Common use of Conduct of the Company’s Business Clause in Contracts

Conduct of the Company’s Business. Seller agrees that, during the period from the date of this Agreement to the Closing, except as otherwise set forth in Section 6.1(b) of the Disclosure Schedule or as contemplated by this Agreement, including the making of the Distributions permitted under Section 3.2 and the provisions of Section 6.8(i), or consented to by Buyer (which consent shall not be unreasonably withheld or delayed): (a) Seller shall cause the Company to conduct its business in all material respects in the Ordinary Course of Business; and (b) Without limiting the generality of the foregoing, Seller shall cause the Company: to (i) not sell or dispose of any of its material properties or assets, except in the Ordinary Course of Business; (ii) maintain: (A) all of the material assets, properties, machinery and equipment owned, leased or used by the Company in their current condition, ordinary wear and tear accepted, and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable to that in effect on the date hereof; (iii) not, except in the Ordinary Course of Business: (A) amend, modify or terminate any Contract set forth in Section 4.15 of the Disclosure Schedule or (B) enter into any Contract that would have been required to be disclosed in Section 4.15 of the Disclosure Schedule had it been in effect on the date hereof; (iv) not enter into any written employment agreement with any employee or increase in any manner the compensation of any of the officers or other key employees of the Company, except for such increases as are granted in the Ordinary Course of Business in accordance with customary practices (which shall include normal periodic performance reviews and related compensation and benefit increases) or as required by a pre-existing commitment; (v) not adopt, grant, extend or increase the rate or terms of any bonus, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such officers or employees of the Company, except increases required by any applicable law, rule or regulation or as required by a pre-existing commitment; (vi) not materially change or rescind any election in respect of Taxes, materially change any accounting or Tax reporting principle, method or policy in respect of Taxes, or settle or compromise any claim in respect of Taxes (vii) not incur any material Indebtedness payable to any third party, including Seller or any of its Affiliates; (viii) not amend the Company’s Charter or Bylaws or issue or agree to issue shares of capital stock including securities exchangeable for a convertible into capital stock of the Company or merge, consolidate, recapitalize or reorganize; (ix) not license any Intellectual Property Rights (other than non-exclusive licenses to customers in the Ordinary Course of Business; (x) not hire any employee unless such hire is contemplated by the budget for the Company previously provided by Seller to Buyer; and (xi) use its Reasonable Efforts to (A) preserve its relationships with its material suppliers, customers, licensors, licensees and others having business relationships with the Company and (B) to preserve the present business operations, organization and goodwill of the Company.

Conduct of the Company’s Business. Seller agrees that, The Company covenants that during the period from the date of this Agreement and continuing until the earlier of the Closing or the termination of this Agreement in accordance with its terms (the “Pre-Closing Period”), unless Purchaser shall otherwise consent in writing (provided, that, with respect to Sections 6.1(a), 6.1(b)(i), (ii), (ix)(B), (xiv), (xii), (xiv), (xvi), (xvii), (xviii), (xxiii), (xxiv) and (xxv) (but with respect to (xxv), only with respect to those actions listed in the foregoing clauses) such consent shall not be unreasonably withheld, delayed or conditioned), and except to the Closingextent required by Law or disclosed in Section 6.1 of the Disclosure Schedule, and except as otherwise set forth required or permitted by this Agreement: (a) the business of the Company shall be, and the Company shall cause the business of the Company Subsidiaries to be, conducted only in the ordinary course of business, the Company shall not, and it shall cause the Company Subsidiaries not to, take any action except in the ordinary course of business, and the Company shall use, and shall cause the Company Subsidiaries to use, commercially reasonable efforts to preserve intact in all material respects its and their present business organization, keep the relationships of the Company and the Company Subsidiaries with clients, customers, contract manufacturers, suppliers, licensors, licensees, distributors and others having business dealings with the Company and the Company Subsidiaries intact in all material respects and its and their goodwill and ongoing business unimpaired in all material respects, keep available the services of the officers and employees listed in Section 6.1(b6.1(a) of the Disclosure Schedule or as contemplated by this Agreement, including the making of the Distributions permitted under Section 3.2 and the provisions of Section 6.8(i), or consented to by Buyer (which consent shall not be unreasonably withheld or delayed): (a) Seller shall cause the Company to conduct its business maintain in effect all material respects in the Ordinary Course of BusinessPermits and Healthcare Regulatory Authorizations; and (b) Without limiting the generality of the foregoingCompany shall not, Seller and shall cause the Company: to Company Subsidiaries not to, do any of the following: (i) not sell modify the terms of, discount, setoff or accelerate the collection of any accounts receivable, except in a manner consistent with the past practices of the Company and the Company Subsidiaries; (ii) pay accounts payable and other obligations and liabilities other than in the ordinary course of business consistent with the past practices of the Company and the Company Subsidiaries; (iii) (A) sell, assign, transfer, pledge, lease, sublease, license (other than licenses granted in the ordinary course of business), abandon or otherwise dispose of, permit to lapse, encumber or restrict the use of (including by merger, consolidation or sale of capital stock, other equity interests or assets), any entity, business, real or personal properties (including Intellectual Property), assets or rights of the Company or any of the Company Subsidiaries (including capital stock or other equity interests of the Company Subsidiaries) that are material to the Company’s business (other than Permitted Liens), (B) license out any Products, (C) license in any Products or (D) grant any Lien on any of its material properties assets; (iv) amend or otherwise change its Organizational Documents; (v) split, combine, subdivide, redeem, reclassify, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or any rights, warrants or options to acquire any shares of its capital stock; (vi) declare, authorize, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to such shares (except for any dividends paid by the Company Subsidiaries to the Company or other Company Subsidiaries and any cash dividends paid by the Company to the Equityholders that are permitted by the DGCL); (vii) redeem, purchase, acquire or offer to acquire any shares of its capital stock or other securities of, or other ownership interests in, the Company or the Company Subsidiaries; (viii) issue or sell, grant, pledge or otherwise encumber, or agree to sell, grant, pledge or encumber, any shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its capital stock of any class, whether pursuant to the Company Stock Plans or otherwise (other than pursuant to the exercise of the Company Options in accordance with their terms); (ix) acquire or agree to acquire (A) (by merger, consolidation, recapitalization, joint venture or other business combination or acquisition of stock or assets) any corporation, partnership, limited liability company or other business organization or division thereof or (B) any assets or properties that, individually, have a purchase price in excess of Five Hundred Thousand Dollars ($500,000) or, in the aggregate, have a purchase price in excess of One Million Five Hundred Thousand Dollars ($1,500,000) (except for acquisitions of inventory, spare parts, office equipment and supplies and of replacements for worn or obsolete items); (x) except for borrowings and re-borrowings in the ordinary course under the Senior Debt (including all future renewals, replacements and extensions thereof), incur, create, assume or guarantee any indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities of the Company or the Company Subsidiaries or guarantee any debt securities of another Person; (xi) except in the Ordinary Course ordinary course of Business; (ii) maintain: (A) all of the material assetsbusiness, propertiesmake any loans, machinery and equipment ownedadvances or capital contributions to, leased or used by investments in, any other Person, other than between the Company in their current condition, ordinary wear and tear accepted, and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable to that in effect on the date hereof; Subsidiaries; (iii) not, except in the Ordinary Course of Business: (A) amend, modify or terminate any Contract set forth in Section 4.15 of the Disclosure Schedule or (Bxii) enter into any Contract that would have been required be a Material Contract if entered into prior to be disclosed the date hereof, other than Contracts entered into in Section 4.15 the ordinary course of business; (xiii) terminate, amend, modify, assign, waive, release or relinquish any Material Contract other than in the ordinary course of business; (xiv) pay, discharge, settle or compromise any Proceeding pending or threatened against the Company or the Company Subsidiaries resulting in cash payment by the Company or the Company Subsidiaries in excess of One Hundred Thousand Dollars ($100,000) individually or Five Hundred Thousand Dollars ($500,000) in the aggregate; (A) grant any current or former director, officer, manager, employee or employee-equivalent consultant of the Disclosure Schedule had it been Company or the Company Subsidiaries any increase in compensation, bonus or fringe or other benefits or grant any type of compensation or benefits or take any action to accelerate or increase vesting, payment or funding of any compensation arrangement (including equity-based compensation) to any current or former director, officer, manager or employee not previously receiving or entitled to receive such type of compensation or benefit, except for normal increases in cash compensation (including cash bonuses) in the ordinary course of business or as required under the Company Plan in effect as of the date of this Agreement as provided to Purchaser as of the date hereof, (B) enter into or amend any Company Plan or employment, deferred compensation, consulting, severance, change of control, termination, indemnification or other agreement with or involving any current or former director, officer, manager or employee of the Company or the Company Subsidiaries, (C) hire any new employees, unless such hiring is in the ordinary course and is with respect to employees having an annual base salary and incentive compensation opportunity not to exceed One Hundred Thousand Dollars ($100,000) or (D) pay or agree to pay any pension, retirement allowance, termination or severance pay, bonus or other employee benefit not required by any existing Company Plan or other agreement or arrangement in effect on the date hereof; of this Agreement to any employee, officer, director, or other service provider of the Company or any of the Company Subsidiaries, whether past or present; (ivxvi) not change the accounting principles of the Company or the Company Subsidiaries, except as may be required by applicable Law or GAAP; (xvii) make or change any material Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any written employment closing agreement with any employee or increase in any manner the compensation of any of the officers or other key employees of the Company, except for such increases as are granted in the Ordinary Course of Business in accordance with customary practices (which shall include normal periodic performance reviews and Governmental Authority related compensation and benefit increases) or as required by a pre-existing commitment; (v) not adopt, grant, extend or increase the rate or terms of any bonus, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such officers or employees of the Company, except increases required by any applicable law, rule or regulation or as required by a pre-existing commitment; (vi) not materially change or rescind any election in respect of to Taxes, materially change settle any accounting Tax claim or Tax reporting principleassessment, method or policy in respect surrender any right to claim a refund of Taxes, or settle or compromise any claim in respect of Taxes (vii) not incur any material Indebtedness payable consent to any third partyextension or waiver of the limitation period applicable to any Tax claim or assessment, including Seller or any of its Affiliates; (viii) not amend if such action would reasonably be expected to materially increase the Company’s Charter or Bylaws or issue or agree to issue shares of capital stock including securities exchangeable for a convertible into capital stock Tax liability of the Company or mergeany Company Subsidiary for any taxable period ending after the Closing Date or materially decrease the Tax attributes of the Company or any Company Subsidiary existing at the close of business on the Closing Date; (xviii) cancel or amend any of the Company Insurance Policies or permit any Company Insurance Policy to terminate or lapse without replacing such policy with comparable coverage; (xix) except for the transactions contemplated by this Agreement, consolidateadopt a plan of complete or partial liquidation, recapitalize dissolution, merger, consolidation, restructuring or reorganize; recapitalization of the Company or any of the Company Subsidiaries; (ixxx) not license enter into any Intellectual Property Rights (other than Contract pursuant to which the Company or any of the Company Subsidiaries grants any exclusive marketing, sales representative or distribution rights to any third party or grants any non-exclusive licenses to customers compete (whether based on geography, products or otherwise) unless the Contract is terminable by the Company or such Company Subsidiary for any reason and without liability on less than 90 days’ notice; (xxi) enter into new clinical studies in excess of Five Hundred Thousand Dollars ($500,000) individually or One Million Five Hundred Thousand Dollars ($1,500,000) in the Ordinary Course aggregate or enter into new milestones in excess of BusinessTwo Hundred Fifty Thousand Dollars ($250,000); (xxii) enter into new Contracts that provide for royalties, profit share or net share above 30% in favor of other party; (xxiii) authorize, or make any commitment with respect to, capital expenditures that are in excess of Two Hundred Fifty Thousand Dollars ($250,000) individually or Five Hundred Thousand Dollars ($500,000) in the aggregate; (xxiv) spend more than Two Hundred Fifty Thousand Dollars ($250,000) on any new lawsuit or more than Five Hundred Thousand ($500,000) in the aggregate on any existing lawsuits or start any new patent lawsuit or dismiss any existing lawsuits; or (xxxv) not hire agree, in writing or otherwise, to take any employee unless such hire is contemplated by the budget for the Company previously provided by Seller to Buyer; and (xi) use its Reasonable Efforts to (A) preserve its relationships with its material suppliers, customers, licensors, licensees and others having business relationships with the Company and (B) to preserve the present business operations, organization and goodwill of the Companyactions listed in the preceding clauses (i) through (xxiv).

Conduct of the Company’s Business. Seller agrees that, during the period from the date of this Agreement to the Closing, except as otherwise set forth in Section 6.1(bSECTION 6.1(B) of the Disclosure Schedule OF THE DISCLOSURE SCHEDULE or as contemplated by this Agreement, including the making of the Distributions permitted under Section 3.2 and the provisions of Section 6.8(i), or consented to by Buyer (which consent shall not be unreasonably withheld or delayed): (a) Seller shall cause the Company to conduct its business in all material respects in the Ordinary Course of Business; and (b) Without limiting the generality of the foregoing, Seller shall cause the Company: to (i) not sell or dispose of any of its material properties or assets, except in the Ordinary Course of Business; (ii) maintain: (A) all of the material assets, properties, machinery and equipment owned, leased or used by the Company in their current condition, ordinary wear and tear accepted, and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable to that in effect on the date hereof; (iii) not, except in the Ordinary Course of Business: (A) amend, modify or terminate any Contract set forth in Section SECTION 4.15 of the Disclosure Schedule OF THE DISCLOSURE SCHEDULE or (B) enter into any Contract that would have been required to be disclosed in Section SECTION 4.15 of the Disclosure Schedule OF THE DISCLOSURE SCHEDULE had it been in effect on the date hereof; (iv) not enter into any written employment agreement with any employee or increase in any manner the compensation of any of the officers or other key employees of the Company, except for such increases as are granted in the Ordinary Course of Business in accordance with customary practices (which shall include normal periodic performance reviews and related compensation and benefit increases) or as required by a pre-existing commitment; (v) not adopt, grant, extend or increase the rate or terms of any bonus, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such officers or employees of the Company, except increases required by any applicable law, rule or regulation or as required by a pre-existing commitment; (vi) not materially change or rescind any election in respect of Taxes, materially change any accounting or Tax reporting principle, method or policy in respect of Taxes, or settle or compromise any claim in respect of Taxes (vii) not incur any material Indebtedness payable to any third party, including Seller or any of its Affiliates; (viii) not amend the Company’s 's Charter or Bylaws or issue or agree to issue shares of capital stock including securities exchangeable for a convertible into capital stock of the Company or merge, consolidate, recapitalize or reorganize; (ix) not license any Intellectual Property Rights (other than non-exclusive licenses to customers in the Ordinary Course of Business; (x) not hire any employee unless such hire is contemplated by the budget for the Company previously provided by Seller to Buyer; and (xi) use its Reasonable Efforts to (A) preserve its relationships with its material suppliers, customers, licensors, licensees and others having business relationships with the Company and (B) to preserve the present business operations, organization and goodwill of the Company.

Conduct of the Company’s Business. Seller agrees that, The Company covenants that during the period from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement pursuant to its terms, unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), and except to the Closingextent required by law, or as disclosed in the Company SEC Reports or Section 6.1 of the Company Disclosure Schedule, and except as otherwise set forth in Section 6.1(b) of the Disclosure Schedule expressly required or as contemplated permitted by this Agreement, including the making of the Distributions permitted under Section 3.2 and the provisions of Section 6.8(i), or consented to by Buyer (which consent shall not be unreasonably withheld or delayed):: (a) Seller the business of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action, except in the ordinary course of business, and the Company shall use commercially reasonable efforts to preserve intact its present business organization and goodwill, to keep available the services of its officers and key employees and to maintain its qualification as a REIT within the meaning of Section 856 of the Code; (b) the Company shall not, and shall not cause or permit any Company Subsidiary to, do any of the following: (i) sell, pledge, lease, dispose of or encumber any property or assets, except for dispositions of immaterial assets or encumbrances and pledges that are, individually or in the aggregate, immaterial; provided that any disposition set forth on Section 6.1 of the Company Disclosure Schedule must be made pursuant to the terms set forth in such schedule, (ii) amend or propose to amend its charter or bylaws (or comparable organizational documents) in a manner that would adversely affect Parent; (iii) split, combine or reclassify any shares of its stock, or declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to such shares except for (A) regular quarterly dividends in the ordinary course of business, at a rate not to exceed $0.27 per share of Company Common Stock; (B) a prorated dividend for the period from the last record date set pursuant to the foregoing clause (A) through and including the Closing; (C) dividends paid by a wholly-owned direct or indirect Company Subsidiary to such Company Subsidiary’s parent; and (D) with the consent of Parent, not to be unreasonably withheld, conditioned or delayed, the minimum distributions required for the Company to conduct maintain its business qualification as a REIT, to avoid the imposition of any Excise Taxes under Section 4981 of the Code and to avoid incurring any Taxes under Section 857 of the Code; (iv) redeem, purchase, acquire or offer to acquire any shares of its stock; or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the matters listed in all material respects in the Ordinary Course of Businessclauses (i) through (iv) above; and (bc) Without limiting the generality of the foregoingCompany shall not, Seller and shall not cause the Company: to or permit any Company Subsidiary to, (i) not sell issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its stock of its material properties any class or assetsother property or assets whether pursuant to the Company Plans or otherwise; provided, except in however, that the Ordinary Course Company may issue shares of Business; (ii) maintain: Company Common Stock (A) all upon exercise of Options that are outstanding on the material assets, properties, machinery date of this Agreement or are permitted under this Agreement to be issued following the date of this Agreement and equipment owned, leased or used by the Company are exercised in accordance with their current condition, ordinary wear and tear accepted, and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable to that respective terms as in effect on the date hereof; (iii) not, except in the Ordinary Course of Business: (A) amend, modify or terminate any Contract set forth in Section 4.15 of the Disclosure Schedule or this Agreement and (B) enter into any Contract that would have been required pursuant to be disclosed in Section 4.15 of the Disclosure Schedule had it been other Company Plans as in effect on the date hereofof this Agreement; (ii) acquire or agree to acquire (by merger, consolidation or acquisition of stock or assets) any real property, corporation, partnership or other business organization or division thereof (except an existing wholly-owned Company Subsidiary) or acquire other assets other than in the ordinary course; (iii) except for borrowings under the $6,314,000 construction loan related to The Reserve at Xxxxxxx Plantation, Phase II, dated April 11, 2007, incur, create or assume any indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any other person or entity (other than a wholly-owned Company Subsidiary) for borrowed money; (iv) make any loans, advances or capital contributions to, or investments in, any other person, other than by the Company or a wholly-owned Company Subsidiary to the Company or a wholly-owned Company Subsidiary; (v) enter into, renew or materially modify any material lease, contract, agreement or commitment (including any contract, lease, agreement or commitment (A) of a nature that would be required under the Exchange Act to be filed as an exhibit to the Company’s Annual Report on Form 10-K, (B) having a remaining term of more than one year and not terminable (without penalty) on notice of 12 months or less that require payments per year in the aggregate in excess of $500,000 (C) imposing any material restrictions on the ability of the Company or any Company Subsidiary to engage in any line of business, or otherwise imposing material limitations on the conduct of business by the Company or any Company Subsidiary, (D) for insurance or (E) any Company Plan), other than contracts for the sale, license, lease or rent of the Company’s or the Company Subsidiaries’ products or services in the ordinary course of business; (vi) terminate, amend, modify, assign, waive, release or relinquish any material contract rights or any other material rights or claims; (vii) settle or compromise any material claim, action, suit or proceeding pending or threatened against the Company including relating to Taxes; (viii) make any change in executive compensation; (ix) change its accounting principles, practices or methods in a manner that would adversely affect Parent, except as may be required by the SEC, applicable law or GAAP; (x) make or rescind any election relating to Taxes unless the Company reasonably determines, after consultation with the Parent, that such action is required by applicable law or necessary or appropriate to preserve the Company’s qualification as a REIT or the partnership or disregarded status of any Company Subsidiary or otherwise agreed to by the Parent and the Company; (xi) enter into any written employment tax protection, sharing or indemnity agreement or arrangement; (xii) enter into any contracts with any employee or increase in any manner the compensation of any of the officers or other key employees affiliates of the Company, other than the Company Subsidiaries; (xiii) prepay any long-term debt except for such increases as are granted in connection with sales of real property permitted hereunder; (xiv) pay, discharge or satisfy any claims, liabilities or obligations, except in the Ordinary Course ordinary course of Business business, and in accordance with customary practices (which shall include normal periodic performance reviews and related compensation and benefit increases) their terms or as required otherwise covered by a pre-existing commitmentinsurance; (vxv) not adopton a property by property basis, grant, extend or increase the rate or terms make any expenditures in excess of any bonus, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such officers or employees of the Company, except increases required by any applicable law, rule or regulation or as required by a pre-existing commitment; (vi) not materially change or rescind any election in respect of Taxes, materially change any accounting or Tax reporting principle, method or policy in respect of Taxes, or settle or compromise any claim in respect of Taxes (vii) not incur any material Indebtedness payable to any third party, including Seller or any of its Affiliates; (viii) not amend 10% above the Company’s Charter approved operating budget for each such property for fiscal year 2007; or Bylaws (xvi) agree, in writing or issue or agree otherwise, to issue shares of capital stock including securities exchangeable for a convertible into capital stock take any of the Company or merge, consolidate, recapitalize or reorganize; actions listed in clauses (ixi) not license any Intellectual Property Rights through (other than non-exclusive licenses to customers in the Ordinary Course of Business; (xxv) not hire any employee unless such hire is contemplated by the budget for the Company previously provided by Seller to Buyer; and (xi) use its Reasonable Efforts to (A) preserve its relationships with its material suppliers, customers, licensors, licensees and others having business relationships with the Company and (B) to preserve the present business operations, organization and goodwill of the Companyabove.