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

Conduct of the Business of the Company Prior to Closing. Except with the consent in writing of Purchaser or as provided otherwise in this Agreement, the Company covenants that, between the date of this Agreement and the Closing Date, the Company and the Retained Subsidiaries will conduct their business in the ordinary course, which shall include: (a) using commercially reasonable efforts to preserve the business intact and to preserve the goodwill of customers and others having material business relations with the Company and the Retained Subsidiaries; (b) using commercially reasonable efforts to (i) maintain the Assets in all material respects in the same working order and condition as such Assets are in as of the date of this Agreement, reasonable wear and tear, casualty and other events beyond the Company's and the Retained Subsidiaries control, excepted and subject to the sale of any of such Assets in the ordinary course of business, and (ii) not liquidate the Assets to cash except in the ordinary course of business; (c) using commercially reasonably efforts to retain its employees, subject to the termination of employees in the ordinary course of business or for cause; (d) keeping in force at no less than their present limits, if available at commercially reasonable cost, all existing bonds and policies of insurance insuring the Assets or the business of the Company and the Retained Subsidiaries; (e) not unreasonably delay the acceptance of any new equipment or machinery presently on order; (f) not unreasonably delay commencing or completing any material capital expenditure or capital improvement project heretofore approved by the Company or the Retained Subsidiaries; (g) not enter into any material contract, commitment, arrangement or transaction of the type described in SECTION 3.12 hereof, except for contracts for the sale of goods or services or the purchase of inventory and supplies, personal property leases and nondisclosure agreements, in each case in the ordinary course of business; and (h) using commercially reasonable efforts to cause the Company and the Retained Subsidiaries not to suffer, permit or incur any of the transactions or events described in SECTION 3.26 hereof to the extent such events or transactions are within the control of the Company and the Retained Subsidiaries.

Conduct of the Business of the Company Prior to Closing. Except During the period from the date of this Agreement to the Effective Time, the Company shall and shall cause its Subsidiaries to: (x) conduct their respective operations only according to the ordinary and usual course of business, accurately maintain their books and records in the manner required by applicable law, maintain their accounting and other financial records in accordance with applicable accounting requirements, published rules and regulations of the consent SEC with respect thereto and GAAP, and use reasonable efforts to preserve intact their business organizations, keep available the services of their officers and employees (without having any obligation to provide retention packages) and maintain existing relationships with licensors, suppliers, distributors, customers, landlords, employees, agents and others having business relationships with them; (y) confer with FACO concerning operational matters of a material nature (including the cancellation or waiver of any claim or right in excess of $50,000) and (z) report periodically to FACO concerning the business, operations and finances of the Company and its Subsidiaries. Notwithstanding the immediately preceding sentence, prior to the Effective Time, except as may be first approved in writing of Purchaser by FACO or as provided is otherwise in permitted or required by this Agreement, the Company covenants thatshall and the Company shall cause each of its Subsidiaries to: (a) other than a Permitted Reverse Stock Split, between refrain from amending or modifying their respective articles or certificates of incorporation and bylaws from their respective forms on the date of this Agreement, (b) refrain from paying any bonuses other than bonuses in the Ordinary Course (except only to the extent that the Company or a Subsidiary thereof has expressly agreed and is bound as of the date of this Agreement to pay such bonuses) and increasing any salaries or other compensation to any director, officer, employee or stockholder and entering into any employment, severance or similar agreement with any director, officer or employee (except the hiring of employees who are not officers or directors in the Ordinary Course), (c) refrain from adopting, amending or increasing any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or with any of their respective, directors, officers or employees, except for adoptions and increases of bonus plans in the Ordinary Course of the Company and its Subsidiaries, and as required by applicable law, (d) refrain from Table of Contents entering into any contract or commitment except contracts and commitments in the Ordinary Course, (e) refrain from increasing their indebtedness for borrowed money, except borrowings in the Ordinary Course under existing or replacement lines of credit, provided that such borrowings, together with all indebtedness for borrowed money existing as of the date hereof, shall not exceed $6,800,000 in the aggregate, (f) refrain from canceling or waiving any claim or right of substantial value which individually or in the aggregate is material, (g) refrain from declaring or paying any dividends in respect of their respective capital stock or redeeming, purchasing or otherwise acquiring any of their respective securities, other than repurchases of stock from employees upon termination of employment (to the extent that the Company or a Subsidiary thereof has expressly agreed and is bound as of the date of this Agreement to do so), (h) refrain from making any material change in accounting methods or practices, except as required by law, the SEC or GAAP, (i) except as contemplated by Section 9.8, refrain from selling any shares of capital stock or any other securities, as the case may be, or issuing any securities convertible into, or options, warrants or rights to purchase or subscribe to, or entering into any arrangement or contract with respect to the issue and sale of, any shares of their respective capital stock or any other securities, or re-pricing any existing options, warrants or rights to purchase any shares of their respective capital stock, or making any other changes in their respective capital structures, except such issuances or sales of securities which either the Company or any of its Subsidiaries is already obligated to make as of the date of this Agreement and the Closing Date, which are disclosed to FACO and grants of stock options to non-executive employees of the Company and the Retained its Subsidiaries will conduct their business in the ordinary course, which shall include: (a) using commercially reasonable efforts to preserve the business intact and to preserve the goodwill of customers and others having material business relations with Ordinary Course; provided that the Company and the Retained Subsidiaries; (b) using commercially reasonable efforts may issue warrants to (i) maintain the Assets in all material respects purchase in the same working order aggregate not more than 100,000 shares of its common stock (which number shall be adjusted to reflect any stock split or combination with respect to the Company’s common stock that occurs after the date of this Agreement) in connection with refinancing its existing lines of credit, (j) refrain from selling, leasing or otherwise disposing of any asset or property other than in the Ordinary Course, (k) refrain from making any capital expenditure (except to the extent that the Company or a Subsidiary thereof has expressly agreed and condition as such Assets are in is bound as of the date of this AgreementAgreement to make such capital expenditure) or commitment therefor, reasonable wear and tearexcept in the Ordinary Course, casualty and other events beyond (l) refrain from writing off as uncollectible any notes or accounts receivable, except write-offs in the Company's and Ordinary Course, none of which individually or in the Retained Subsidiaries controlaggregate is material, excepted and subject (m) refrain from taking any action that could reasonably be expected to the sale of result in (i) any of such Assets the representations and warranties of the Company set forth in the ordinary course of business, and this Agreement becoming untrue or (ii) not liquidate the Assets to cash except in the ordinary course of business; (c) using commercially reasonably efforts to retain its employeesas otherwise permitted by Section 6.4 or 10.1, subject to the termination of employees in the ordinary course of business or for cause; (d) keeping in force at no less than their present limits, if available at commercially reasonable cost, all existing bonds and policies of insurance insuring the Assets or the business of the Company and the Retained Subsidiaries; (e) not unreasonably delay the acceptance of any new equipment or machinery presently on order; (f) not unreasonably delay commencing or completing any material capital expenditure or capital improvement project heretofore approved by the Company or the Retained Subsidiaries; (g) not enter into any material contract, commitment, arrangement or transaction of the type described in SECTION 3.12 hereof, except for contracts for the sale of goods or services or the purchase of inventory and supplies, personal property leases and nondisclosure agreements, in each case in the ordinary course of business; and (h) using commercially reasonable efforts to cause the Company and the Retained Subsidiaries not to suffer, permit or incur any of the transactions or events described in SECTION 3.26 hereof conditions to the extent such events or transactions are within Mergers set forth in Section 7 not being satisfied, (n) use reasonable best efforts to refrain from taking any action outside the control Ordinary Course that would reasonably be expected to (i) delay the filing of the Company definitive Proxy Statement/Prospectus or require the amendment of the definitive Proxy Statement/Prospectus after being filed or (ii) delay the effectiveness of the Registration Statement or require a post-effective amendment to the Registration Statement and (o) refrain from agreeing to do any of the Retained Subsidiariesforegoing.

Conduct of the Business of the Company Prior to Closing. Except as in the Ordinary Course of Business or with the prior written consent in writing of Purchaser Parent (which consent shall not be unreasonably withheld, delayed or denied), or as otherwise provided otherwise in Schedule 3.2 or in any other Schedule attached to this Agreement, and except as may be required to effect the transactions contemplated by this Agreement, or as is otherwise authorized by this Agreement, RMO covenants that he shall, and shall cause the Company covenants thatto, between during the period commencing on the date of this Agreement and terminating at the Closing Date, the Company and the Retained Subsidiaries will conduct their business in the ordinary course, which shall includeClosing: (a) using preserve intact the legal existence of the Company and carry on the Company’s business in the Ordinary Course of Business, and use its commercially reasonable efforts to preserve the business intact and to preserve the goodwill of customers and others having material business relations with the Company and the Retained Subsidiaries; Company; (b) using commercially reasonable efforts to (i) maintain the Assets in all material respects in the same working order and condition as such Assets are in as of the date of this Agreement, reasonable wear and tear, casualty and other events beyond the Company's and the Retained Subsidiaries control, excepted and subject to the sale of any of such Purchased Assets in the ordinary course Ordinary Course of business, and (ii) not liquidate the Assets to cash except in the ordinary course of business; Business; (c) using commercially reasonably efforts to retain its employees, subject to the termination of employees in the ordinary course of business or for cause; (d) keeping keep in force at no less than their present limits, if available at commercially reasonable cost, limits all existing surety bonds and policies of insurance insuring the Purchased Assets or the business of the Company and the Retained Subsidiaries; (e) not unreasonably delay the acceptance of any new equipment or machinery presently on order; (f) not unreasonably delay commencing or completing any material capital expenditure or capital improvement project heretofore approved by the Company or the Retained Subsidiaries; (g) not enter into any material contract, commitment, arrangement or transaction of the type described in SECTION 3.12 hereofBusiness, except for contracts for to the sale of goods extent that any such surety bond or services insurance policy is no longer applicable or otherwise required pursuant to the purchase of inventory and supplies, personal property leases and nondisclosure agreements, in each case in the ordinary course of business; and Business; (hd) using use commercially reasonable efforts to cause maintain in full force and effect all Permits held by the Company and Company, except those Permits the Retained Subsidiaries failure of which to hold, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; (e) neither enter into, modify, amend or terminate any Acquired Contract, nor waive, release, compromise or assign any material rights or claims thereunder, nor suffer, permit or incur any of the transactions or events described in SECTION 3.26 hereof this Section 3.2 to the extent such events or transactions are within the reasonable control of RMO or the Company; (f) not change the relationship with or terminate any customer of the Company; (g) not change any collection, payment or credit practices; (h) not change any of the prices charged with respect to a customer of the Company or the Acquired Contracts; (i) not make or permit any change in the Company’s Organizational Documents; (j) not make any changes in the accounting methods or practices of the Company; (k) not (i) pay, or incur any obligation for any payment of, any contribution or other amount to, or with respect to, any Company Plan, (ii) pay any bonus to, make any loan, pay or transfer any Assets to, or grant any increase in the compensation of, any Company members, officer, or employee, (iii) make any increase in the pension, retirement or other benefits of the members, officers, or employees, except as set forth in Schedule 3.2, or (iv) hire any additional employees, even in the Ordinary Course of Business, without the prior written consent of the Parent, which consent shall not be unreasonably withheld; (l) not have the Company pay, lend or advance any amount to or in respect of, or sell, transfer or lease any Purchased Assets to, or enter into any agreement, arrangement or transaction with, RMO or any Non-Company Affiliate, except for the payments, agreements, arrangements, leases, transactions and arrangements set forth in Schedule 3.2; (m) not permit the Retained SubsidiariesCompany to (i) incur or assume any indebtedness for borrowed money or issue any debt securities, or (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any Person; (n) not permit the Company to (i) make any capital contributions to, or investments in, any Person, (ii) refinance or restructure any existing indebtedness, (iii) pledge or otherwise encumber shares of any Company capital stock, or (iv) mortgage or pledge any of the Purchased Assets, or create or suffer to exist any Lien thereupon; (o) not permit the Company to acquire, sell, lease or dispose of any Purchased Assets other than in the Ordinary Course of Business; (p) not permit the Company to (i) acquire any Person (or division thereof), any equity interest therein or all or substantially all of the assets thereof whether through a merger, consolidation, purchase or otherwise, or (ii) enter into a joint venture, partnership or any other equity alliance with any Person; (q) not permit RMO or any Non-Company Affiliate to hire any essential employee of the Company without Parent’s prior written consent; and (r) not agree to do anything, or agree to permit the Company to do anything, that would violate any of the foregoing affirmative or negative covenants of this Section 3.2.

Conduct of the Business of the Company Prior to Closing. Except as in the Ordinary Course of Business or with the prior written consent in writing of Purchaser Parent (which consent shall not be unreasonably withheld, delayed or denied), or as otherwise provided otherwise in Schedule 3.2 or in any other Schedule attached to this Agreement, and except as may be required to effect the transactions contemplated by this Agreement, or as is otherwise authorized by this Agreement, RMO covenants that he shall, and shall cause the Company covenants thatto, between during the period commencing on the date of this Agreement and terminating at the Closing Date, the Company and the Retained Subsidiaries will conduct their business in the ordinary course, which shall includeClosing: (a) using preserve intact the legal existence of the Company and carry on the Company’s business in the Ordinary Course of Business, and use its commercially reasonable efforts to preserve the business intact and to preserve the goodwill of customers and others having material business relations with the Company and the Retained Subsidiaries; Company; (b) using commercially reasonable efforts to (i) maintain the Assets in all material respects Tangible Personal Property in the same working order and condition as such Assets are in as Ordinary Course of the date of this Agreement, reasonable wear and tear, casualty and other events beyond the Company's and the Retained Subsidiaries control, excepted and subject to the sale of any of such Assets in the ordinary course of business, and (ii) not liquidate the Assets to cash except in the ordinary course of business; Business; (c) using commercially reasonably efforts to retain its employees, subject to the termination of employees in the ordinary course of business or for cause; (d) keeping keep in force at no less than their present limits, if available at commercially reasonable cost, limits all existing surety bonds and policies of insurance insuring the Assets and the Company’s business, except to the extent that any such surety bond or insurance policy is no longer applicable or otherwise required pursuant to the business of the Company and the Retained Subsidiaries; Company; (ed) not unreasonably delay the acceptance of any new equipment or machinery presently on order; (f) not unreasonably delay commencing or completing any material capital expenditure or capital improvement project heretofore approved by the Company or the Retained Subsidiaries; (g) not enter into any material contract, commitment, arrangement or transaction of the type described in SECTION 3.12 hereof, except for contracts for the sale of goods or services or the purchase of inventory and supplies, personal property leases and nondisclosure agreements, in each case in the ordinary course of business; and (h) using use commercially reasonable efforts to cause maintain in full force and effect all Permits held by the Company and Company, except those Permits the Retained Subsidiaries failure of which to hold, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; (e) neither enter into, modify, amend or terminate any Material Contract or Real Property Lease, nor waive, release, compromise or assign any material rights or claims thereunder, nor suffer, permit or incur any of the transactions or events described in SECTION 3.26 hereof Section 5.7 to the extent such events or transactions are within the reasonable control of the Member or the Company; (f) not make any distributions of the Assets to the Member in the form of return of capital or cash distributions; (g) not make or permit any change in the Company’s Organizational Documents, or in the Company’s authorized, issued or outstanding securities; (h) not issue any additional membership interests or other securities or ownership interests of the Company, grant any stock option or right to purchase any security or ownership interest of the Company, issue any security or ownership interest convertible into such securities or ownership interests, purchase, redeem, retire or otherwise acquire any of such securities or ownership interests, or declare, set aside or pay any cash distribution in respect of the securities or ownership interests of the Company; (i) not make any changes in the accounting methods or practices of the Company; (j) not (i) pay, or incur any obligation for any payment of, any contribution or other amount to, or with respect to, any Company Plan, (ii) pay any bonus to, make any loan, pay or transfer any Assets to, or grant any increase in the compensation of, the Company director, officer, or employee, (iii) make any increase in the pension, retirement or other benefits of the directors, officers, or employees, except as set forth in Schedule 3.2(j), or (iv) hire any additional employees, even in the Ordinary Course of Business, without the prior written consent of the Parent, which consent shall not be unreasonably withheld; (k) not have the Company pay, lend or advance any amount to or in respect of, or sell, transfer or lease any Assets to, or enter into any agreement, arrangement or transaction with, the Member or any Non-Company Affiliate, except for the payments, agreements, arrangements, leases, transactions and arrangements set forth in Schedule 3.2(k); (l) not permit the Retained SubsidiariesCompany to (i) incur or assume any indebtedness for borrowed money or issue any debt securities, or (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any Person; (m) not permit the Company to (i) make any loans, advances or capital contributions to, or investments in, any Person, (ii) pledge or otherwise encumber the Company Interests, or (iii) mortgage or pledge any of the Assets, or create or suffer to exist any Lien thereupon; (n) not permit the Company to acquire, sell, lease or dispose of any Assets; (o) not permit the Company to (i) acquire any Person (or division thereof), any equity interest therein or all or substantially all of the assets thereof whether through a merger, consolidation or purchase, or (ii) enter into a joint venture, partnership or any other equity alliance with any Person; (p) not permit RMO or any Non-Company Affiliate to hire away any essential employee of the Company without Parent’s prior written consent; and (q) not agree to do anything, or agree to permit the Company to do anything, that would violate any of the foregoing affirmative and negative covenants of this Section 3.2.