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

Conduct of Business Prior to the Closing Date. Except as --------------------------------------------- described on Schedule 4.1 or as expressly permitted by this Agreement, the Company agrees, from the date hereof, that prior to the Closing Date, except as otherwise consented to or approved in writing by Buyers: (a) the business of the Company shall be conducted only in the ordinary course and consistent with past practice and the Company shall not take any action inconsistent therewith or with the transactions contemplated hereby; (b) the Company shall not (i) amend its Articles of Incorporation or Bylaws, (ii) change the number of issued or outstanding shares of its capital stock, or issue any debt or equity securities, or any options, warrants or other rights to acquire or subscribe for such securities, (iii) declare, set aside or pay any dividend or other distribution or payment in cash, stock or property in respect of shares of its capital stock other than with respect to the 8% Preferred Stock, (iv) make any direct or indirect redemption, retirement, purchase or other acquisition of any of its capital stock or (v) split, combine or reclassify its outstanding shares of capital stock; (c) the Company shall not, directly or indirectly, (i) other than in the ordinary course of business and consistent with past practice, incur any indebtedness for borrowed money, except indebtedness for borrowed money incurred under credit facilities existing as of October 1, 1995 or which otherwise does not exceed $100,000 in principal amount, (ii) waive, release, grant or transfer any rights of material value, except in the ordinary course of business, (iii) transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any asset of the Company with a value exceeding $50,000 individually, and $100,000 in the aggregate, other than the sale of surplus properties and other than inventory disposed of in the ordinary course of business and consistent with past practice, (iv) purchase or acquire any material interest in any business or any securities or assets of a business, (v) enter into any joint venture or partnership, (vi) settle any material litigation, or (vii) accelerate payments on any indebtedness except as required in the Credit Agreement; (d) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the services of its operating personnel and to preserve the goodwill of those having business relationships with it, including, without limitation, suppliers; (e) the Company will not, directly or indirectly, (i) except with respect to non-executive officer employees in the ordinary course of business and consistent with past practice, increase the compensation payable or to become payable by it to any of its employees, officers or directors (except in accordance with employment agreements and welfare and benefit plans set forth on Schedule 3.11); provided that with respect to non-executive officer employees, in no case may compensation be increased by more than 6 1/2%, (ii) adopt additional, or make any payment or provision, or otherwise amend, other than as required by existing plans or agreements in the ordinary course of business and consistent with prior practice, to any stock option, bonus, profit sharing, pension, group insurance, severance pay, deferred compensation or other payment or employee compensation plan for the benefit of employees of the Company, (iii) grant any stock options or stock appreciation rights except as contemplated by Section 4.6 of this Agreement, (iv) enter into any new, or alter or amend any employment, severance, consulting or other compensation agreement with any director, officer or affiliate of the Company (except to the extent permitted in (i) above), (v) except as set forth on Schedule 4.1 make any loan or advance to, or enter into any written contract, lease or commitment with, any officer, employee or director of the Company, or (vi) enter into any transactions with any affiliate of the Company other than as contemplated by this Agreement; (f) the Company shall not, directly or indirectly, assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation, or make any loans or advances to any other individual, firm or corporation other than with respect to arrangements with franchisees operating less than five locations; (g) capital expenditures (or commitments to make such expenditures which are not terminable at the option of the Company) shall be incurred only in accordance with the Company's 1996 business plan, a copy of which has been provided to the Buyers, and the Company shall not make any other investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfers or otherwise or by the purchase of any property or assets of any other individual, firm or corporation; (h) the Company shall not enter into, modify or amend in any material respect or take any action to terminate their respective material contracts (including those Contracts listed on Schedule 3.12 and any lease to which the Company is a party), except in the ordinary course of business and except with respect to contracts under which a third party has defaulted; (i) the Company shall not alter any practice, with respect to accounting policies or procedures or make any reclassification of assets or liabilities, except for changes required by changes in GAAP; (j) other than in the ordinary course of business, the Company shall not close any store, office, plant, facility or warehouse, except as required by applicable law or in the event of casualty or, as a result of the expiration of any lease which, after reasonable efforts by the Company, is not renewed; (k) other than in the ordinary course of business, enter into, with respect to its stores, offices, plants, facilities and warehouses, any new lease, lease termination agreement or amendment of any agreement to lease real property (including, without limitation, any amendments to any such agreement with respect to rent or additional rent, term assignment, subletting, "keep- open" clauses, non-competition clauses and required trade name clauses); (l) other than in the ordinary course of business, sell, assign or sublease any store, office, plant, facility or warehouse except for the lease or sale of surplus properties; (m) the Company will promptly advise Buyers in writing of any Material Adverse Effect or any breach of the Company's representations or warranties, or any breach of a covenant contained herein of which the Company has knowledge; and (n) the Company shall not enter into an agreement to do any of the things described in clauses (a) through (l) other than as contemplated by this Agreement.

Conduct of Business Prior to the Closing Date. Except as Each Company and --------------------------------------------- described Subsidiary, on Schedule 4.1 or as expressly permitted by this Agreementthe one hand, and Buyer and Buyer's Subsidiary, on the Company agreesother hand, agrees with the other that, from the date hereof, that and prior to the Closing Date, except as otherwise consented to or approved in writing by Buyersthe other or expressly permitted by this Agreement: (a) the its business of the Company shall be conducted only in the ordinary course and consistent with past practice and the Company it shall not take any action inconsistent therewith or with the transactions contemplated hereby; (b) the Company it shall not (i) amend its Articles of Incorporation Association or Articles or Certificates of Incorporation, as the case may be, Memorandum or Bylaws, as the case may be, or other charter documents, (ii) change the number of issued or outstanding shares of its capital stock, or issue any debt or equity securities, or any options, warrants or other rights to acquire or subscribe for such securitiessecurities (except, in the case of the Buyer, for the grant of stock options, not exceeding options covering 400,000 shares of Buyer's Common Stock, plus the amount of options contemplated by Section 6.14(b), under its Stock Option Plan, and the issuance of shares of Buyer's Common Stock pursuant to the exercise of outstanding stock options and warrants and the issuance of subordinate convertible debentures as contemplated by Section 7.3(g) hereof), (iii) declare, set aside or pay any dividend or other distribution or payment in cash, stock or property in respect of shares of its capital stock other than (except, in the case of the Companies, as contemplated by and in accordance with respect to the 8% Preferred StockSection 9.8 hereof), (iv) make any direct or indirect redemption, retirement, purchase or other acquisition of any of its capital stock stock, or (v) split, combine or reclassify its outstanding shares of capital stock; (c) the Company it shall not, directly or indirectly, (i) other than in the ordinary course of business and consistent with past practice, and except in the case of Buyer for the subordinated debt financing referred to in Section 7.3(g), incur any indebtedness for borrowed money, except indebtedness for borrowed money incurred under credit facilities existing as of October 1the date hereof (or replacements thereof), 1995 inter-group borrowings or which otherwise does not exceed $100,000 exceed, at the date of each incurrence, the equivalent of US$250,000 in principal amount, (ii) waive, release, grant or transfer any rights of material value, except in the ordinary course of business, (iii) sell, transfer, lease, license, sell, mortgage, pledge, dispose of, of or encumber any asset of the Company its assets with a value exceeding $50,000 individuallyexceeding, and $100,000 as of the date of such event, the equivalent of US$250,000 in the aggregate, other than the sale of surplus properties and other than inventory disposed of sold in the ordinary course of business and consistent with past practicepractice or any pledge or other encumbrance pursuant to credit facilities in existence on the date hereof (or replacements of facilities in existence on the date hereof), (iv) purchase or acquire any material interest in any business or any securities or assets of a business, (v) enter into any joint venture or partnership, (vi) settle any material litigation, litigation or waive or relinquish any material right or benefit or (vii) accelerate payments on any indebtedness except as required in the Credit Agreementindebtedness; (d) the Company shall it will use its reasonable best efforts to preserve intact the its business organization of the Companyorganization, to keep available the services of its operating personnel and to preserve the goodwill of those having business relationships with it, including, without limitation, suppliersprovided that the loss of any personnel as a result of the announcement of the transactions contemplated by this Agreement shall not be deemed to be a breach of this Section 6.1(d); (e) the Company it will not, directly or indirectly, (i) except with respect to non-executive officer employees in the ordinary course of business and consistent with past practice, increase the compensation payable or to become payable by it to any of its employees, officers or directors (directors, except in accordance the ordinary course of business consistent with employment agreements and welfare and benefit plans set forth on Schedule 3.11); provided that with respect to non-executive officer employees, in no case may compensation be increased by more than 6 1/2%prior practice, (ii) adopt additional, or make any payment or provisionprovision to, or otherwise amend, other than as required by existing plans the Company's Scheme or agreements as permitted by the Buyer's Stock Option Plan, in each case in the ordinary course of business and consistent with prior practice, to any stock option, bonus, profit sharing, pension, group insurance, severance pay, deferred compensation or other payment or employee compensation plan for the benefit of employees of the Companyits employees, (iii) grant any stock options or stock appreciation rights rights, except as contemplated permitted by Section 4.6 of this Agreementparagraph (b) above, (iv) enter into any new, or alter or amend any any, employment, severance, consulting or other compensation agreement with any director, officer officer, Employee or affiliate Associate of it, except in the Company (except to the extent permitted in (i) above)ordinary course of business consistent with prior practice, (v) except as set forth on Schedule 4.1 make any loan or advance to, or enter into any written contract, lease or commitment with, any officer, employee Employee or director of it except in the Companycase of travel, entertainment or other similar advances in the ordinary course of business consistent with prior practice, or (vi) enter into any other material transactions with any affiliate Associate of the Company other than as contemplated by this Agreementit or any of its shareholders, directors or executive officers; (f) the Company shall it will not, directly or indirectly, assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation, or make any loans or advances to any other individual, firm or corporation other than except in the ordinary course of business and consistent with respect to arrangements with franchisees operating less than five locationspast practices; (g) it will not incur capital expenditures (or commitments to make such expenditures which are not terminable at its option) which in the option aggregate would exceed 110% of the Company) amount forecasted therefor as of the date hereof with respect to any calendar month including or following the date hereof, nor shall be incurred only in accordance with the Company's 1996 business plan, a copy of which has been provided to the Buyers, and the Company shall not it make any other investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfers or otherwise or by the purchase of any property or assets of any other individual, firm or corporation; (h) the Company shall not enter into, modify or amend in any material respect or take any action to terminate their respective material contracts (including those Contracts listed on Schedule 3.12 and any lease to which the Company is a party), except in the ordinary course of business and except with respect to contracts under which a third party has defaulted; (i) the Company shall it will not alter any practice, practice with respect to accounting policies or procedures or make any reclassification of assets or liabilities, except except, with respect to the Companies, for changes required by changes in SSAP or in the Companies Xxx 0000 or changes required to conform their financial statements to U.S. GAAP; (ji) other than in the ordinary course of business, the Company shall it will not close any store, office, plant, facility or warehouse, except as required by applicable law or in the event of casualty or, as a result of the expiration of any lease which, after reasonable efforts by the Company, is not renewedmaterial casualty; (kj) other than in the ordinary course of business, it will not enter into, with respect to its storesany office, officesplant, plants, facilities facility and warehouseswarehouse, any new lease, lease termination agreement or amendment of any agreement to lease real property (includingproperty, including without limitation, any amendments to any such agreement with respect to rent or additional rent, term assignment, subletting, "keep- keep-open" clauses, non-competition clauses and required trade name clauses)clause, except, in the case of the Companies and the Subsidiaries, for lease modifications reflecting the resolution of currently pending rent reviews which would not in the aggregate reasonably be expected to result in rent increases exceeding (Pounds)150,000 annually; (lk) other than in the ordinary course of business, it will not sell, assign or sublease any store, office, plant, facility or warehouse except for the lease or sale of surplus propertieswarehouse; (ml) the Company it will promptly advise Buyers in writing of any Material Adverse Effect or any breach of the Company's representations or warranties, or any breach of a covenant contained herein of which the Company has knowledge; and (n) the Company shall not enter into an agreement to do any of the things described in clauses (a) through (lk) immediately above; and (m) it will promptly advise the other than in writing of any event or occurrence that could be reasonably expected to have a Company Material Adverse Effect (in the case of notices by the Company) or a Buyer Material Adverse Effect (in the case of notices by the Buyer) or of any breach of any of its representations or warranties contained in Article IV or Article V, as contemplated applicable, or any breach by this Agreementit of a covenant contained herein.

Conduct of Business Prior to the Closing Date. Except as --------------------------------------------- described on Schedule 4.1 or as expressly permitted by this Agreement, the (a) The Company agreesagrees that, from and after the date hereof, that hereof and prior to the Closing Date or the date, if any, on which this Agreement is earlier terminated pursuant to Section 8.1 (the “Termination Date”), and except as may be otherwise consented to or approved agreed in writing by BuyersPurchaser, as may be expressly permitted pursuant to this Agreement: (ai) the business of the Company and each of its Subsidiaries shall be conducted only in the usual, regular and ordinary course and consistent with past practice substantially in the same manner as heretofore conducted, and each of the Company and its Subsidiaries shall not take any action inconsistent therewith or use its reasonable best efforts to preserve its business organization intact, keep available the services of its current officers and employees and maintain its existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with it, to the transactions contemplated herebyend that the goodwill and ongoing business of each of them shall be unimpaired at the Closing Date; (bii) neither the Company shall not nor any Subsidiary of the Company shall: (iA) amend its Articles articles of Incorporation organization or Bylawssimilar organizational documents, (iiB) change the number issue, sell, transfer, pledge, dispose of issued or outstanding encumber any shares of any class or series of its capital stock or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock, other than shares of FTI Common Stock reserved for issuance on the date hereof pursuant to the exercise of FTI Options or issue any debt or equity securities, or any options, warrants or other rights to acquire or subscribe for such securitiesFTI Warrants outstanding on the date hereof, (iiiC) declare, set aside or pay any dividend or other distribution or payment payable in cash, stock or property in with respect to any shares of shares any class or series of its capital stock (other than with respect a cash dividend paid by a Subsidiary of the Company to the 8% Preferred StockCompany or another wholly-owned subsidiary of the Company), (iv) make any direct or indirect redemption, retirement, purchase or other acquisition of any of its capital stock or (vD) split, combine or reclassify its outstanding any shares of any class or series of its stock; or (E) redeem, purchase or otherwise acquire directly or indirectly any shares of any class or series of its capital stock, or any instrument or security which consists of or includes a right to acquire such shares. (iii) neither the Company nor any Subsidiary of the Company shall modify, amend or terminate any material Company Agreement or waive, release or assign any material rights or claims; (civ) neither the Company shall notnor any Subsidiary of the Company shall: (A) incur or assume any long-term or short-term indebtedness; (B) assume, directly guarantee, endorse or indirectlyotherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person; (iC) make any loans, advances or capital contributions to, or investments in, any other Person (other than to, from, or in wholly owned Subsidiaries of the ordinary course Company); (D) enter into any material commitment or transaction (including, but not limited to, any capital expenditure or purchase, sale or lease of business and consistent with past practice, incur any indebtedness for borrowed money, except indebtedness for borrowed money incurred under credit facilities existing as of October 1, 1995 assets or which otherwise does not exceed $100,000 in principal amount, (ii) waive, release, grant or transfer any rights of material valuereal estate), except in the ordinary course of business, ; or (iiiE) incur or modify the terms of any indebtedness or other liability (other than trade payables); (v) neither the Company nor any Subsidiary of the Company shall transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any asset of the Company with a value exceeding $50,000 individually, and $100,000 in the aggregate, assets other than the sale of surplus properties and other than inventory disposed of in the ordinary and usual course of business and consistent with past practice, (iv) purchase or acquire any material interest in any business or any securities or assets of a business, (v) enter into any joint venture or partnership, ; (vi) settle any material litigation, or (vii) accelerate payments on any indebtedness except as required otherwise specifically provided in the Credit this Agreement; (d) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the services of its operating personnel and to preserve the goodwill of those having business relationships with it, including, without limitation, suppliers; (e) the Company will not, directly or indirectly, (iA) except with respect to non-executive officer employees make any change in the ordinary course of business and consistent with past practice, increase the compensation payable or to become payable by it (1) to (x) any of its employees, officers or directors (except in accordance with employment agreements and welfare and benefit plans set forth on Schedule 3.11); provided that with respect to non-executive officer employees, in no case may compensation be increased by more than 6 1/2%, (ii) adopt additional, or make any payment or provision, or otherwise amend, other than as required by existing plans or agreements in the ordinary course of business and consistent with prior practice, to any stock option, bonus, profit sharing, pension, group insurance, severance pay, deferred compensation or other payment or employee compensation plan for the benefit of employees of the Company, (iii) grant any stock options or stock appreciation rights except as contemplated by Section 4.6 of this Agreement, (iv) enter into any new, or alter or amend any employment, severance, consulting or other compensation agreement with any director, officer or affiliate of the Company (except to the extent permitted in (i) above), (v) except as set forth on Schedule 4.1 make any loan or advance to, or enter into any written contract, lease or commitment with, any officer, employee or director of the Companydirectors, or (viy) enter into any transactions with any affiliate employees, agents or consultants or to Persons providing management services, in each case earning in excess of the Company other than as contemplated by this Agreement; (f) the Company shall not, directly or indirectly, assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation, or make any loans or advances to any other individual, firm or corporation other than with respect to arrangements with franchisees operating less than five locations; (g) capital expenditures (or commitments to make such expenditures which are not terminable at the option of the Company) shall be incurred only in accordance with the Company's 1996 business plan, a copy of which has been provided to the Buyers, and the Company shall not make any other investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfers or otherwise or by the purchase of any property or assets of any other individual, firm or corporation; (h) the Company shall not enter into, modify or amend in any material respect or take any action to terminate their respective material contracts (including those Contracts listed on Schedule 3.12 and any lease to which the Company is a party)$50,000 per annum, except in the ordinary course of business and except with respect to contracts under which a third party has defaulted; (i) the Company shall not alter any practice, with respect to accounting policies or procedures or make any reclassification of assets or liabilities, except for changes as expressly required by changes any agreement now in GAAP; effect; or (j2) other than in the ordinary course of business, the Company shall not close to any storesuch employees, officeagents or consultants or to Persons providing management services, plantin each case earning $50,000 or less per annum; or (B) enter into or amend any employment, facility severance, consulting, termination or warehouseother agreement or employee benefit plan or make any loans to any of its officers, except as required by applicable law directors, employees, Affiliates, agents or consultants or make any change in the event of casualty or, as a result of the expiration its existing borrowing or lending arrangements or programs for or on behalf of any lease which, after reasonable efforts by the Company, is not renewedof such Persons pursuant to an employee benefit plan or otherwise; (kvii) except as otherwise specifically contemplated by this Agreement, pay or make any accrual or arrangement for payment of any pension, retirement allowance or other than employee benefit pursuant to any existing plan, agreement or arrangement to any officer, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of the Company of any amount relating to unused vacation days, except payments and accruals made in the ordinary course of businessbusiness consistent with past practice, enter intoadopt or pay, with respect grant, issue, accelerate or accrue salary or other payments or benefits pursuant to its storesany pension, officesprofit-sharing, plantsbonus, facilities and warehousesextra compensation, any new leaseincentive, lease termination deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or amendment arrangement, or any employment or consulting agreement with or for the benefit of any agreement to lease real property (includingdirector, without limitationofficer, any amendments to any such agreement with respect to rent employee, agent or additional rentconsultant, term assignment, subletting, "keep- open" clauses, non-competition clauses and required trade name clauses); (l) whether past or present other than in accordance with employee benefit plans, agreements, or arrangements as in effect on the date hereof, except payments made in the ordinary course of businessbusiness consistent with past practice, sellor amend in any respect any such existing plan, assign agreement or sublease any store, office, plant, facility or warehouse except for arrangement in a manner inconsistent with the lease or sale of surplus propertiesforegoing; (mviii) neither the Company will promptly advise Buyers in writing nor any Subsidiary of any Material Adverse Effect or any breach of the Company's representations or warranties, or any breach of a covenant contained herein of which the Company has knowledge; and (n) the Company shall not enter into an agreement to do permit any of the things described in clauses (a) through (l) other than as contemplated its properties or assets to fail to be covered by this Agreement.insurance policies reflecting coverage that is consistent with their past practice;

Conduct of Business Prior to the Closing Date. Except Each Company shall, and the Sellers shall cause each Company to, conduct its operations in the ordinary course of business, consistent with past practice and continue to make capital expenditures consistent with such Company’s budget. Without limiting the generality of the foregoing, and except as --------------------------------------------- described on Schedule 4.1 or as otherwise expressly permitted contemplated by this Agreement, the Company agreesRestructuring Events or as set forth in Schedule 6.4, from the date hereof, that prior to the Closing Date, except as otherwise consented to or approved each Company and the Sellers (in writing by Buyersthe case of Sections 6.4.1 through 6.4.4 and 6.4.19 only) shall not, and the Sellers shall not permit any Company to, without the prior written consent of Buyer: 6.4.1 (ai) the business of the Company shall be conducted only in the ordinary course and consistent with past practice and the Company shall not take any action inconsistent therewith or with the transactions contemplated hereby; (b) the Company shall not (i) amend its Articles omit to take any action that could reasonably be expected to result in a breach of Incorporation any agreement, commitment or Bylawscovenant of any Seller contained in this Agreement, or (ii) change cause the number representations and warranties in Article III Representations and Warranties of issued Sellers or outstanding shares Article IV Representations and Warranties of its capital stock, or issue any debt or equity securities, or any options, warrants or other rights Sellers as to acquire or subscribe for such securities, the Companies to become untrue; 6.4.2 (iiii) declare, set aside aside, or pay any dividend or other distribution or payment in cash, stock or property in respect of shares of an equity interest in any Company, or any other payment to any Company’s member in its capital stock other than with respect to the 8% Preferred Stockcapacity as such, (iv) make or any direct or indirect redemption, retirement, purchase or other acquisition of any of its capital stock or equity interest in any Company unless paid at least five days prior to the Closing Date, (vii) split, combine or reclassify its outstanding any equity interest in any Company or issue or authorize any issuance of any other securities in respect of, in lieu of or in substitution for any equity interest in any Company, or (iii) purchase, redeem or otherwise acquire any shares of capital stockstock of any Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (c) 6.4.3 issue, deliver, sell, pledge, dispose of or otherwise incur any Lien on any Membership Interests or other equity interests or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire any such equity interests, equity equivalent or convertible securities; 6.4.4 amend any Company’s Charter Documents; 6.4.5 acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the Company shall notassets of or equity in, directly or indirectlyby any other manner, (i) any business or any corporation, limited liability company, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets other than in the ordinary course of business and consistent with past practice; 6.4.6 sell, lease or otherwise dispose of, or agree to sell, lease or otherwise dispose of, or incur any indebtedness for borrowed moneyLien (other than a Permitted Lien) on, except indebtedness for borrowed money incurred under credit facilities existing as any of October 1its material assets, 1995 or which otherwise does not exceed $100,000 in principal amount, (ii) waive, release, grant or transfer any rights of material value, except other than in the ordinary course of businessbusiness consistent with past practice; 6.4.7 incur any new indebtedness of any Company for borrowed money (including capital leases), (iii) transferguarantee any such indebtedness or make any loans, lease, license, sell, mortgage, pledge, dispose ofadvances or capital contributions to, or encumber other investments in, any asset other Person; 6.4.8 adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any Company, or otherwise alter any Company’s corporate structure; 6.4.9 amend, waive, modify or consent to the Company with a value exceeding $50,000 individually, and $100,000 termination of any Material Contract; 6.4.10 make any material change in the aggregatetime or manner in which any Company extends discounts or credit to Significant Customers, collects receivables from Significant Customers or otherwise deals with Significant Customers, in each case other than the sale of surplus properties and other than inventory disposed of in the ordinary course of business and consistent with past practice; 6.4.11 make or authorize any new capital expenditure or expenditures; 6.4.12 hire additional employees, (iv) purchase officers, consultants or acquire any material interest other independent contractors receiving salary or guaranteed compensation in any business or any securities or assets excess of a business, (v) enter into any joint venture or partnership, (vi) settle any material litigation$100,000 per year, or (vii) accelerate payments on any indebtedness except as required in the Credit Agreement; (d) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the services of its operating personnel and to preserve the goodwill of those having business relationships with it, including, without limitation, suppliers; (e) the Company will not, directly or indirectly, (i) except with respect to non-executive officer employees in the ordinary course of business and consistent with past practice, increase the compensation payable or to become payable by it or the benefits provided to any of its employeesdirectors, managers, officers or directors (except in accordance with employment agreements and welfare and benefit plans set forth on Schedule 3.11); provided that with respect to non-executive officer employees, in no case may compensation be increased by more than 6 1/2%, (ii) adopt additional, or make any payment or provision, or otherwise amend, other than as required by existing plans or agreements in the ordinary course of business except for normal merit and cost-of-living increases consistent with prior practice, to any stock option, bonus, profit sharing, pension, group insurance, severance pay, deferred compensation past practice in salaries or other payment or employee compensation plan for the benefit wages of employees of any Company who are not directors or officers of any Company and who receive less than $100,000 in total annual cash compensation from any Company not to exceed $250,000 in the Companyaggregate, (iii) or grant any stock options severance or stock appreciation rights except as contemplated by Section 4.6 of this Agreement, (iv) enter into any newtermination payment to, or alter pay, loan or amend advance any employmentamount to, severance, consulting or other compensation agreement with any director, officer or affiliate employee of the Company (except to the extent permitted in (i) above), (v) except as set forth on Schedule 4.1 make any loan or advance to, or enter into any written contract, lease or commitment with, any officer, employee or director of the Company, or (vi) establish, adopt, enter into or amend any transactions with any affiliate of the Company other than as contemplated by this AgreementPlan; (f) 6.4.13 permit the Company shall not, directly or indirectly, assume, guarantee, endorse or otherwise become responsible for the obligations lapse of any other individual, firm or corporation, or make any loans or advances to any other individual, firm or corporation other than with respect to arrangements with franchisees operating less than five locations; (g) capital expenditures (or commitments to make such expenditures which are not terminable at the option existing policy of the Company) shall be incurred only in accordance with the Company's 1996 business plan, a copy of which has been provided insurance relating to the Buyers, and the Company shall not make any other investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfers or otherwise or by the purchase of any property business or assets of any other individual, firm or corporationCompany; (h) 6.4.14 permit the Company shall not enter into, modify lapse of any right relating to Listed Intellectual Property or amend any other intangible asset used in the business of any Company; 6.4.15 make any change in any material respect method of accounting or take any action to terminate their respective material contracts (including those Contracts listed on Schedule 3.12 and any lease to which the Company is a party)accounting practice or policy, except in the ordinary course of business and except with respect to contracts under which a third party has defaulted; (i) the Company shall not alter any practice, with respect to accounting policies or procedures or make any reclassification of assets or liabilities, except for changes as required by changes in GAAP; (j) 6.4.16 sell or license to any third party any of its Intellectual Property other than non-exclusive licenses in the ordinary course of business, the Company shall not close any store, office, plant, facility or warehouse, ; 6.4.17 except as required by applicable law permitted pursuant to Section 6.4.12, enter into any Contract, agreement, commitment or in the event of casualty or, as a result of the expiration of arrangement with any lease which, after reasonable efforts by the Company, is not renewedRelated Party; (k) 6.4.18 make any Tax election, settle or compromise any United States federal, state, local or non-United States income tax liability or file any return other than in the ordinary course of business, enter into, on a basis consistent with respect to its stores, offices, plants, facilities and warehouses, any new lease, lease termination agreement or amendment of any agreement to lease real property (including, without limitation, any amendments to any such agreement with respect to rent or additional rent, term assignment, subletting, "keep- open" clauses, non-competition clauses and required trade name clauses); (l) other than in the ordinary course of business, sell, assign or sublease any store, office, plant, facility or warehouse except for the lease or sale of surplus properties; (m) the Company will promptly advise Buyers in writing of any Material Adverse Effect or any breach of the Company's representations or warranties, or any breach of a covenant contained herein of which the Company has knowledgepast practice; and (n) the Company shall not enter into 6.4.19 authorize, recommend, propose or announce an agreement intention to do any of the things described in clauses (a) through (l) other than as contemplated by this Agreementforegoing, or enter into any Contract, agreement, commitment or arrangement to do any of the foregoing.