Common use of Conduct Pending the Closing Clause in Contracts

Conduct Pending the Closing. From the Agreement Date until the earlier of the Closing Date or the termination of this Agreement pursuant to Section 11.1, except (i) as otherwise contemplated, permitted, or required by this Agreement, (ii) as required by Law, (iii) as set forth on Section 6.3 of the Disclosure Schedule or (iv) to the extent that Purchaser otherwise consents in writing, which consent shall not be unreasonably withheld, conditioned or delayed, (x) Seller shall cause the Acquired Assets to be operated in the Ordinary Course of Business in all material respects and (y) Seller shall not: (a) sell, lease, transfer, or otherwise dispose of any of the Acquired Assets; (b) grant or suffer to exist any Lien (other than Permitted Liens) on any of the Acquired Assets; (c) commence any material Legal Proceeding, or settle, pay, discharge, or satisfy any Legal Proceeding, where such commencement, settlement, payment, discharge, or satisfaction would impose any restrictions or limitations upon the Acquired Assets following the Closing; (d) terminate, extend, or modify any Acquired Business Contract or Material Contract, other than to the extent explicitly contemplated or provided by this Agreement or any Related Agreement, or enter into any Contract in respect of the Acquired Assets or the Assumed Liabilities that, if in effect on the Agreement Date, would be a Material Contract; (e) waive or release any right of material value, in each case related to any Acquired Assets or any Assumed Liabilities; (f) fail to keep in force and effect, or allow to lapse, any insurance policy in respect of the Acquired Assets comparable in amount and scope of coverage to that maintained as of the Agreement Date; (g) correspond, communicate or consult with the FDA or similar Governmental Authority, in each case with respect to the Compounds or the Products, other than (x) any immaterial communication in the Ordinary Course of Business, or (y) any such correspondence, communication or consultation required by applicable Law in connection with an adverse event; (h) merge, combine or consolidate itself with any other Person or adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization, or file a certificate of dissolution in respect of Seller or any of its Subsidiaries with the Secretary of State of the State of Delaware; (i) make any distributions to its stockholders or declare or pay any dividends on shares of Seller’s capital stock; or (j) agree in writing to do any of the foregoing.

Conduct Pending the Closing. From 3.1 ACRO covenants and agrees that prior to the Agreement Date until the earlier of the Closing Date or the termination of this Agreement pursuant to Section 11.1Closing, unless Purchaser shall otherwise agree in writing and except (i) as otherwise contemplated, permitted, or required contemplated by this Agreement, (ii) as required by Law, (iii) as set forth on Section 6.3 of the Disclosure Schedule or (iv) to the extent that Purchaser otherwise consents in writing, which consent shall not be unreasonably withheld, conditioned or delayed, (x) Seller shall cause the Acquired Assets to be operated in the Ordinary Course of Business in all material respects and (y) Seller shall not: (a) sellACRO shall not (i) amend its Articles of Incorporation or By-Laws, lease(ii) change the number of authorized or outstanding shares of its capital stock, transferexcept as set forth in Section 1 hereof, or otherwise dispose of (iii) declare, set aside or pay any of the Acquired Assetsdividend or other distribution or payment in cash, stock or property, except as designated herein; (b) grant ACRO shall not (i) issue, grant, sell or suffer pledge or agree or propose to exist issue, grant, sell or pledge any Lien shares of, or rights of any kind to acquire any shares of, its capital stock (ii) incur any indebtedness other than Permitted Liensin the ordinary course of business, (iii) on acquire directly or indirectly by redemption or otherwise any shares of its capital stock of any class or (iv) enter into or modify any contact, agreement, commitment or arrangement with respect to any of the Acquired Assets;foregoing other than in the ordinary course of business, except as stated in this Agreement. (c) commence ACRO shall not assume, guarantee, endorse or otherwise become responsible for the obligations of any material Legal Proceedingother individual, firm or settlecorporation or make any loans or advances to any individual, pay, discharge, firm or satisfy any Legal Proceeding, where such commencement, settlement, payment, discharge, or satisfaction would impose any restrictions or limitations upon the Acquired Assets following the Closingcorporation; (d) terminateACRO shall not make any investment of a capital nature either by purchase of stock or securities, extendcontributions to capital, property transfers or otherwise, or modify by the purchase of any Acquired Business Contract property or Material Contractassets of any other individual, other than to the extent explicitly contemplated firm or provided by this Agreement or any Related Agreement, or enter into any Contract in respect of the Acquired Assets or the Assumed Liabilities that, if in effect on the Agreement Date, would be a Material Contractcorporation; (e) waive ACRO shall not reduce its cash or release any right of material value, in each case related to any Acquired Assets short term investments or any Assumed Liabilities; (f) fail to keep in force and effect, or allow to lapse, any insurance policy in respect of the Acquired Assets comparable in amount and scope of coverage to that maintained as of the Agreement Date; (g) correspond, communicate or consult with the FDA or similar Governmental Authority, in each case with respect to the Compounds or the Productstheir equivalent, other than (x) any immaterial communication to meet cash needs arising in the Ordinary Course ordinary course of Businessbusiness, consistent with past practices, or (y) any such correspondencein performing its obligations under this Agreement; and 3.2 ACRO shall afford Purchaser and its accountants, communication or consultation required by applicable Law in connection counsel and other representatives full access, during normal business hours following coordination with an adverse event; (h) mergeACRO, combine or consolidate itself with any other Person or adopt a plan of complete or partial liquidationthroughout the period prior to the Closing Date, dissolution, consolidation, restructuring, recapitalization or other reorganization, or file a certificate of dissolution in respect of Seller or any of its Subsidiaries with the Secretary of State to all of the State properties, books, contracts, commitments and records (including but not limited to tax returns) of Delaware; ACRO and, during such period, ACRO shall furnish promptly to Purchaser (i) make any distributions a copy of each report, schedule and other document filed or received by it pursuant to its stockholders the requirements of federal or declare or pay any dividends on shares state securities laws, and (ii) all other information concerning the business, properties and personnel of Seller’s capital stock; or (j) agree in writing to do any ACRO that may reasonably be requested . In the event of the foregoingtermination of this Agreement, Purchaser will, and will cause its representatives to, deliver to ACRO all documents, work papers and other material, and all copies thereof, obtained by it or on its behalf from ACRO as a result of this Agreement or in connection herewith, whether so obtained before or after the execution hereof, and will hold in confidence all confidential information, and will not use any such confidential information, until such time as such information is otherwise publicly available or as it is advised by counsel that any such information or document is required by law to be disclosed. If this Agreement is terminated, Purchaser will deliver to ACRO all documents so obtained by it.

Conduct Pending the Closing. From the Agreement Date until the earlier of the Closing Date or the termination date of this Agreement pursuant to Section 11.1until the Closing Date, except (i) as otherwise contemplated, permitted, agreed to in writing by the Company or required otherwise permitted or contemplated by this Agreement, (ii) as required by Law, (iii) as set forth on Section 6.3 of the Disclosure Schedule or (iv) to the extent that Purchaser otherwise consents in writing, which consent shall not be unreasonably withheld, conditioned or delayed, (x) Seller shall cause the Acquired Assets to be operated in the Ordinary Course of Business in all material respects and (y) Seller shall noteach TLC Company shall: (a) conduct its Business in the usual, regular, and ordinary course in substantially the same manner as heretofore conducted and use all reasonable best efforts to maintain and preserve the present business organization of such TLC Company intact and to keep available the services of the TLC Company’s present officers and employees and preserve the present relationships of the TLC Company with its suppliers and customers. (b) maintain the books, accounts and records of each TLC Company on a basis consistent with past practices and in a businesslike manner in accordance with sound commercial practice, and not institute or introduce any new methods of purchase, sale, accounting, billing, or operation relating to the TLC Companies that are not consistent with its past practices; (c) not increase the compensation payable to or to become payable to any officer, employee or independent contractor of any TLC Company from the current compensation levels of any such Person (other than previously scheduled or contractually agreed compensation increases); (d) not incur or agree to incur any liability (other than liabilities to third parties incurred in the ordinary course of business consistent with past business practices); (e) not create any new Lien on any Asset; (f) not sell, leaseassign, transfer, lease or otherwise transfer or dispose of any of the Acquired Assets; (b) grant or suffer to exist any Lien (other than Permitted Liens) on any of the Acquired Assets; (c) commence any material Legal Proceeding, or settle, pay, discharge, or satisfy any Legal Proceeding, where such commencement, settlement, payment, discharge, or satisfaction would impose any restrictions or limitations upon the Acquired Assets following the Closing; (d) terminate, extend, or modify any Acquired Business Contract or Material Contract, other than to the extent explicitly contemplated or provided by this Agreement TLC Shares or any Related AgreementAsset, or enter into any Contract except for sales of inventory in respect the ordinary course of the Acquired Assets or the Assumed Liabilities that, if in effect on the Agreement Date, would be a Material Contract; (e) waive or release any right of material value, in each case related to any Acquired Assets or any Assumed Liabilities; (f) fail to keep in force and effect, or allow to lapse, any insurance policy in respect of the Acquired Assets comparable in amount and scope of coverage to that maintained as of the Agreement Datebusiness consistent with past business practices; (g) correspond, communicate not incur any individual capital expenditure in excess of Ten Thousand Dollars ($10,000) or consult with the FDA or similar Governmental Authority, aggregate capital expenditures in each case with respect to the Compounds or the Products, other than excess of Twenty-Five Thousand Dollars (x) any immaterial communication in the Ordinary Course of Business, or (y) any such correspondence, communication or consultation required by applicable Law in connection with an adverse event$25,000); (h) mergenot declare a dividend or distribution of any money, combine property or consolidate itself with asset to the Shareholder and not issue any debt securities of any TLC Company or any other Person or adopt a plan of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization, or file a certificate of dissolution in respect of Seller or debt security secured by any of its Subsidiaries with the Secretary of State of the State of DelawareAsset; (i) make not adopt any distributions to its stockholders new Benefit Plan or declare or pay any dividends on shares of Seller’s capital stock; orarrangement; (j) agree not amend any Benefit Plan to accelerate the payment or vesting of any benefit or amount payable under such Benefit Plan or increase, extend, expand, or enhance, in writing any manner, the benefits payable under any Benefit Plan; (k) not amend its Articles of Incorporation or Bylaws or other Charter Documents; and/or (l) not take any other action that would cause any representation and warranty of any TLC Company or the Shareholder to do any be inaccurate as of the foregoingClosing Date.

Conduct Pending the Closing. From the Agreement Date until the earlier of the Closing Date or the termination of this Agreement pursuant to Section 11.1, except 10.1 Except (i) as required by applicable law, (ii) as otherwise contemplated, permitted, or required expressly contemplated by this Agreement, (iiiii) as approved by the Bankruptcy Court and not objected to by Buyer, or (iv) with the prior written consent of the Buyer, during the period from the date of this Agreement to and through the Closing Date, the Sellers shall, taking into account the filing of the Bankruptcy Case: 10.1.1 conduct their business only in the ordinary course; 10.1.2 use their commercially reasonable efforts to (A) preserve their present business operations, organization and goodwill, and (B) preserve their present relationships with customers and suppliers; and 10.1.3 use their commercially reasonable efforts, so as to cause actual amounts disbursed to be equal to or less than the corresponding estimated disbursement amounts for each line item set forth under the heading “Disbursements” in the DIP Budget. 10.2 Except (i) as required by Lawapplicable law, (ii) as otherwise contemplated by this Agreement or (iii) as set forth on Section 6.3 with the prior written consent of the Disclosure Schedule or (iv) to Buyer, the extent that Purchaser otherwise consents in writing, which consent shall not be unreasonably withheld, conditioned or delayed, (x) Seller shall cause the Acquired Assets to be operated in the Ordinary Course of Business in all material respects and (y) Seller Sellers shall not: (a) 10.2.1 enter into, mutually modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any material liability or other obligation to any labor organization; 10.2.2 subject any of the Purchased Assets to any Lien, except for Permitted Liens; 10.2.3 cancel or compromise any material debt or claim or waive or release any material right of the Sellers that constitutes a Purchased Asset other than customer accounts receivable compromised in the ordinary course of the business of the Sellers; 10.2.4 enter into any commitment for capital expenditures; 10.2.5 engage in any transaction with any officer, director or Affiliate of any Seller or Affiliate of any such individual; 10.2.6 sell, pledge, dispose of, transfer, lease, license or encumber or permit to lapse or authorize the sale, pledge, disposition, transfer, lease, license, or otherwise dispose encumbrance of, any Purchased Assets, except in the ordinary and usual course of any of the Acquired Assetsbusiness consistent with past practices; 10.2.7 transfer, dispose of, permit to lapse (bexcept in accordance with the terms thereof) or grant any right or suffer to exist any Lien (other than Permitted Liens) on any of the Acquired Assets; (c) commence any material Legal Proceeding, or settle, pay, discharge, or satisfy any Legal Proceeding, where such commencement, settlement, payment, discharge, or satisfaction would impose any restrictions or limitations upon the Acquired Assets following the Closing; (d) terminate, extend, or modify any Acquired Business Contract or Material Contract, other than to the extent explicitly contemplated or provided by this Agreement or any Related Agreementlicenses under, or enter into any settlement regarding the breach or infringement of, any Intangible Property, or modify any existing rights with respect thereto or enter into any material licensing or similar agreements or arrangements other than such licenses, agreements or arrangements entered into in the ordinary course of business consistent with past practices; 10.2.8 enter into, assume or terminate any Material Contract or enter into or permit any material amendment, supplement, waiver or other material modification in respect thereof, except in the ordinary and usual course of the Acquired Assets or the Assumed Liabilities that, if in effect on the Agreement Date, would be a Material Contractbusiness consistent with past practices; (e) waive or release any right of material value, in each case related to any Acquired Assets or any Assumed Liabilities; (f) fail to keep in force and effect, or allow to lapse, any insurance policy in respect of the Acquired Assets comparable in amount and scope of coverage to that maintained as of the Agreement Date; (g) correspond, communicate or consult with the FDA or similar Governmental Authority, in each case with respect to the Compounds or the Products, other than (x) any immaterial communication in the Ordinary Course of Business, or (y) any such correspondence, communication or consultation required by applicable Law in connection with an adverse event; (h) merge, combine 10.2.9 no Seller shall merge or consolidate itself with any other Person or adopt acquire a plan material amount of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or assets of any other reorganization, or file a certificate of dissolution in respect of Seller or any of its Subsidiaries with the Secretary of State of the State of Delaware;Person; and (i) make any distributions to its stockholders or declare or pay any dividends on shares of Seller’s capital stock; or (j) 10.2.10 agree in writing to do anything prohibited by this Section 10.2 or do or agree to do anything that would cause the Sellers’ representations and warranties herein to be false in any of the foregoingmaterial respect.