenditure, except in the ordinary course of business consistent with past practice; (j) incur, prepay, or commit be released prior to incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person (other than guarantees by an Acquired Entity in favor of the Purchaser or Affiliates of the Purchaser, CMA, or any of its wholly-owned subsidiaries or by any of its subsidiaries in favor of the Purchaser, Affiliates of the Purchaser, or an Acquired Entity) in excess of $100,000 in the aggregate, except in the ordinary course of business consistent with past practice; (k) issue or sell any debt securities or warrants or other rights to acquire any debt securities of an Acquired Entity or any of their respective subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except in the ordinary course of business consistent with past practice; (l) change any accounting principle, method or practice used by it or any change in the classification of assets, recognition of income or expenses or the depreciation or amortization policies or rates theretofore applied, unless required by the SEC or the FASB; (m) make any material Tax election or settle or compromise any income Tax liability in excess of $150,000 in the aggregate or defer the payment of any material Taxes that come due; (n) authorize any of, or commit or agree to take any of, the foregoing actions. To the extent any of the Acquired Entities or any of their respective subsidiaries has done anything in contravention of the acts required or proscribed, as applicable, in this Section 5.1 without the prior written consent of the Purchaser, the Seller will promptly inform the Purchaser, by telephone (with confirmation of details in writing) of such action in contraventionClosing.

CONDUCT OF BUSINESS PRIOR TO CLOSING; OTHER COVENANTS. Section 5.1 Conduct of Business of the Company Pending (a) Prior to the Closing. Except as contemplated by this Agreement, Seller will cause the Seller shall cause the Acquired Entities Parties to conduct their business and their respective subsidiaries to, during the period from the date of this Agreement to the Closing Date, (i) act and carry on their respective businesses affairs only in the ordinary course of business andand consistent with its prior practice and will maintain, to the extent consistent therewithkeep and preserve their assets and properties in good condition and repair and maintain insurance thereon in accordance with present practices, and Seller will use reasonable efforts, its best efforts (i) to preserve intact their current the business organizations, keep available the services and organization of their current key officers and employees and preserve the goodwill of those engaged in material business relationships with themSeller Parties intact, (ii) maintain to keep available to Purchaser the services of the Seller Parties' present officers, employees, agents and keep their properties and equipment in good repair, working order and condition, consistent with current condition, except for ordinary wear and tearindependent contractors, (iii) use their reasonable best efforts to keep in full force preserve for the benefit of Purchaser the goodwill of banks, suppliers, policy holders, reinsurers, customers, landlords and effect insurance comparable in amount and scope of coverage to that now maintained by each of themothers having business relations with it, and (iv) perform to cooperate with Purchaser and use reasonable efforts to assist Purchaser in all material respects all obtaining the consent of its obligations under all contracts and commitments applicable to its business or properties (subject to each Acquired Entity's right to enter into comparable substitute arrangements, consistent with past practice, on terms generally no less favorable to it than those in effect on any party where the date hereof)consent of such party may be required by reason of the transactions contemplated hereby. Without limiting the generality of the foregoing, prior to the Closing, Seller shall not without approval of Purchaser: (i) change the articles of association, articles of incorporation or bylaws of a Seller Party or merge or consolidate itself or a Seller Party or obligate itself to do so with or into any other entity; (ii) solicit, either directly or indirectly, initiate or encourage any offer for the purchase or acquisition of a Seller Party or any of its material assets by any party other than Purchaser; or enter into negotiations with any party other than Purchaser concerning any such acquisition; (iii) perform, take any action or incur or permit to exist any of the acts, transactions, events or occurrences of the type (1) described in subparagraphs (i) through (xvi) of Section 5(j) of this Agreement which would have been inconsistent with the representations and warranties set forth therein had the same occurred after the Balance Sheet Date and prior to the date hereof or (2) described in Section 5(n) of this Agreement which would be required to be set forth on Schedule 5(n) hereof. (b) Seller shall give Purchaser prompt written notice of any change in any of the information contained in the representations and warranties made in Sections 5 and 7 or elsewhere in this Agreement or the Schedules referred to herein which occurs prior to the Closing. (c) Purchaser shall give Seller prompt written notice of any change in any of the information contained in the representations and warranties made in Section 6 or elsewhere in this Agreement or the Schedules referred to herein which occurs prior to the Closing. Stock Purchase Agreement -20- (d) Beginning on the date of this Agreement, Mx. Xxxxxx X. Allison, III or his designee, shall be entitled to receive notice of and to attend all regular and special meetings of the board of directors and all committees of a Seller Party, including, without limitation, the investment committee, the executive committee, the personnel committee, and any other committee of a Seller Party. (e) The Parties shall use its reasonable their respective best efforts to cause the Acquired Entities consummation of the transactions contemplated hereby in accordance with all the terms and conditions of this Agreement. Without limiting the foregoing, the Parties shall use their respective subsidiaries during best efforts to obtain and make all consents, approvals, assurances or filings of or with third parties and any Governmental Authority necessary or, in the period opinion of the Parties, advisable for the consummation of the transactions contemplated by this Agreement including, without limitation, approvals from the FRB, the FDIC, the TDB, the OCC, or the Texas Insurance Commissioner. Seller, on the one hand, and Purchaser, on the other hand, will promptly comply with all other filing requirements which federal, state, or foreign law may impose on them, respectively, with respect to this Agreement. (f) Seller shall deliver to Purchaser as soon as they become available accurate and complete copies of all reports, forms, and documents filed by a Seller Party with any Governmental Authority subsequent to the date of this Agreement hereof and prior to the Closing Date. Such reports, except as expressly contemplated by this Agreementforms, not to take any and documents will comply in all material respects with all applicable requirements of the following actions without the prior written consent of the Purchaser: (a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its outstanding capital stock (other than cash dividends by a wholly-owned subsidiary of an Acquired Entity to an Acquired Entity), (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock (except to increase the authorized number of shares of Seller Common Stock from 25,000,000 to 50,000,000) or (iii) purchase, redeem or otherwise acquire any outstanding capital stock federal and state banking laws. None of such Acquired Entity or any of its subsidiariesreports, or any rightsforms, warrants or options to acquire any such capital stock; (b) authorize for issuanceand documents, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stock, or any securities convertible, exchangeable or exercisable into, or any rights, warrants or options to acquire, any such capital stock, or other equity equivalents (including without limitation stock appreciation rights); (i) increase any financial statements or accelerate the compensation schedules included therein, will contain any untrue statement of a material fact or fringe benefits of omit to state any of its directors, officers or employees, except for increases in salary or wages of employees of the Acquired Entities or their respective subsidiaries in the ordinary course of business in accordance with past practice, (ii) grant any severance or termination pay not currently material fact required to be paid on stated therein or necessary in order to make the date hereofstatements contained therein, (iii) enter into any employment agreement in light of the circumstances under which they were made, not misleading. The financial statements of each Seller Party included in such reports, forms, and documents will present fairly, in conformity with any present or former director or officer or senior employeeGAAP, or, other than where regulatory accounting principles supersede GAAP, in conformity with such regulatory accounting principles, applied on a consistent basis the ordinary course financial position of business consistent with past practice each Seller Party as of the dates thereof and terminable without severance or other termination payment on 30 days' notice or less, any other employee their results of any Acquired Entity or any of its subsidiaries, or (iv) establish, adopt, enter into or amend or terminate any plan, agreement, trust, fund, policy or arrangement operations for the benefit of any current or former directors, officers or employees of any Acquired Entity or its subsidiaries; (d) amend its Charter (except to increase the authorized number of shares of Seller Common Stock from 25,000,000 to 50,000,000), Bylaws or other comparable charter or organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the entity structure or ownership of any of the Acquired Entities or their respective subsidiaries; (e) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, assets or properties of (including through the exercise of any right of first refusal or the exercise of any option to purchase or convert), or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (ii) any material assets or properties, except in the ordinary course of business consistent with past practice; (f) sell or otherwise dispose of any of its properties or assets, except in the ordinary course of business for cash consideration equal to fair market value at the time of such sale or other disposition as determined by the board of directors of such Acquired Entity in good faith; (g) lease, license, mortgage or otherwise encumber any of its properties or assets, except in the ordinary course of business consistent with past practice; (h) amend, supplement or modify any material contract, except in the ordinary course of business, or relinquish, forgive or cancel any material debt or claim or waive any rights of material value; (i) make any capital expenditure or commitment to make any such expenditure or defer making any budgeted capital expenditure, except in the ordinary course of business consistent with past practice; (j) incur, prepay, or commit to incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person (other than guarantees by an Acquired Entity in favor of the Purchaser or Affiliates of the Purchaser, CMA, or any of its wholly-owned subsidiaries or by any of its subsidiaries in favor of the Purchaser, Affiliates of the Purchaser, or an Acquired Entity) in excess of $100,000 in the aggregate, except in the ordinary course of business consistent with past practice; (k) issue or sell any debt securities or warrants or other rights to acquire any debt securities of an Acquired Entity or any of their respective subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except in the ordinary course of business consistent with past practice; (l) change any accounting principle, method or practice used by it or any change in the classification of assets, recognition of income or expenses or the depreciation or amortization policies or rates theretofore applied, unless required by the SEC or the FASB; (m) make any material Tax election or settle or compromise any income Tax liability in excess of $150,000 in the aggregate or defer the payment of any material Taxes that come due; (n) authorize any of, or commit or agree to take any of, the foregoing actions. To the extent any of the Acquired Entities or any of their respective subsidiaries has done anything in contravention of the acts required or proscribed, as applicable, in this Section 5.1 without the prior written consent of the Purchaser, the Seller will promptly inform the Purchaser, by telephone (with confirmation of details in writing) of such action in contraventionperiods then ended.

CONDUCT OF BUSINESS PRIOR TO CLOSING; OTHER COVENANTS. Section 5.1 Conduct of Business of the Company Pending the Closing. Except as contemplated by this Agreement, the Seller shall cause the Acquired Entities and their respective subsidiaries to, during the period from the date of this Agreement to the Closing Date, (i) act and carry on their respective businesses in the ordinary course of business and, to the extent consistent therewith, use reasonable efforts, to preserve intact their current business organizations, keep available the services of their current key officers and employees and preserve the goodwill of those engaged in material business relationships with them, (ii) maintain and keep their properties and equipment in good repair, working order and condition, consistent with current condition, except for ordinary wear and tear, (iii) use their reasonable best efforts to keep in full force and effect insurance comparable in amount and scope of coverage to that now maintained by each of them, and (iv) perform in all material respects all of its obligations under all contracts and commitments applicable to its business or properties (subject to each Acquired Entity's right to enter into comparable substitute arrangements, consistent with past practice, on terms generally no less favorable to it than those in effect on the date hereof). Without limiting the generality of the foregoing, the Seller shall use its reasonable best efforts to cause the Acquired Entities and their respective subsidiaries during the period from the date of this Agreement to the Closing Date, except as expressly contemplated by this Agreement, not to take any of the following actions without the prior written consent of the Purchaser: (a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its outstanding capital stock (other than cash dividends by a wholly-owned subsidiary of an Acquired Entity to an Acquired Entity), (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock (except to increase the authorized number of shares of Seller Common Stock from 25,000,000 to 50,000,000) or (iii) purchase, redeem or otherwise acquire any outstanding capital stock of such Acquired Entity or any of its subsidiaries, or any rights, warrants or options to acquire any such capital stock; (b) authorize for issuance, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stock, or any securities convertible, exchangeable or exercisable into, or any rights, warrants or options to acquire, any such capital stock, or other equity equivalents (including without limitation stock appreciation rights); (i) increase or accelerate the compensation or fringe benefits of any of its directors, officers or employees, except for increases in salary or wages of employees of the Acquired Entities or their respective subsidiaries in the ordinary course of business in accordance with past practice, (ii) grant any severance or termination pay not currently required to be paid on the date hereof, (iii) enter into any employment agreement with any present or former director or officer or senior employee, or, other than in the ordinary course of business consistent with past practice and terminable without severance or other termination payment on 30 days' notice or less, any other employee of any Acquired Entity or any of its subsidiaries, or (iv) establish, adopt, enter into or amend or terminate any plan, agreement, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees of any Acquired Entity or its subsidiaries; (d) amend its Charter (except to increase the authorized number of shares of Seller Common Stock from 25,000,000 to 50,000,000)Charter, Bylaws or other comparable charter or organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the entity structure or ownership of any of the Acquired Entities or their respective subsidiaries; (e) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, assets or properties of (including through the exercise of any right of first refusal or the exercise of any option to purchase or convert), or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (ii) any material assets or properties, except in the ordinary course of business consistent with past practice; (f) sell or otherwise dispose of any of its properties or assets, except in the ordinary course of business for cash consideration equal to fair market value at the time of such sale or other disposition as determined by the board of directors of such Acquired Entity in good faith; (g) lease, license, mortgage or otherwise encumber any of its properties or assets, except in the ordinary course of business consistent with past practice; (h) amend, supplement or modify any material contract, except in the ordinary course of business, or relinquish, forgive or cancel any material debt or claim or waive any rights of material value; (i) make any capital expenditure or commitment to make any such expenditure or defer making any budgeted capital expenditure, except in the ordinary course of business consistent with past practice; (j) incur, prepay, or commit to incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person (other than guarantees by an Acquired Entity in favor of the Purchaser or Affiliates of the Purchaser, CMA, or any of its wholly-owned subsidiaries or by any of its subsidiaries in favor of the Purchaser, Affiliates of the Purchaser, or an Acquired Entity) in excess of $100,000 in the aggregate, except in the ordinary course of business consistent with past practice; (k) issue or sell any debt securities or warrants or other rights to acquire any debt securities of an Acquired Entity or any of their respective subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except in the ordinary course of business consistent with past practice; (l) change any accounting principle, method or practice used by it or any change in the classification of assets, recognition of income or expenses or the depreciation or amortization policies or rates theretofore applied, unless required by the SEC or the FASB; (m) make any material Tax election or settle or compromise any income Tax liability in excess of $150,000 in the aggregate or defer the payment of any material Taxes that come due; (n) authorize any of, or commit or agree to take any of, the foregoing actions. To the extent any of the Acquired Entities or any of their respective subsidiaries has done anything in contravention of the acts required or proscribed, as applicable, in this Section 5.1 without the prior written consent of the Purchaser, the Seller will promptly inform the Purchaser, by telephone (with confirmation of details in writing) of such action in contravention.