Common use of Ordinary Course of Business Clause in Contracts

Ordinary Course of Business. Except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9.

Ordinary Course of Business. Except (ai) as otherwise contemplated by this Agreement, (ii) as required by applicable Legal Requirements, (iii) as set forth in Section 5.3 Part 5.1 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (biv) as required consented to in writing by applicable Law; Purchaser (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), from and after the Execution Date and subject to any limitations under applicable Legal Requirements, during the period from the date of this Agreement through the Closing (the "Pre-Closing Period (clauses Period"): (a) – (d), the “Ordinary Course of Business Exceptions”), Seller Company shall (i) conduct its business and operations in the Product Business ordinary course and in substantially the same manner as heretofore such business and operations have been conducted and in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (b) the Company shall use reasonable commercial efforts to preserve intact its current business organization, keep available the services of its current employees and consultants, and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees, consultants and other Persons having business relationships with the Company, all in the ordinary course of business; (c) the Company shall not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, and shall not repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, and, other than management fees pursuant to the Management Services Agreement in an amount not to exceed NIS 15 million per year plus linkage to the Israeli consumer price index, shall not make any other payment (including any interest or any other payment with respect to the Shareholder Loan) to Seller or its Affiliates. For purposes of this clause (c), the term "Affiliates" shall not include the Company, its Subsidiaries or their respective directors and officers; (d) the Company shall not sell, issue or authorize the issuance of (i) settle any capital stock or commence any Litigation or material claim; or other security, (ii) waive any material claims option or rights right to acquire any capital stock or other security, or (iii) any instrument convertible into or exchangeable for any capital stock or other security of material value, in either case in a manner that would constitute an Assumed Liability the Company; (e) the Company shall not amend or otherwise be materially adverse permit the adoption of any amendment to the Product Business Company's Articles of Association, or Purchased Assets from and after effect or permit the ClosingCompany to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction; 5.3.3 sell(f) the Company shall not make any sale, assignment, transfer, abandonment or other conveyance of any asset the value of which is NIS 100 million or more, except transactions pursuant to existing binding Contracts; (g) the Company shall not enter into any material new customer, supplier, lease, license reseller or otherwise dispose of or encumber (distributor agreement other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (ah) terminate, amend the Company shall not change the terms of any employment agreements or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (compensation practices with or without due notice or lapse of time or both) under any senior employees of the Purchased Contracts Company or make across-the-board changes in employment agreements or compensation practices or enter into any new (or amend any existing) employee benefit plan, program or arrangement, except in accordance with pre-existing contractual provisions or increases in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business that are consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in (i) the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) Company shall not enter into any transaction directly or adopt any collective bargaining agreement indirectly with Seller or other Contract with any labor organizationits Affiliates. For purposes of this clause (i), union the term "Affiliates" shall not include the Company, its Subsidiaries or association relating to their respective directors and officers; and (j) the Company shall not agree or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9the clauses above.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 During the period from the date hereof until the Closing Date, VCP shall conduct the operation of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and LA Establishment in the ordinary and usual course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, business. In addition to the extent Seller has prosecution rights pursuant to the Seller License Agreementsabove, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller VCP shall not, and shall cause each of its Affiliates to not, not take any action that wouldmay lead to: (i) physical damage, destruction, loss or that could reasonably be expected to, result in abandonment of any material asset or property of the conditions set forth in ARTICLE 7 not being satisfied. In addition LA Establishment; (and without limiting the generality ii) acquisition, sale, assignment, transfer, lease, sublease, license or other disposal of any material asset or property of the foregoing)LA Establishment; (iii) a material change in the management practices of the LA Establishment, except including changes in prices, distribution channels, product mix, sales policies, geographic limits (export/domestic) etc.; (iv) the creation of any Liens on all or any portion of any material asset or property of the LA Establishment; (v) a material amendment, modification, alteration, failure to renew or termination of any material contract of the LA Establishment; (vi) a waiver of any material rights of the LA Establishment or any cancellation of any material claims, debts or accounts receivable owing to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangibleLA Establishment, other than in the ordinary course of business consistent business; (vii) any form of financial agreement related to the LA Establishment; (viii) revaluation of any tangible or intangible assets of the LA Establishment; (ix) litigation which could have a material adverse effect on the LA Establishment or its financial condition; (x) a material loss; (xi) termination of employment relationships with past a key personnel of the LA Establishment, other than voluntary termination or termination for cause; (xii) a change in the historical practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any working capital of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business EmployeesLA Establishment; or 5.3.10 agree(xiii) a material adverse change in the LA Establishment financial condition, commit business, operations or offer (in writing prospects, provided however, that VCP shall be entitled to withdraw from LA Company the amount of cash or otherwise) cash equivalents of LA Company existing on the Closing Date, subject to take any of the actions described in Sections 5.3.1 through 5.3.9Section 9.09 below.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 4.2.1 During the period commencing on the Execution Date and ending on the earlier to occur of the Seller Disclosure Schedule or Closing and the termination of this Agreement in accordance with Article 8, except (i) as otherwise contemplated by this Agreement or any Ancillary Agreement; , (bii) as required by applicable Law; , (ciii) as required by the terms of any agreement binding upon Seller or its Affiliates as of the Execution Date, (iv) for any actions as expressly taken by Seller that are reasonably necessary to consummate the transactions contemplated by this Agreement or any Ancillary Agreement; , or (dv) as Purchaser Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from Seller shall, and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d)shall cause its Affiliates to, the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course course. In addition, throughout the period commencing on the Execution Date and ending on the earlier to occur of business consistent the Closing and the termination of this Agreement in accordance with past practice; Article 8, Seller shall, and (ii) shall cause its Affiliates to, use all commercially reasonable efforts to: : (Aa) market and promote the Product consistent with the efforts used to market and promote the Product immediately prior to the Execution Date; (b) preserve the relationship of the Product Business with the counterpart(s) under the Purchased Contracts; (c) other than as set forth in Section 4.2.1(c) of the Disclosure Schedules, maintain in effect all material applications and its registrations for Trademarks included in the Purchased Trademarks and Patent Rights included in the Purchased Patents; (d) maintain satisfactory relationships with, and preserve the goodwill of, suppliers and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) customers having material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and ; (Be) prosecute pay all payables exclusively relating to the Product Business in good faith and maintain all the Seller Owned Registered Product IP and, ordinary course of business; (f) to the extent Seller has prosecution rights pursuant not prohibited by applicable Law and at Seller’s reasonable discretion in each instance, provide Buyer a reasonable opportunity to appoint a representative to attend (in person or by phone) conference calls and meetings with Governmental Authorities related to the Seller License AgreementsProduct or Product Business, provided that the Seller Licensed Registered Product IP manner of participation of such representative of Buyer shall be solely determined by Seller; and (g) perform its obligations in all material respects under the Purchased Assets. Prior Contracts. 4.2.2 Throughout the period commencing on the Execution Date and ending on the earlier to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any occur of the conditions set forth Closing and the termination of this Agreement in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exceptionaccordance with Article 8, Seller shall not, and shall cause its Affiliates to not:not to, take any of the following actions without the written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed): 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, (a) other than sales or other dispositions of inventory of Product in the ordinary course, pledge, sell, lease, transfer, license, assign or otherwise make subject to an Encumbrance (other than any Permitted Encumbrance) any Purchased Asset; (b) outside of the ordinary course, bundle current and future orders for Product or otherwise accelerate sales of Product into any pre-Closing period; (c) other than non-exclusive licenses or sublicenses granted (i) in the ordinary course covering intellectual property other than the Purchased Patents or any Patent Rights included in the Licensed Registered Product IP, or (ii) in connection with the conduct of business consistent with past practice Existing Clinical Trials, in each case, transfer, assign or grant any license or sublicense of any rights under or with respect to binding orders entered any Purchased Intellectual Property or Licensed Registered Product IP; (d) outside of the ordinary course, enter into prior any material Contract relating primarily or exclusively to the date of this AgreementProduct Business; 5.3.2 (ie) settle terminate or commence amend any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner Contract that would constitute an Assumed Liability a Purchased Contract at the Closing or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closingprovide any notice of termination thereunder; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrancef) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach would, or with the passage of time or provision of notice would, constitute a default (with or without due notice or lapse of time or both) under any Contract set forth on Schedule 4.2.2(f); (g) fail to exercise any rights of the renewal with respect to any Purchased Contracts Contract that by its terms would otherwise expire and which Buyer shall reasonably request Seller to renew; (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000h) on an annual basis); (b) grant a license under or assign initiate any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any Litigation material Contract relating to the Product Business, other than in Business or the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of PurchaserAssets; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices (i) terminate any Existing Clinical Trial (including any post approval study) with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefitsProduct, except in the ordinary course event of business and consistent with past practice a safety concern or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) otherwise necessary to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract comply with any labor organization, union Governmental Authority or association relating to or affecting the Product Business Employeesapplicable Law; or 5.3.10 (j) agree, commit or offer (whether in writing or otherwise) , to take do any of the actions described foregoing (a) through (i). 4.2.3 Nothing contained in Sections 5.3.1 through 5.3.9this Agreement is intended to give Buyer or its Affiliates, directly or indirectly, the right to control or direct the Product Business prior to the Closing, and nothing contained in this Agreement is intended to give Seller or its Affiliates, directly or indirectly, the right to control or direct Buyer’s operations. Prior to the Closing, each of Buyer, on the one hand, and Seller and its Affiliates, on the other hand, shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Affiliates respective operations.

Ordinary Course of Business. Except During the Pre-Closing Period, except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule 4.2 or as otherwise contemplated by this Agreement or any Ancillary Agreement; , (b) as required by applicable Law; , (c) as required by the terms of any agreement binding upon AstraZeneca or its Affiliates as of the Execution Date, (d) for any actions as expressly taken by AstraZeneca to (i) perform its obligations under the Transition Agreement, (ii) obtain any Third Party consents, permits or authorizations in connection with the transactions contemplated by this Agreement; Agreement or any Ancillary Agreement or (diii) conduct transition planning in preparation for the transfer of the Purchased Assets to Horizon, or (e) as Purchaser Horizon shall otherwise consent in writing, which consent AstraZeneca shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) shall use all its commercially reasonable efforts to: to preserve substantially intact the Product Business, and substantially preserve the current relationships of the Product Business with customers, suppliers and other Persons with which the Product Business has material business relations. In furtherance of the foregoing and in no way limiting the foregoing, during the Pre-Closing Period, AstraZeneca shall: (Aa) preserve promptly take all Required Actions and any other office actions with respect to any Purchased Patents; (b) keep in full force and effect all material rights relating to the Product Business and its goodwill and maintain its relations and goodwill with not amend or otherwise modify such rights; (1c) the Key Suppliers, Customers and Distributors; (2) not enter into or amend or waive any material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the under any Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, Contract or that could reasonably be expected to, result in permit any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality Purchased Assets to become subject to any Encumbrance other than Permitted Encumbrances or commit to do any of the foregoing); (d) not sell Product to wholesalers or distributors in the Horizon Territory in quantities that exceed the average order size from such wholesalers or distributors during the three month period preceding the Execution Date, except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, such increased orders are submitted to AstraZeneca and shall cause its Affiliates to not: 5.3.1 acquire any properties by such wholesalers or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, distributors other than in at the ordinary course direct request of business consistent with past practice AstraZeneca or with respect to binding orders entered its Affiliates; or (e) not enter into prior to the date any settlement of this Agreement; 5.3.2 (i) settle or commence any Litigation with any Governmental Authority or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse other Person relating to the Product Business or any Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (any Assumed Liability other than with a Permitted Encumbrance) the Merck Patent Litigation or commit to do any of the Purchased Assets, other than in connection foregoing; and comply with the use all applicable Laws and orders of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract Governmental Authorities relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9.

Ordinary Course of Business. Except 4.2.1 During the Pre-Closing Period, except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule 4.2 or as otherwise contemplated by this Agreement or any Ancillary Agreement; , (b) as required by applicable Law; , (c) as required by the terms of any agreement binding upon Seller or its Affiliates as of the Execution Date, (d) for any actions as expressly taken by Seller that are reasonably required to consummate the transactions contemplated by this Agreement or any Ancillary Agreement; , or (de) as Purchaser Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from Seller shall, and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d)shall cause its Affiliates to, the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and Ordinary Course of Business (provided that no action taken or not taken by Seller or its Affiliates in the ordinary course of business consistent order to comply with past practice; and Section 4.2.2 below shall be deemed to breach or violate this Section 4.2.1), (ii) not terminate, materially modify or waive any material claim under the AG Agreement and (iii) use all commercially reasonable efforts to: (A) to maintain satisfactory relationships with, and preserve the Product Business goodwill of, suppliers and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) customers having material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all . 4.2.2 During the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business ExceptionPre-Closing Period, Seller shall not, and shall cause its Affiliates to not:not to, take any of the following actions without the written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed): 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, (a) other than sales or other dispositions of inventory of Product and Authorized Generic Product in the ordinary course Ordinary Course of business consistent with past practice Business, pledge, sell, lease, transfer, license, assign or otherwise make subject to an Encumbrance (other than any Permitted Encumbrance) any Purchased Asset; (b) transfer, assign, grant any license to, abandon, or allow to lapse the Licensed Trademarks; (c) enter into, terminate (or fail to exercise any rights of renewal), amend, cancel or waive any material right or remedy under, any Product Contract or any Contract relating to the Product Business that would constitute a Purchased Contract (including any Contract providing for a royalty or deferred payment of any kind to be paid to a Third Party in respect of the Product or the Product Business in the Territory) at the Closing; (d) discharge, settle, compromise, satisfy or consent to any entry of any judgment with respect to binding orders entered into prior to to, any claim that (A) results in any restriction on the date conduct of this Agreement; 5.3.2 the Product Business, (iB) settle results in a monetary Liability that constitutes an Assumed Liability of the Product Business or commence any Litigation or material claim; a Liability that will be borne by Buyer or (iiC) waive waive, release or assign any material claims or rights of material valueSeller or its Affiliates against Third Parties with respect to the Product Business; (e) enter into any financing or guarantee arrangement, in either case in a manner that agreement or undertaking with any customer of the Product Business or any financial institution, leasing company or similar business, which would constitute an Assumed Liability Liability; (f) other than in the Ordinary Course of Business (A) offer any rebates, discounts, promotions or credits, to customers with respect to the Product in the Territory, or (B) make any change to any promotional programs or in the manner in which Seller generally extends rebates, discounts or credit to, or otherwise be materially adverse similarly deal with, customers with respect to the Product in the Territory; (g) (A) vary any inventory practices or, [***], vary product delivery timelines other than in an immaterial respect to customers of the Product Business with respect to the Product or the Authorized Generic Product (including inventory held by or on behalf of any of Seller’s or its Affiliates’ wholesalers), including bundling current and future orders for the Product or the Authorized Generic Product or otherwise accelerating sales or delivery of Product or the Authorized Generic Product into any period prior to the Closing, provided that nothing herein shall prevent Seller or its Affiliates from satisfying orders placed by customers of the Product Business in the Ordinary Course of Business so long as the satisfaction thereof complies with this clause (A), and (B) without limiting the foregoing clause (A), [***]; (h) initiate any Litigation material to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice;; or 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (ci) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 do any of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 foregoing (a) take any action which through (h). 4.2.3 Nothing contained in this Agreement is intendedintended to give Buyer or its Affiliates, directly or known toindirectly, the right to control or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting direct the Product Business Employees; or 5.3.10 agreeprior to the Closing, commit and nothing contained in this Agreement is intended to give Seller or offer (in writing its Affiliates, directly or otherwise) indirectly, the right to take any control or direct Buyer’s operations. Prior to the Closing, each of Buyer, on the actions described in Sections 5.3.1 through 5.3.9one hand, and Seller and its Affiliates, on the other hand, shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Affiliates’ respective operations.

Ordinary Course of Business. Except (a) Except as otherwise expressly contemplated by the terms of this Agreement or as set forth in Section 5.3 5.1 of the Seller Disclosure Schedule or as otherwise contemplated by Letter, during the period from the date of this Agreement or any Ancillary Agreement; to the Closing (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the "Pre-Closing Period (clauses (a) – (dPeriod"), the “Ordinary Course of Business Exceptions”Company shall (unless otherwise consented to in writing by the Primary Purchaser), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and its business in the ordinary course of business consistent with past practice; and , (ii) use all commercially reasonable best efforts to: (A) to preserve the Product Business intact its and its Subsidiaries' current business organizations, keep available the services of their current officers, licensors, licensees, advertisers, distributors, governmental authorities and others having business dealings with them to the end that their goodwill and maintain its relations and goodwill with (1) the Key Suppliersongoing businesses shall be unimpaired, Customers and Distributors; (2) material licensors and licensees; and (3iii) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, not take any action that would, could cause any representation or that could reasonably warranty contained in Article III to be expected to, result untrue in any of the conditions set forth material respect or cause a covenant to fail to be satisfied in ARTICLE 7 not being satisfied. In addition any material respect. (and without 1) Without limiting the generality of the foregoing), except to during the extent constituting an Ordinary Course Pre-Closing Period, other than as expressly provided in this Agreement or as set forth in Section 5.1 of Business Exceptionthe Disclosure Letter, Seller each of the Company and its Subsidiaries shall not, and shall cause its Affiliates to notwithout the prior written consent of the Primary Purchaser: 5.3.1 (1) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of capital stock of the Company or any of its Subsidiaries, (B) split, combine or reclassify capital stock of the Company or any of its Subsidiaries or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company or any of its Subsidiaries, (C) purchase, redeem or otherwise acquire any properties shares of capital stock or assets that constitute Purchased Assets any other securities of the Company or Product Inventoryany of its Subsidiaries, either tangible (D) pay or intangibleset aside a "sinking fund" for the payment of any principal amount of outstanding debt securities of the Company or any of its Subsidiaries, or (E) consummate or enter into an agreement to recapitalize the Company or any of its Subsidiaries; (2) issue, deliver, sell, transfer, pledge or otherwise encumber or subject to any Lien any shares of capital stock of the Company or any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants, options or calls to acquire, any capital stock of the Company or any of its Subsidiaries; (3) amend the Certificate of Incorporation, the Bylaws or any similar governing documents of any Subsidiary of the Company; (4) merge, consolidate or reorganize the Company or any of its Subsidiaries with any other Person; (5) form, join, participate or agree to form, join or participate in the business, operations, sales, distribution, or development of any other Person or contribute assets, employees, cash or customers or other resources to any such arrangement, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreementpractices; 5.3.2 (i6) settle acquire or commence agree to acquire by merging or consolidating with, or by purchasing assets of, or by any Litigation other manner, any business or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased AssetsPerson, other than in connection with the use of Product Promotional Materials purchases supplies in the ordinary course of business consistent with past practice; 5.3.4 (a7) terminatesell, amend lease, license, mortgage or modify otherwise encumber or subject to any Lien or otherwise dispose of any of significant amount of its properties or assets, otherwise than in the ordinary course of business; (8) (A) incur any significant amount of Indebtedness or (B) make any loans, advances or capital contributions to, or investments in, any other Person, otherwise than in the ordinary course of business; (9) make, commit or otherwise agree to make any capital expenditure, or enter into any agreement or agreements providing for capital expenditures which, individually, are in excess of $100,000 or, in the aggregate, are in excess of $300,000; (10) pay, discharge, settle or satisfy any material wayclaims, grant a license toliabilities, waive any right underobligations or litigation (absolute, accrued, asserted or take any action unasserted, contingent or fail to take any action that would result in a breach otherwise), other than the payment, discharge, settlement or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except satisfaction, in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars practices; ($100,00011) on an annual basis); (b) grant a transfer or license under to any person or assign entity or otherwise extend, amend or modify any rights to the Intellectual Property of the Purchased Contracts Company or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, its Subsidiaries other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaserbusiness; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse(12) modify, amend, waive alter or materially modify change terms, provisions or rights and obligations of any Seller Authorizationsagreement which is material to the Company and its Subsidiaries taken as a whole; 5.3.7 (a13) take any action which is intendedor omit to take any action which, individually or known toin the aggregate, or reasonably likely to would have a Material Adverse Effect; or material adverse effect on the Condition of the Company; (b14) take any action or omit to take any action which is intended, would reasonably be expected to materially delay or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach materially adversely affect the ability of any of Seller’s covenantsthe parties to obtain any consent, waiver or other approval of any Governmental Authority or other Person required to consummate the transactions contemplated hereby; 5.3.8 grant (15) amend or modify any Plan or adopt any compensation or benefit agreement, plan or arrangement for the benefit of any employee, director, consultant or stockholder of the Company and its Subsidiaries or increase the compensation payable to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contractssuch individual; 5.3.9 (a16) adopt a shareholder rights plan or amend in any material respect any Seller Benefit Plan similar plan or agreement; (17) (A) effect a voluntary liquidation, dissolution or winding up of the Company or any plan that would be a Seller Benefit Plan if adoptedof its Subsidiaries, or (B) voluntarily file for bankruptcy, or otherwise seek protection under any federal or state bankruptcy or similar law; or (18) authorize, or commit or agree to the extent such adoption or amendment would result in take, any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9foregoing actions.

Ordinary Course of Business. Except During the period from the date --------------------------- of this Agreement to the Effective Time, except (i) as otherwise consented to in writing by Newco, (ii) as otherwise approved by the Board of Directors of the Company, (iii) as otherwise approved in writing or caused by an officer, director or employee of the Company who is a present or former officer, director or employee of Newco or any of its affiliates, or the Company will, and with respect to matters identified in clauses (a), (c), (e) and (g) through (l) will cause each of its Subsidiaries to: (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writingcarry on its business in, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d)only in, the “Ordinary Course of Business Exceptions”)usual, Seller shall (i) conduct the Product Business regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable efforts to preserve, intact its present business organization, keep available the services of its present officers and employees, and preserve its relationships with clients, customers, distributors and others having business dealings with it so that its good will and ongoing business shall be unimpaired at the Effective Time; (b) promptly advise Newco in writing of any change in its business, operations, assets or financial condition or in that of its Subsidiaries which is or may reasonably be expected to be materially adverse to the Company and its Subsidiaries, taken as a whole; (c) use its best efforts to obtain (and to cooperate with Newco in obtaining) any consent, authorization or approval of, or exemption by, any governmental or regulatory authority or agency required to be obtained or made by it (or by its Subsidiaries), in connection with the Merger or the taking of any action in connection with the consummation thereof and promptly comply with all filing requirements which federal or state law may impose on the Company or any of its Subsidiaries with respect to the Merger (including the solicitation of proxies in connection with the Merger) and cooperate with and promptly furnish information to Newco in connection with any such filing imposed upon it or on any of its Subsidiaries in connection with the Merger; (d) not amend its Certificate of Incorporation or Bylaws (or other constituent documents); (e) neither acquire nor offer to acquire by merging or consolidating with, or purchase substantially all of the assets of, or otherwise acquire any business of any corporation, partnership, association or other business organization or division thereof; (f) not split, combine or reclassify its outstanding capital stock or declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or purchase or redeem, directly or indirectly, any shares of its capital stock; (g) not issue or sell (or agree to issue or sell) any shares of its capital stock of any class or any options, warrants, conversion or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares, other than pursuant to employee stock options under the Option Plan that are outstanding on the date hereof; (h) not, other than in the ordinary course of business consistent with past prior practice; and , (i) incur any indebtedness for borrowed money or vary the terms of any existing debt securities, (ii) use all commercially reasonable efforts to: issue or sell any debt securities, (Aiii) preserve the Product Business and its goodwill and maintain its relations and goodwill with acquire or dispose of any substantial assets or (1iv) the Key Suppliersenter into any other material transaction; (i) not mortgage, Customers and Distributors; (2) material licensors and licensees; and (3) and pledge or subject to any lien, lease, security interest or other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each charge or encumbrance any of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventoryassets, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (aj) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 not grant to any Product Business Employee officer or member of the board of directors of the Company any increase in compensation in any form, or any severance or termination pay, or grant to any employee any increase in compensation or benefitsany severance or termination pay, except in accordance with the ordinary course terms of business an existing written Agreement disclosed to Newco pursuant to Section 2.07 or with the normal practices of the Company and its Subsidiaries consistent with past practice practice, or as may be required under existing Contractsmake any loan (except in accordance with the normal practices of the Company) to or enter into any employment, severance, consultancy or other agreement with any officer, director or employee; 5.3.9 (ak) adopt or not adopt, amend in any material respect or terminate, any Seller Benefit Plan (bonus, profit sharing, stock option, stock appreciation rights, employee stock ownership, pension, retirement, deferred compensation, employment or any plan that would be a Seller Benefit Plan if adopted) to other plan, Agreement or arrangement for the extent such adoption or amendment would result in any benefit of employees of the actions described in Section 5.3.8; Company or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employeesits Subsidiaries; or 5.3.10 agree, commit or offer (in writing or otherwisel) not agree to take any of the actions described set forth in Sections 5.3.1 through 5.3.9the foregoing subparagraphs (d)-(k).

Ordinary Course of Business. Except During the Product Reversion Transition Period with respect to the applicable Product(s), except (ai) as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated expressly required by this Agreement or any Ancillary Reverse Transition Services Agreement; , (bii) as required by applicable Applicable Law; , (c) for any actions as expressly contemplated by this Agreement; or (diii) as Purchaser Amgen shall otherwise consent to in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from BeiGene shall and after shall cause its Affiliates to: 14.10.1 conduct its Development and Commercialization activities with respect to the Execution Date and during the Pre-Closing Period (clauses (aapplicable Product(s) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) business; 14.10.2 use all commercially reasonable efforts to: (A) to preserve the Product Business applicable Product(s) business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) customers and other Persons having material business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, respect to the extent Seller has prosecution rights applicable Product(s); 14.10.3 not encumber, transfer or assign the assets (other than inventory in the ordinary course) which are to be transferred to Amgen pursuant to Section 14.6 or any Reverse Transition Services Agreement; 14.10.4 not (i) transfer, assign, materially modify, materially amend or terminate any contract or waive, release, assign or fail to exercise or pursue any material rights or claims under any contract which is to be assigned to Amgen pursuant to Section 14.6 or any Reverse Transition Services Agreement, (ii) terminate or materially amend any contract with any Governmental Authority relating to the Seller License Agreements, the Seller Licensed Registered Product IP applicable Product(s) in the Purchased Assets. Prior Collaboration Territory or (iii) enter into any material contract relating to the Closingapplicable Product(s) in the Collaboration Territory, Seller shall notother than contracts that (a) are renewals of existing agreements, (b) do not materially and shall cause each adversely affect the value of its Affiliates to not, take any action that wouldthe applicable Product(s), or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except c) are with respect to the extent constituting an Ordinary Course sale of Business Exceptioninventory, Seller shall not, and shall cause its Affiliates to not:in each case in the ordinary course of business; 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, 14.10.5 other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 applicable Product(s) business, not (i) settle accelerate the delivery or commence sale of any Litigation or material claim; units of the applicable Product(s) in the Collaboration Territory, or (ii) waive any material claims modify the price or rights offer discounts on the sale of material value, units of the applicable Product(s) in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the ClosingCollaboration Territory; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to 14.10.6 not take any action that would result in reasonably be expected to have a breach or constitute a default (with or without due notice or lapse of time or both) under any of material adverse impact on the Purchased Contracts (except in Regulatory Approvals for the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basisapplicable Product(s); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, ; 14.10.7 other than in the ordinary course of business consistent with past practice; providedbusiness, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, not materially alter its activities and practices with respect to inventory levels (including samples) of the Product applicable Product(s) maintained at the wholesalewholesale distribution, chain, sub-distribution or institutional or retail levelslevels in the Collaboration Territory; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except 14.10.8 other than in the ordinary course of business and consistent business, not terminate or alter the duties of any Person performing sales activities with past practice or as may be required under existing Contracts; 5.3.9 (arespect to the applicable Product(s) adopt or amend in any material respect any Seller Benefit Plan (or any plan a manner that would be have a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any material adverse impact on sales of the actions described in Section 5.3.8applicable Product(s); or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; orand 5.3.10 14.10.9 not agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9above.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 Each of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser Sellers shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and use best efforts to preserve the Assets and the Business, preserve relationships with customers, suppliers, franchisors, distributors and others having business dealings with it and keep available the services of their present officers and employees, in each case in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the . No Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, will take any action that would, or that could reasonably be expected to, result in with the purpose of causing any of the conditions to the Purchaser's obligations set forth in ARTICLE 7 Article VII hereof to not being be satisfied. In addition (and Except as expressly contemplated by this Agreement, no Seller shall without limiting the generality prior written consent of the foregoing), Purchaser: (a) except to the extent constituting an Ordinary Course of permitted under the Bankruptcy Code, make any payment with respect to, or in fulfillment of, any Liability, including without limitation, any account payable; (b) enter into any commitment or transaction relating to the Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than not in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreementbusiness; 5.3.2 (ic) settle acquire or commence agree to acquire by merging or consolidating the Business with, or by purchasing any Litigation assets or material claim; equity securities of, or (ii) waive by any material claims or rights of material valueother manner, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber any Person (other than with a Permitted Encumbrance) any purchases of the Purchased Assets, other than in connection with the use of Product Promotional Materials marketable securities in the ordinary course of business consistent with past practice); 5.3.4 (ad) terminateexcept to the extent consistent with the Bankruptcy Proceedings, liquidate, dissolve or otherwise reorganize if such action would have any effect whatsoever on the Business or the Assets; (e) other than ordinary course revisions agreed to orally between the contracting parties, enter into, modify, amend or modify in any material way, grant a license to, waive any right under, or terms of any Assumed Contract; (f) take any action or fail engage in any transaction which would cause any representation or warranty of the Sellers hereunder to take any action be untrue as of the Closing Date; (g) accelerate the receipt of payment with respect to receivables or slow down the payment of payables relating to the Business, provided, however, that would result Purchaser's right to require prior written consent pursuant to the terms of this Section 5.01(g) shall be deemed waived until such time, after the date hereof, that Purchaser invokes such right, in a breach or constitute a default its sole and absolute discretion, by providing written notice to Sellers; (with or without due notice or lapse of time or bothh) under revalue any of the Purchased Contracts (Assets, including without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment business; (i) declare, set aside or pay any dividend or distribution in respect of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, tocapital stock, or under purchase or redeem any shares of capital stock of any respective Seller Intellectual Property(including any security convertible or exchangeable into such capital stock) or issue, grant or otherwise create any option or right to acquire any such capital stock; or or (cj) enter into any material Contract agreement with Med or the Inactive Subs relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9.

Ordinary Course of Business. Except The Vendor undertakes to procure that between the date hereof and the date of Completion Date and save in so far: (ai) as set forth required pursuant to the contracts disclosed in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; Letter against Warranty 6.2 (bContracts); (ii) as required by applicable Lawlaws or regulations; or (c) for any actions as expressly contemplated by this Agreement; or (diii) as agreed in writing by the Purchaser shall otherwise consent in writing, which consent shall (such agreement not to be unreasonably withheld, conditioned withheld or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”)each Group Company will, Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and carry on its business in the ordinary course of business in a manner consistent with past practice; current management practice and more particularly, will not: (iia) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships enter into any agreement or commitment involving any capital expenditure inconsistent with the Product Business; amounts and purposes of the capital expenditures which have, as of the date hereof, been budgeted by the Group Companies and approved by the Vendor; (Bb) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that wouldacquire or dispose of, or that could reasonably be expected toagree to acquire or dispose of, result outside the ordinary course of business, any asset, involving consideration, expenditure or liabilities in excess of EUR 100,000; (c) create any Encumbrance over any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing)property, except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties rights or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other otherwise than in the ordinary course of business consistent with past practice business; (d) incur any additional borrowings or with respect incur any other financial indebtedness (other than ordinary course vehicles leasing) in each case in excess of EUR 100,000 in the aggregate, other than within the Group Companies in the ordinary course of business; (e) dismiss or engage any Senior Employee; (f) make any amendment to binding orders entered the terms and conditions of employment of any Senior Employee (other than minor increases in the ordinary course of business); (g) make any material amendment to any element of the collective status (statut collectif) of its employees, including, but not limited to, to the terms and conditions of any employee benefit scheme or enter into prior any collective bargaining agreement; (h) make any collective salary increase other than required under the applicable collective bargaining agreements; (i) amend its articles of association ("Statuts"); (j) increase or reduce its share capital, issue any securities giving right to its share capital, declare, make or pay any dividend or other distribution to shareholders; (k) be a party to any, sale of business, merger, contribution or spin-off; (l) make any change to its accounting policies except as required by law or by French GAAP; (m) enter into any new contract that if it were in effect on the date of this Agreement, would be a Material Contract, or any agreement with the Vendor's Group or amend or, save as contemplated by this Agreement, terminate or waive any significant rights under any existing Material Contract or any agreement with the Vendors Group; 5.3.2 (in) initiate or settle or commence any Litigation or material claimlitigation involving a claim higher than EUR 125,000; or (ii) waive it being provided that the Vendor shall cause the Group Companies not to settle any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse litigation which may give rise to indemnification from the Product Business or Purchased Assets from and after the ClosingVendor under this Agreement; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbranceo) make any of the Purchased Assets, other than change in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practiceTax elections; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (cp) enter into any material Contract relating new line of business; or (q) commit to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in do any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9foregoing.

Ordinary Course of Business. 4.2.1 Except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by expressly provided in this Agreement or any Ancillary Agreement; (b) the Canadian Purchase Agreement or for actions taken by Seller as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; under the DIP Agreement or (d) as Purchaser shall otherwise consent in writingconnection with the Chapter 11 Cases, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”)Interim Period, Seller shall will (i) conduct the Product Business in substantially the same manner as heretofore conducted and Ordinary Course (other than in the ordinary course of business consistent connection with past practice; a Permitted Settlement) and (ii) use all its commercially reasonable efforts to: (A) to maintain and preserve intact the current organization and Product Business and its to preserve the rights, goodwill and maintain relationships of its relations employees, customers, lenders, suppliers, manufacturers, licensees, licensors, regulators and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons others having business relationships with the Product Business; and (B) prosecute in good faith and maintain all . Without limiting the foregoing, except for actions taken by Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreementsas required by this Agreement, the Seller Licensed Registered Product IP in Canadian Purchase Agreement, the Purchased Assets. Prior to DIP Agreement or the ClosingChapter 11 Cases, without the prior written consent of Buyer, during the Interim Period, Seller shall not, and shall cause each of its Affiliates directly or indirectly: (a) Grant, impose or suffer to not, take be imposed any action that would, or that could reasonably be expected to, result in Encumbrance upon any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets other than Permitted Encumbrances; (b) enter into any Contract that would be a Purchased Contract, materially modify, materially amend, materially breach, repudiate, reject, disclaim, restate or Product Inventoryterminate any Purchased Contract, either tangible or intangiblewaive, release or assign any material rights or claims under any Purchased Contract (other than in connection with a Permitted Settlement); (c) (i) encumber, transfer, abandon, allow to lapse, fail to prosecute or maintain, license (other than in the ordinary course Ordinary Course of business consistent with past practice the Product Business), or with respect to binding orders entered into prior to the date otherwise dispose of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; Purchased Intellectual Property or (ii) waive disclose any material claims or rights confidential Purchased Intellectual Property (in the case of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from each of clauses (i) and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assetsii), other than in connection with a Permitted Settlement); (d) compromise or settle any material Litigation relating to the use of Product Promotional Materials Business or cancel or compromise any material claim or waive or release any material right, in each case, that is related to the Product Business or a Purchased Asset (in each case, other than a Permitted Settlement); (e) other than in the ordinary course Ordinary Course of business consistent with past practice; 5.3.4 (a) terminatethe Product Business, amend or modify in submit any material way, grant a license to, waive any right under, information to or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating discussions with or respond to the any enquiry from any Governmental Authority with respect to any Product Business(in each case, other than in the ordinary course of business consistent connection with past practicea Permitted Settlement); providedand (f) authorize, that notwithstanding anything herein agree or otherwise commit, whether or not in writing, to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in do any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9foregoing.

Ordinary Course of Business. Except (a) as set forth 6.1.1 Without prejudice to any exception expressly provided for in Section 5.3 this Agreement and without prejudice to the provisions of Clause 6.2 relating to the Reorganisation, the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent procure that between the date hereof and the Closing Date, the T&D Activities shall be carried out in writingthe Ordinary Course of Business. 6.1.2 In addition, which consent between the date hereof and the Closing Date, without prejudice to the provisions of Clause 6.2 relating to the Reorganisation, the following decisions shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all taken by the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material valueT&D Activities and by the Entities Carrying Out the T&D Activities, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of which the Seller Disclosure Scheduleso procures, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of the Purchaser, not unreasonably retained or delayed: (i) subject to any binding offers submitted by the Entities Carrying Out T&D Activities as of the date hereof, enter into any agreement or commitment whether with a third party or a member of the Seller’s Group in excess of Euro 25 Million per item exclusive of VAT; 5.3.5 other (ii) enter into any contract which is not capable of being terminated without compensation (except for contracts concluded for an indefinite term) or at any time with less than a twelve month notice, otherwise than in the ordinary course Ordinary Course of business consistent with past practice Business, and enter into any lease agreement on any Property otherwise than at arm’s length conditions or grant any sub-lease agreement on any Property unless there is no other reasonable choice and in such a case at conditions which are not materially less favourable to the lessor than those provided for in the transition to the formulation main lease agreement; (iii) enter into any lease or sub-lease agreement in respect of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained any sites located in Paris or suburbs whose transfer is envisaged at the wholesale, chain, institutional or retail levelsdate hereof; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially (iv) modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) the conditions applying to the extent such adoption collection of receivables or amendment would result in payment owed by the Entities Carrying Out the T&D Activities; (v) without prejudice to the provisions of sub-paragraph (ii) above, enter into, terminate, amend or vary any contract, transaction or arrangement material to any of the actions described Businesses, nor remain in Section 5.3.8; default in the performance thereof; (vi) agree to cancel or waive any substantial debts, claims or any rights (bother than those referred to in Clause 6.2.1 (xviii)) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take excess of Euro 200,000 held by any of the actions described in Sections 5.3.1 through 5.3.9.Entities Carrying Out the T&D Activities (including against the Sellers and its Affiliated Companies);

Ordinary Course of Business. Except Seller will conduct the Business diligently but only in accordance with applicable Laws in the Ordinary Course of Business and will seek to maintain the Business, the Employees, customers and the Purchased Assets using commercially reasonable efforts, except for matters arising in the Ordinary Course of Business or any other matter resulting solely from the occurrence of this Acquisition or the prospect thereof if not otherwise inconsistent with any explicit representation or warranty set forth herein. Without limiting the foregoing, Seller will not, without Buyer’s prior written consent, undertake any of the following actions: (a) as set forth in Section 5.3 of the Seller Disclosure Schedule sell, assign, transfer, lease or as otherwise contemplated by this Agreement dispose of, or purchase or acquire, any Purchased Assets or any Ancillary Agreement; interest therein except in the Ordinary Course of Business; (b) amend, waive or modify any existing Contract other than the Deed of Lease (as required by applicable Law; provided in Section 5.9) or in the Ordinary Course of Business or except as may be necessary solely to permit the assignment thereof to Buyer; (c) enter into any new agreement or obligation, or incur any liability, with or to any Affiliate of Seller, or except for a new office lease commencing on the Closing Date and relating to the New Business, or in the Ordinary Course of Business, with or to any actions as expressly contemplated by this Agreement; other Person, provided that Seller will not submit any bid or (d) as Purchaser shall otherwise consent enter into any contract with a customer billed on an hourly basis involving total estimated revenues in writingexcess of $10,000, or any contract with a customer that is either billed on a fixed price basis or on an hourly basis with a prescribed limit on aggregate fees or expenses involving total estimated revenues in excess of $10,000 for each such contract or $50,000 for all such contracts, without, in any such case, Buyer’s prior review and consent, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – ; (d) make or permit to be made any increase or decrease in the rate of compensation payable or to become payable to any Employees by Seller; (e) amend any insurance or other plan for the benefit of the Employees except as necessary in connection with the Acquisition; (f) make any change in its sales, credit or collection terms and conditions; (g) (i) incur any Liability or assume, guarantee, endorse or otherwise become responsible for the Liabilities of any other Person (whether absolute, accrued, contingent or otherwise), except normal trade or business obligations incurred in the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practiceBusiness; and (ii) use all commercially reasonable efforts to: discharge or satisfy any Lien or pay any Liability (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Supplierswhether absolute, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP andaccrued, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, contingent or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoingotherwise), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course Ordinary Course of business consistent with past practice Business; (iii) mortgage, pledge, create or with respect subject to binding orders entered into prior to a Lien any of the date of this Agreement; 5.3.2 Purchased Assets,; (iiv) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material valuesell, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sellassign, transfer, lease, license lease or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials except in the ordinary course Ordinary Course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right underBusiness, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under acquire any of the Purchased Contracts (Assets or any interest therein except in the ordinary course Ordinary Course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis)Business; (bv) amend, terminate, waive or release any rights or cancel any debt owing to or claim by Seller; and (vi) except pursuant to Section 5.9, transfer or grant a license any rights under any Contracts or assign to any of the Intellectual Property Assets; (h) use, operate, maintain or repair Purchased Contracts Assets other than in accordance with customary industry practices; (i) do any act or omit to do any act, or permit any act or omission to act, which will cause a breach of any Contract; (j) permit any insurance policy naming it as a beneficiary or a loss payee to be canceled, terminated or modified or any Contract granting rights inof the coverage thereunder to lapse unless simultaneously with such termination or cancellation, toreplacement policies providing substantially the same coverage are in full force and effect; (k) fail to pay when due (i) any trade accounts payable, (ii) any payments required by any financing agreements, loan agreements or under Seller Intellectual Property; similar agreements or (ciii) any Taxes; (l) maintain its books, accounts and records in any manner other than the usual, regular and ordinary manner, on a basis consistent with prior years and in a business-like manner in accordance with sound commercial practice; (m) enter into any material Contract relating to the Product Businesstransaction or make any agreement or commitment, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice take or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancelrefrain from taking any action, permit any event to lapseoccur, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action in each case which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described representations, warranties or covenants of Seller contained in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any this Agreement not being true and correct at and as of the Closing Date. Notwithstanding the foregoing, Buyer hereby acknowledges that Seller has recently elected to engage in the New Business and that Seller has entered into discussions with multiple parties regarding the acquisition of assets related to the New Business or the stock of companies which are engaged in the New Business. Seller shall inform Buyer prior to taking all such actions described in Sections 5.3.1 through 5.3.9connection with the New Business. No such actions taken shall adversely affect the Purchased Assets.

Ordinary Course of Business. Except The Company covenants and agrees that, prior to the time (the "Effective Time") of the appointment or election to the board of directors of the Company of persons designated by the Acquiror pursuant to Section ERROR! REFERENCE SOURCE NOT FOUND., unless the Acquiror shall otherwise agree in writing or as otherwise expressly contemplated or permitted by this Agreement: (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall notCompany shall, and shall cause each of its Affiliates to notdirect and indirect subsidiaries (collectively its "Subsidiaries") to, conduct its and their respective business only in and not take any action that wouldexcept in, the usual, ordinary and regular course of business and consistent with past practice; (b) the Company shall not directly or that could reasonably be expected to, result in indirectly do or permit to occur any of the conditions set forth following, whether directly or indirectly: (i) issue, sell, pledge, lease, dispose of, grant any interest in, encumber or agree to issue, sell, pledge, lease, dispose of, grant any interest in ARTICLE 7 not being satisfied. In addition or encumber (and without limiting the generality or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, grant any interest in, encumber or agree to issue, sell, pledge, lease, dispose of, grant any interest in or encumber): (A) any additional shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, any capital stock of the foregoingCompany or any of its Subsidiaries (other than pursuant to the exercise of employee stock options currently outstanding), or (B) any assets of the Company or any of its Subsidiaries (except to the extent constituting an Ordinary Course for sales of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than inventory in the ordinary course of business consistent with past practice and sales and other dispositions of equipment and other personal property not required in running the current business operations of the Company and having an aggregate acquisition cost not in excess of $500,000); (ii) amend or with respect propose to binding orders entered into amend its articles or by-laws or those of any of its Subsidiaries; (iii) split, combine or reclassify any outstanding Shares, or declare, set aside or pay any dividend (other than as disclosed in writing to the Acquiror prior to the date of this Agreement; 5.3.2 (ihereof) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material valueother distribution payable in cash, in either case in a manner that would constitute an Assumed Liability stock, property or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels the Shares; (iv) redeem, purchase or offer to purchase (or permit any of its Subsidiaries to redeem, purchase or offer to purchase) any Shares or other securities of the Product maintained at the wholesale, chain, institutional Company or retail levelsany of its Subsidiaries; 5.3.6 terminate(v) reorganize, cancelamalgamate or merge the Company or any of its Subsidiaries with any other person, permit to lapsecorporation, amend, waive partnership or materially modify any Seller Authorizationsother business organization whatsoever; 5.3.7 (avi) take except for the potential acquisition disclosed to the Acquiror under the code name "Watergate", acquire or agree to acquire (by merger, amalgamation, acquisition of stock or assets or otherwise) any action which is intendedperson, corporation, partnership or known to, other business organization or reasonably likely division or acquire or agree to have a Material Adverse Effectacquire any material assets; or (vii) incur or (b) take commit to incur any indebtedness for borrowed money or omit to take issue any action which is intended, or known to, or reasonably likely to render any debt securities except for the borrowing of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except working capital in the ordinary course of business and consistent with past practice and except borrowings or guarantees necessary to facilitate the financing of the exercise of options pursuant to Section 1.7 (c) the Company shall not, and shall cause each of its Subsidiaries to not (otherwise than as may be required under existing Contractscontemplated in Section ERROR! REFERENCE SOURCE NOT FOUND. of this Agreement): (i) enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officers or directors of the Company other than pursuant to agreements in effect (without amendment) on the date hereof; or (ii) in the case of employees who are not officers or directors, take any action other than in the ordinary, regular and usual course of business and consistent with past practice (none of which actions shall be unreasonable or unusual) with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension benefits, retirement allowances, deferred compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable otherwise than pursuant to agreements, policies or arrangements in effect (without amendment) on the date hereof; 5.3.9 (ad) adopt the Company shall use its reasonable efforts to cause its current insurance (or amend re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect; (e) the Company shall: (i) use its reasonable efforts, and cause each of its Subsidiaries to use its reasonable efforts, to preserve intact their respective business operations, business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries; (ii) not take any action, or permit any of its Subsidiaries to take any action, that would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any Seller Benefit Plan time prior to the Effective Time if then made; and (iii) promptly notify the Acquiror orally and in writing of any material adverse change in the normal course of its or any of its material Subsidiaries' businesses or in the operation of its or any of its material Subsidiaries' properties, and of any material governmental or third party complaints, orders, investigations or hearings (or communications indicating that the same may be contemplated); (f) the Company shall not settle or compromise any plan that would be a Seller Benefit Plan if adopted) claim brought by any current, future, former or purported holder of any securities of the Company in connection with the transactions contemplated by this Agreement or the Offer prior to the extent such adoption Effective Time without the prior written consent of the Acquiror; and (g) the Company shall not enter into or amendment would result in modify any contract, agreement, commitment or arrangement with respect to any of the actions described matters set forth in this Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting ERROR! REFERENCE SOURCE NOT FOUND. without the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any prior consent of the actions described in Sections 5.3.1 through 5.3.9Acquiror.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or Except as otherwise contemplated by the terms of this Agreement, during the period from the date of this Agreement or any Ancillary Agreement; to the Closing Date (the "Pre-Closing Period"), each of the Company and its subsidiaries shall use commercially reasonable efforts to preserve intact its current business organizations, keep available the services of its officers and employees and preserve its relationships with customers, suppliers, licensors, licensees, advertisers, distributors and others having business dealings with it to the end that its goodwill and ongoing businesses shall be unimpaired. (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without Without limiting the generality of the foregoing), except to during the extent constituting an Ordinary Course Pre-Closing Period, each of Business Exception, Seller the Company and its subsidiaries shall not, and shall cause its Affiliates to notwithout the prior consent of Purchaser: 5.3.1 (i) (A) remove the chief executive officer or president (or, if there are no officers with such titles, the officers whose responsibility is executive oversight of the Company's and its subsidiaries' operations) or any executive vice president, or appoint any person to fill a vacancy in any such office, or (B) approve any new, or modify any existing material executive officer and director compensation plans or agreements; (ii) change the number of directors or the composition or structure of the Company's Board of Directors; (iii) except as contemplated by the Restated Certificate, increase or decrease the total number of authorized or issued shares of Preferred Stock; (iv) take any action which would require the approval of the holders of the Preferred Stock pursuant to Article III, Section D.2(b) of the Restated Certificate, if the Preferred Stock were issued; (v) redeem, acquire or otherwise purchase any properties shares of Common Stock or assets that constitute Purchased Assets preferred stock of the Company, except pursuant to Company Plans or Product Inventoryagreements entered into in the ordinary course with employees of the Company; (vi) sell a subsidiary's securities to any third party (other than the Company or any other wholly owned subsidiary of the Company); (vii) sell or transfer any of the Company's or its subsidiaries' technology or other Intellectual Property, either tangible or intangibleto any other person, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement;business; or 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (cviii) enter into any material Contract relating arrangement or contract to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in do any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9foregoing.

Ordinary Course of Business. Except (a) as set forth The Company covenants and agrees that, prior to the Effective Time, unless Nucor shall otherwise agree in Section 5.3 of the Seller Disclosure Schedule writing or as otherwise expressly contemplated or permitted by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses : (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall notCompany shall, and shall cause each of its Affiliates Subsidiaries to, conduct its and their respective business only in and not take or omit to not, take any action except in, the usual, ordinary and regular course of business and consistent with past practice; (b) the Company shall not and the Company shall cause its Subsidiaries not to undertake any reorganization of the Company or its Subsidiaries (other than a Pre-Acquisition Reorganization pursuant to Section 2.5(4)) or enter into any transaction or series of transactions that wouldwould or could have the effect of preventing the Offeror from obtaining a full tax cost ‘bump’ pursuant to paragraph 88(1)(d) of the Canadian Tax Act in respect of the shares of the Subsidiaries and any other non-depreciable capital property owned by the Company or its Canadian Subsidiaries on the date hereof. (c) without limitation to Section 3.1(a), the Company shall not directly or that could reasonably be expected to, result in indirectly do or permit to occur any of the conditions set forth following, whether directly or indirectly: (i) issue, sell, pledge, lease, dispose of, grant any interest in, encumber or agree to issue, sell, pledge, lease, dispose of, grant any interest in ARTICLE 7 not being satisfied. In addition or encumber (and without limiting the generality or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, grant any interest in, encumber or agree to issue, sell, pledge, lease, dispose of, grant any interest in or encumber): (A) any additional shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, any capital stock of the foregoing)Company or any of its Subsidiaries, or (B) any assets of the Company or any of its Subsidiaries except to for: (a) sales of inventory in the extent constituting ordinary course of business; (b) sales and other dispositions of equipment and other personal property not required in running the current business operations of the Company or any of its Subsidiaries and having an Ordinary Course aggregate acquisition cost not in excess of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or Cdn.$5,000,000; (c) encumbrances of assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than acquired in the ordinary course of business consistent with past practice consisting of purchase money security interests or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 similar encumbrances; and (id) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than encumbrances incurred in connection with the use renewal or replacement of Product Promotional Materials the Company’s credit lines; (ii) amend or propose to amend its articles or by-laws or those of any of its Subsidiaries; (iii) split, combine or reclassify any outstanding Shares or other securities of the Company, or declare, set aside or pay any dividend (other than payment of intercorporate dividends to the Company or its Subsidiaries, the regular $0.10 per Share cash dividend, declared and payable on December 29, 2006 to Shareholders of record on December 15, 2006 or any other regularly scheduled quarterly cash dividend in an amount not in excess of $0.10 per Share) or other distribution to Shareholders payable in cash, stock, property or otherwise with respect to the Shares; (iv) redeem, purchase or offer to purchase (or permit any of its Subsidiaries to redeem, purchase or offer to purchase) any Shares or other securities of the Company or any of its Subsidiaries; (v) reorganize, amalgamate or merge the Company or any of its Subsidiaries with any other person, corporation, partnership or other business organization whatsoever; (vi) reduce the stated capital of the Company or any of its Subsidiaries; (vii) acquire or agree to acquire (by merger, amalgamation, acquisition of shares or assets, participation in a joint venture or otherwise) any Person or acquire or agree to acquire any assets other than (i) equipment and other personal property reasonably required in running the current business operations of the Company in the ordinary course of business and having an aggregate acquisition cost not in excess of Cdn.$5,000,000; (ii) as expressly contemplated in the definitive agreement to acquire the business and assets of LEC Steel Inc. (“LEC”) of Brantford, Ontario (the “LEC Agreement”); and (iii) any other acquisition approved by Nucor; (viii) make any capital expenditure or incur any obligations or liabilities in connection therewith (i) in excess of Cdn.$5,000,000; and (ii) as expressly contemplated in the LEC Agreement; (ix) adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company or any of its Subsidiaries; (x) incur or commit to incur any material indebtedness for borrowed money or issue any other material debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other Person (other than in respect of the Company and its Subsidiaries), or make any loans or advances, except in the ordinary course of business consistent with past practice; 5.3.4 (axi) terminatepay, amend discharge or modify in satisfy any material wayclaims, grant a license to, waive any right under, liabilities or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, obligations other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein ; (xii) authorize any release or relinquishment of any contractual right material to the contraryCompany and its Subsidiaries considered as a whole; (xiii) enter into any interest rate swaps, no Contract subject to this Section 5.3.4 currency swaps or any other rate fixing agreement for a financial transaction or enter into any call arrangement of any sort of any forward sale agreement for commodities except for swaps entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into hedging purposes in the ordinary course of business and consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaserpractice; 5.3.5 (xiv) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by generally accepted accounting principles in Canada, or make any material tax election or settle or compromise any material tax liability other than in the ordinary course of business consistent in accordance with past practice practice; (xv) make any gift, charitable contribution, political contribution or similar payment except in accordance with past practices and stated commitments; or (xvi) enter into any contract containing any provision or covenant limiting the ability of the Company or any of its Subsidiaries to (A) sell any products of or to any Person, (B) engage in any line of business or (C) compete with or obtain products form any Person, or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries; (d) without limitation to Section 3.1(a), the Company shall not, and shall cause each of its Subsidiaries to not (otherwise than as provided in the transition to the formulation agreements with Xxxx Xxxxxx of the Second Generation Product, materially alter its activities and practices even date with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels;this Agreement): 5.3.6 terminate, cancel, permit to lapse, amend, waive (i) enter into or materially modify any Seller Authorizations;employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any of their respective senior officers or directors other than pursuant to agreements, policies, plans or arrangements in effect (without amendment) on the date hereof; or 5.3.7 (aii) in the case of employees who are not officers or directors, take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except other than in the ordinary course of business and consistent with past practice with respect to the entering into or materially modifying any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension benefits, retirement allowances, deferred compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable otherwise than pursuant to agreements, policies, plans or arrangements in effect (without amendment) on the date hereof and other than in connection with the transactions provided under the LEC Agreement; (e) the Company shall use its reasonable commercial efforts to cause its current material insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect; (f) the Company shall: (i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable efforts, to maintain and preserve their respective assets business operations, business organizations and goodwill, to keep available, subject to ordinary course of business considerations consistent with past practice, the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries, in all material respects; (ii) not take any action, or permit any of its Subsidiaries to take any action, that would render, or that reasonably may be required under existing Contractsexpected to render, any representation or warranty made by it in this Agreement untrue in any material respect; and (iii) promptly notify Nucor in writing of any Material Adverse Effect in the normal course of its or any of its Subsidiaries’ businesses or in the operation of its or any of its Subsidiaries’ businesses or in the operation of its or any of its Subsidiaries’ properties, and of any material governmental or third party complaints, orders, investigations or hearings (or communications indicating that the same are being contemplated); 5.3.9 (ag) adopt the Company shall not settle or amend compromise any claim brought by any current, former or purported holder of any securities of the Company in connection with the Offer prior to the Effective Time without the prior written consent of the Offeror, not to be unreasonably withheld; (h) the Company shall not enter into or modify any contract, agreement, commitment or arrangement that involves or would reasonably be expected to involve payments outside the ordinary course of business that are in excess of Cdn.$ 5,000,000 in the aggregate over the term(s) of the contract(s); (i) the Company shall use reasonable efforts to take all actions and do or cause to be done all things necessary or advisable under all applicable Laws in order to assist Nucor and the Offeror to complete the Offer and the transactions contemplated by this Agreement, including without limitation, obtaining all requisite or advisable regulatory approvals, including without limitation, under the Investment Canada Act (Canada), the Competition Act (Canada) and the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (Xxxxxx Xxxxxx); (j) the Company and each of the Subsidiaries shall: (i) duly and timely file all Returns required to be filed by it on or after the date hereof and ensure that all such Returns are true, complete and correct in all respects; (ii) timely pay all Taxes which are due and payable; (iii) not make or rescind any expressed or deemed election relating to Taxes; (iv) not make a request for a Tax ruling or enter into a closing agreement with any taxing authorities; (v) not settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes; (vi) not change in any material respect any Seller Benefit Plan of its methods of reporting income, deductions or accounting for income Tax purposes from those employed in the preparation of its Returns for the taxation year ending December 31, 2005, except as may be required by applicable Laws; (vii) take reasonable commercial efforts to minimize the expiration of any tax-loss carry forwards for the Company and its Subsidiaries; and (viii) co-operate with Nucor and the Offeror in respect of Tax planning activities, except activities that are prohibited by applicable Law; and (k) with respect to those corporations, partnerships, joint ventures and other entities in which the Company has a direct or indirect interest of 50% or less, but more than 20% (such entities, collectively, its “Joint Venture Entities”), the Company and its Subsidiaries will exercise or cause to be exercised all veto, approval or other powers or rights available to the Company or any plan that would be a Seller Benefit Plan if adopted) of its Subsidiaries so as to cause, to the extent such adoption the Company or amendment would result in any of its Subsidiaries is able to do so, the actions described Joint Venture Entities to comply with the covenants set forth in Section 5.3.8; or paragraphs (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwisea) to take any (j), inclusive, of the actions described in Sections 5.3.1 through 5.3.9this Section 3.1 as if such Joint Venture Entities were Subsidiaries.

Ordinary Course of Business. Except 4.2.1 During the Pre-Closing Period, except (ai) as set forth in Section 5.3 of the Seller Disclosure Schedule 4.2.1 or as otherwise contemplated by this Agreement or any Ancillary Agreement; , (bii) as required by applicable Law; , (ciii) as required by the terms of any agreement binding upon Seller or its Affiliates, (iv) for any actions as expressly contemplated taken by this Agreement; Seller that are reasonably necessary to consummate the Transactions or (dv) as Purchaser Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from Seller and after the Execution Date and during the Pre-Closing Period its Affiliates (clauses (ax) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course (the “Ordinary Course of business consistent with past practice; and (iiBusiness”) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller necessary to comply with Section 4.2.1(a) and (y) shall not, and shall cause its Affiliates to not: 5.3.1 acquire (a) [REDACTED] (b) accelerate any properties rights or assets obligations under, terminate, materially modify or cancel any Purchased Contract, Contract that constitute would be a Purchased Assets Contract, but for such termination or Product Inventoryacceleration, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this AgreementU.S. Regulatory Approval; 5.3.2 (ic) settle make or commence any Litigation or commit to make material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that capital expenditures which would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the ClosingLiabilities; 5.3.3 (d) sell, dispose of, transfer, lease, license or Encumber any assets that are (or would otherwise dispose of or encumber (other than with a Permitted Encumbrancebe) any of the Purchased Assets, other than (i) sales of inventory in connection the Ordinary Course of Business, (ii) any disposition of inventory that does not comply with the use representations and warranties in Section 3.1.13, or (iii) Permitted Encumbrances; or (e) enter any Contract to do any of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 foregoing ((a) terminate, amend or modify in any material way, grant a license to, waive any right underthrough (d)), or take any action or fail to take any action omission that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or foregoing ((a) through (d)). No action by Seller with respect to matters expressly addressed by subsections (b) enter into through (e) above shall be deemed a breach of clause (x) of Section 4.2.1 unless such action would constitute a breach of any such specific subsection. 4.2.2 Nothing contained in this Agreement is intended to give Buyer or adopt any collective bargaining agreement its Affiliates, directly or other Contract with any labor organizationindirectly, union the right to control or association relating to or affecting direct the Product Business Employees; or 5.3.10 agreeprior to the Closing, commit and nothing contained in this Agreement is intended to give Seller or offer (in writing its Affiliates, directly or otherwise) indirectly, the right to take any control or direct Buyer’s operations. Prior to the Closing, each of Buyer, on the actions described in Sections 5.3.1 through 5.3.9one hand, and Seller and its Affiliates, on the other hand, shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Affiliates respective operations.

Ordinary Course of Business. Except From and after September 1, 2013 and during the Pre-Closing Period, except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule ‎4.2 or as otherwise contemplated by this Agreement or any Ancillary Agreement; , (b) as required by applicable Law; , (c) for any actions as expressly contemplated by this Agreement; , or (d) as Purchaser Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from Seller has, and after the Execution Date shall and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course shall cause each of Business Exceptions”), Seller shall (i) its Affiliates to: 4.2.1 conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) course; 4.2.2 use all commercially reasonable efforts to: (Aa) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliersmaterial suppliers, Customers and Distributors; (2) material customers, licensors and licensees; and (3) licensees and other Persons having business relationships with the Product Business; and (Bb) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP Patent Rights and other Intellectual Property Rights in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this AgreementLicensed Intellectual Property; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 4.2.3 not sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased AssetsAssets or the Licensed Intellectual Property, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practicebusiness; 5.3.4 4.2.4 not (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller the Licensed Intellectual Property; Property in the Buyer Territory or (cb) enter into any material Contract relating to the Product Business, other than (i) commercial Contracts that do not relate to the Licensed Intellectual Property that (1) are renewals of existing agreements, or (2) do not adversely affect the value of the Licensed Intellectual Property or the Product Business, or (ii) Contracts with respect to the sale of inventory, in each case ((i) and (ii)), in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 4.2.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(aSchedule 2.1.1(a)(i) of the Seller Disclosure Schedule or (ii) as a “"Purchased Contract” " without the prior written consent of PurchaserBuyer; 5.3.5 4.2.5 not commence or settle any action, suit or proceeding material to the Product Business, the Purchased Assets or the Licensed Intellectual Property; 4.2.6 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Productbusiness, not materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, chain or institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except levels in the ordinary course of business and consistent with past practice or as may be required under existing Contracts;Buyer Territory; and 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 4.2.7 not agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 ‎4.2.3 through 5.3.94.2.6.

Ordinary Course of Business. Except (a) Except as otherwise expressly contemplated by the terms of this Agreement or as set forth in Section 5.3 5.1 of the Seller Disclosure Schedule or as otherwise contemplated by Letter, during the period from the date of this Agreement or any Ancillary Agreement; to the Closing (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the "Pre-Closing Period (clauses (a) – (dPeriod"), the “Ordinary Course of Business Exceptions”Company shall (unless otherwise consented to in writing by the Primary Purchaser), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and its business in the ordinary course of business consistent with past practice; and , (ii) use all commercially reasonable best efforts to: (A) to preserve the Product Business intact its and its Subsidiaries' current business organizations, keep available the services of their current officers, licensors, licensees, advertisers, distributors, governmental authorities and others having business dealings with them to the end that their goodwill and maintain its relations and goodwill with (1) the Key Suppliersongoing businesses shall be unimpaired, Customers and Distributors; (2) material licensors and licensees; and (3iii) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, not take any action that would, could cause any representation or that could reasonably warranty contained in Article III to be expected to, result untrue in any of the conditions set forth material respect or cause a covenant to fail to be satisfied in ARTICLE 7 not being satisfied. In addition any material respect. (and without b) Without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (Period, other than the binding purchase orders for Product entered into as expressly provided in the ordinary course of business consistent with past practice and this Agreement or as set forth on in Section 5.3.4 5.1 of the Seller Disclosure ScheduleLetter, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) each of the Seller Disclosure Schedule as a “Purchased Contract” Company and its Subsidiaries shall not, without the prior written consent of the Primary Purchaser: (i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of capital stock of the Company or any of its Subsidiaries, (B) split, combine or reclassify capital stock of the Company or any of its Subsidiaries or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company or any of its Subsidiaries, (C) purchase, redeem or otherwise acquire any shares of capital stock or any other securities of the Company or any of its Subsidiaries, (D) pay or set aside a "sinking fund" for the payment of any principal amount of outstanding debt securities of the Company or any of its Subsidiaries, or (E) consummate or enter into an agreement to recapitalize the Company or any of its Subsidiaries; 5.3.5 other than in the ordinary course (ii) issue, deliver, sell, transfer, pledge or otherwise encumber or subject to any Lien any shares of business consistent with past practice or in the transition to the formulation capital stock of the Second Generation ProductCompany or any of its Subsidiaries, materially alter its activities and practices with respect any other voting securities or any securities convertible into, or any rights, warrants, options or calls to inventory levels acquire, any capital stock of the Product maintained at the wholesale, chain, institutional Company or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenantsits Subsidiaries; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and use best efforts to preserve the Assets and the Business, preserve relationships with customers, suppliers, franchisors, distributors and others having business dealings with it and keep available the services of their present officers and employees, in each case in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the . Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, will not take any action that would, with the purpose or that could reasonably be expected to, result in effect of causing any of the conditions to the Seller’s or Purchaser’s obligations set forth in ARTICLE 7 Article VII hereof to not being be satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business ExceptionExcept as expressly contemplated by this Agreement, Seller shall not, and shall cause its Affiliates to notnot without the prior written consent of the Purchaser: 5.3.1 acquire (a) make any properties payment with respect to, or assets that constitute Purchased Assets in fulfillment of, any Liability, including without limitation, any account payable; (b) enter into any commitment or Product Inventory, either tangible or intangible, other than transaction relating to the Business not in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreementbusiness; 5.3.2 (ic) settle acquire or commence agree to acquire by merging or consolidating the Business with, or by purchasing any Litigation assets or material claim; equity securities of, or (ii) waive by any material claims or rights of material valueother manner, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber any Person (other than with a Permitted Encumbrance) any purchases of the Purchased Assets, other than in connection with the use of Product Promotional Materials marketable securities in the ordinary course of business consistent with past practice); 5.3.4 (ad) terminateliquidate, dissolve or otherwise reorganize if such action would have any effect whatsoever on the Business or the Assets; (e) other than ordinary course revisions agreed to orally between the contracting parties, enter into, modify, amend or modify in any material way, grant a license to, waive any right under, or terms of any Assumed Contract; (f) take any action or fail engage in any transaction which would cause any representation or warranty of Seller hereunder to take any action be untrue as of the Closing Date; (g) accelerate the receipt of payment with respect to receivables or slow down the payment of payables relating to the Business, provided, however, that would result Purchaser’s right to require prior written consent pursuant to the terms of this Section 5.01(g) shall be deemed waived until such time, after the date hereof, that Purchaser invokes such right, in a breach or constitute a default its sole and absolute discretion, by providing written notice to Seller; (with or without due notice or lapse of time or bothh) under revalue any of the Purchased Contracts (Assets, including without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment business; (i) declare, set aside or pay any dividend or distribution in respect of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, tocapital stock, or under purchase or redeem any shares of capital stock of Seller Intellectual Property; (including any security convertible or exchangeable into such capital stock) or issue, grant or otherwise create any option or right to acquire any such capital stock; (cj) enter into any material Contract agreement with related parties relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels(k) change compensation; 5.3.6 terminate, cancel, permit to lapse, amend, waive (l) change debt structure or materially modify any Seller Authorizationsoutstanding debt; 5.3.7 (am) take cancel or waive any action which is intended, claims or known to, or reasonably likely to have a Material Adverse Effect; or rights (bn) take or omit to take make any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employeescapital expenditures; or 5.3.10 agree, commit or offer (in writing or otherwiseo) to take conduct any of the actions described in Sections 5.3.1 through 5.3.9layoffs.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 Each of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser Sellers shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and use best efforts to preserve the Assets and the Business, preserve relationships with customers, suppliers, franchisors, distributors and others having business dealings with it and keep available the services of their present officers and employees, in each case in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the . Neither Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, will take any action that would, or that could reasonably be expected to, result in with the purpose of causing any of the conditions to the Purchaser's obligations set forth in ARTICLE 7 Article VII hereof to not being be satisfied. In addition (and Except as expressly contemplated by this Agreement, neither Seller shall without limiting the generality prior written consent of the foregoing), except Purchaser: (a) enter into any commitment or transaction relating to the extent constituting an Ordinary Course Business not in the ordinary course of business; (b) acquire or agree to acquire by merging or consolidating the Business Exceptionwith, Seller shall notor by purchasing any assets or equity securities of, and shall cause its Affiliates to not: 5.3.1 acquire or by any properties or assets that constitute Purchased Assets or Product Inventoryother manner, either tangible or intangible, any Person (other than purchases of marketable securities in the ordinary course of business consistent with past practice practice); (c) liquidate, dissolve or otherwise reorganize if such action would have any effect whatsoever on the Business or the Assets; (d) enter into, modify, amend or waive any terms of any Assumed Contract; (e) take any action or engage in any transaction which would cause any representation or warranty of the Sellers hereunder to be untrue as of the Closing Date; (f) accelerate the receipt of payment with respect to binding orders entered into prior receivables or slow down the payment of payables relating to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material valueBusiness, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials except in the ordinary course of business consistent with past practice; 5.3.4 (ag) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under revalue any of the Purchased Contracts (Assets, including without limitation, writing down the value of inventory or writing off notes or accounts receivable, except as required under GAAP and in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars business; ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (ch) enter into any material Contract agreement with any of its Affiliates relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (i) agree in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9subsections (a)-(h) above.

Ordinary Course of Business. Except (a) During the period from the date --------------------------- hereof until the Closing, except as set forth specifically provided in Section 5.3 of the Seller Disclosure Schedule 4.3 or elsewhere in this Agreement or as otherwise contemplated consented to in writing by this Agreement or any Ancillary Agreement; the Purchaser (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall will not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall will cause each LongView Entity to: (i) conduct carry on its business only in the Product Business ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts to preserve intact its present business organization, keep available the services of its present employees and preserve its relationships with clients, suppliers, customers, distributors and others having business dealings with it, perform its obligations under all Material Contracts and Permits, conduct its business in compliance with all applicable Laws and Judgments, maintain all assets other than those disposed of in the ordinary course of business consistent with past practice; in good repair and condition, maintain its books of account and records in the usual, regular and ordinary manner, and preserve its good will and ongoing business; (ii) use all commercially reasonable efforts to: not amend its Articles of Incorporation or By-laws; (Aiii) preserve not acquire, by merger, consolidation, purchase of stock or assets or otherwise, any interest in any corporation, partnership, association or other business organization or division thereof; (iv) not alter its outstanding capital stock or equity interests or declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or equity interests (in cash or otherwise), or purchase or redeem any shares of its capital stock or equity interests; (v) not issue or sell (or agree to issue or sell) any of its capital stock or equity interests or any options, warrants or other rights to purchase any such stock or interests or any securities convertible into or exchangeable for such stock or interests; (vi) not incur any indebtedness for borrowed money (including through the Product Business and issuance of debt securities) or vary the terms of any existing indebtedness or guarantee or otherwise become liable for any material obligation or liability; (vii) not mortgage, pledge or subject to any Lien, any of its goodwill and maintain its relations and goodwill with properties; (1viii) the Key Suppliersnot discharge or satisfy any material Lien or pay or satisfy any material obligation or liability (fixed or contingent) or compromise, Customers and Distributorssettle or otherwise adjust any material claim or litigation or cancel or waive any claims or rights of value; (ix) not lease, acquire or dispose of any substantial assets or rights, including without limitation any Proprietary IP; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, provided that LongView -------- shall be entitled to grant licenses to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product Proprietary IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreementbusiness; 5.3.2 (ix) settle not make any change in its accounting procedures or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closingpractices unless mandated by generally accepted accounting principles; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrancexi) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and as set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered Schedule 4.2(xi) not to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee officer, director, consultant or employee any increase in or modification of compensation or benefits, except in the ordinary course of business and consistent or any severance or termination pay, or make any loan to or enter into any new employment agreement or arrangement with past practice or as may be required under existing Contractsany such person; 5.3.9 (axii) not adopt, enter into, amend in any material respect, announce any intention to adopt or terminate, any Benefit Plan, program or arrangement of general applicability; (xiii) not reduce or eliminate any insurance coverage; (xiv) not enter into any new Material Contract, or amend in any material respect or grant any Seller Benefit Plan consent under any Material Contract; (xv) not close any bank account; (xvi) not write off as uncollectible any notes or accounts receivable other than in immaterial amounts; (xvii) not commence or terminate any plan that would be a Seller Benefit Plan if adoptedline of business; (xviii) to the extent such adoption not institute any judicial, administrative, arbitral or amendment would result in any of the actions described in Section 5.3.8alternative dispute resolution, proceeding, suit or investigation; or and (bxix) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) not agree to take any of the actions described set forth in Sections 5.3.1 the foregoing subparagraphs (iii) through 5.3.9.(xviii);

Ordinary Course of Business. Except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to Between the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse Agreement and the Closing Date the Seller shall cause the Target and the Subsidiaries to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials conduct their business only in the ordinary course Ordinary Course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in except as otherwise provided by this Agreement. Between the ordinary course date of business consistent with past practice; provided, that notwithstanding anything herein to this Agreement and the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of Date the Seller Disclosure Schedule, which such schedule shall be delivered cause the Target and the Subsidiaries to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of refrain from the Seller Disclosure Schedule as a “Purchased Contract” following measures and actions without the prior written consent of Purchaser;the Buyer (each of which shall be deemed to constitute a deviation from "Ordinary Course of Business"): 5.3.5 (a) incurring any additional interest-bearing debt, other than in the ordinary course Ordinary Course of Business; (b) granting any mortgage, encumbrance or lien on any property or with respect to any assets other than in the Ordinary Course of Business; (c) incurring any contingent liability as guarantor or surety with respect to the obligations of others (other than any of the Subsidiaries) except in the Ordinary Course of Business; CMS HASCHE SIGLE Rechtsanwalte Steuerberater (d) dismissing any Key Employee on any grounds other than grounds entitling the employer to dismiss for cause; (e) incurring or suffering, or paying or discharging any material liability which liability was not either (i) included in the Audited Group Accounts or the Subsidiaries Accounts or (ii) incurred in the Ordinary Course of Business; (f) incurring any obligation or liability to any of the Key Employees, its officers, directors or shareholders, or making any loans or advances to any of its officers, directors, shareholders or Affiliates, excluding normal compensation and expense allowances payable to the Key Employees officers and directors and except in the Ordinary Course of Business; (g) declaring, setting aside or paying any dividend on, or making any group contribution, other than the Group Contribution Payable, or any other distribution on or effecting any split, combination or recapitalisation or any direct or indirect redemption of, the Target Shares or the shares of the Subsidiaries or repaying the Shareholder Loans; (h) making any material modification of the benefits payable to any of the directors or employees of the Target or the Subsidiaries, or making any bonus payment to or agreeing to make any bonus payment to, any of the directors or employees of the Target Group except in the Ordinary Course of Business or in accordance with existing or customary practice or agreements that have been disclosed to the Buyer; (i) making any loan, advance or capital contribution to, or investment in, any person other than loans or advances made in the Ordinary Course of Business; (j) changing the articles of association, deeds or certificates of incorporation, by-laws and any other similar documents of incorporation of the Target or the Subsidiaries; CMS HASCHE SIGLE Rechtsanwalte Steuerberater (k) entering into any agreement or transaction for the sale or acquisition or other disposition of any significant assets of the Target or the Subsidiaries, except in the Ordinary Course of Business on commercial terms or conditions customarily used in the business by the Target or by the Subsidiaries; or (l) entering into any "bill and hold" arrangements with customers for inxxxxory except in the Ordinary Course of Business and for volumes (i) consistent with past practice or in (ii) requested by a customer provided the transition to Target or the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to Subsidiaries have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent not solicited such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9request.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or Except as otherwise contemplated by the terms of this Agreement, during the period from the date of this Agreement or any Ancillary Agreement; to the Closing Date (the "Pre- Closing Period"), each of the Company and its subsidiaries shall use commercially reasonable efforts to preserve intact its current business organizations, keep available the services of its officers and employees and preserve its relationships with customers, suppliers, licensors, licensees, advertisers, distributors and others having business dealings with it to the end that its goodwill and ongoing businesses shall be unimpaired. (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without Without limiting the generality of the foregoing), except to during the extent constituting an Ordinary Course Pre- Closing Period, each of Business Exception, Seller the Company and its subsidiaries shall not, and shall cause its Affiliates to notwithout the prior consent of Purchaser: 5.3.1 (i) (A) remove the chief executive officer or president (or, if there are no officers with such titles, the officers whose responsibility is executive oversight of the Company's and its subsidiaries' operations) or any executive vice president, or appoint any person to fill a vacancy in any such office, or (B) approve any new, or modify any existing material executive officer and director compensation plans or agreements; (ii) change the number of directors or the composition or structure of the Company's Board of Directors; (iii) except as contemplated by the Restated Certificate, increase or decrease the total number of authorized or issued shares of Preferred Stock; (iv) take any action which would require the approval of the holders of the Preferred Stock pursuant to Article III, Section D.2(b) of the Restated Certificate, if the Preferred Stock were issued; (v) redeem, acquire or otherwise purchase any properties shares of Common Stock or assets that constitute Purchased Assets preferred stock of the Company, except pursuant to Company Plans or Product Inventoryagreements entered into in the ordinary course with employees of the Company; (vi) sell a subsidiary's securities to any third party (other than the Company or any other wholly owned subsidiary of the Company); (vii) sell or transfer any of the Company's or its subsidiaries' technology or other Intellectual Property, either tangible or intangibleto any other person, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement;business; or 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (cviii) enter into any material Contract relating arrangement or contract to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in do any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9foregoing.

Ordinary Course of Business. Except (a) as set forth Each party hereto shall, and shall --------------------------- cause its subsidiaries to, carry on their respective operations in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writingusual, which consent shall not be unreasonably withheld, conditioned or delayed, from regular and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business ordinary course in substantially the same manner as heretofore conducted and in compliance with applicable laws and regulations to the ordinary course of business consistent with past practice; extent that failure to be in compliance would constitute a BEC Material Adverse Effect or a CES Material Adverse Effect, as the case may be, and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or preserve intact their present business organizations and 42 goodwill, preserve the goodwill and relationships with customers, suppliers and others having business dealings with them, (ii) waive any subject to prudent management of workforce needs and ongoing or planned programs relating to down-sizing, re-engineering and similar matters currently in force, keep available the services of their present employees as a group, (iii) maintain and keep material claims or rights of material valueproperties and assets in as good repair and condition as at present, subject to ordinary wear and tear, and (iv) maintain supplies and inventories in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business quantities consistent with past practice; 5.3.4 (a. Except as set forth in Section 6.1(a) terminateof the CES Disclosure Schedule or the BEC Disclosure Schedule, amend respectively, or modify except as otherwise expressly provided in this Article VI, no party shall, nor shall any party permit any of its subsidiaries to, enter into a new line of business, or make any change in a line of business it engaged in as of the date hereof involving any material wayinvestment of assets or resources or any material exposure to liability or loss, grant in the case of CES, to CES and its subsidiaries taken as a license towhole, waive any right underand in the case of BEC, to BEC and its subsidiaries taken as a whole, or take any action or fail to take any action that would result in a breach make it materially less likely that BEC can obtain the BEC Required Statutory Approvals or constitute a default (with or without due notice or lapse of time or both) under any of that CES can obtain the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9CES Required Statutory Approvals.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or Except as otherwise contemplated by the terms of this Agreement, during the period from the date of this Agreement or any Ancillary Agreement; to the Closing Date (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre"PRE-Closing Period (clauses (a) – (dCLOSING PERIOD"), the “Ordinary Course of Business Exceptions”), Seller Company shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and its business in the ordinary course of business consistent with past practice; and , (ii) use all commercially reasonable efforts to: (A) to preserve the Product Business intact its and its Subsidiaries' current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, advertisers, distributors, governmental authorities and others having business dealings with them to the end that their goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; ongoing businesses shall be unimpaired and (3iii) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, not take any action that would, or that could reasonably cause any representation and warranty contained in Article IV to be expected to, result untrue in any of the conditions set forth material respect or cause a covenant to fail to be satisfied in ARTICLE 7 not being satisfied. In addition any material respect. (and without b) Without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 Period, each of the Seller Disclosure ScheduleCompany and its Subsidiaries shall not, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser;the Purchasers (not to be unreasonably withheld): 5.3.5 (i) other than in accordance with the ordinary course of business consistent with past practice or in the transition to the formulation provisions of the Second Generation ProductTransaction Agreements, materially alter change the authorized number of members of the Board of Directors of the Company or DP&L or the composition of the Board of Directors of the Company or DP&L; (ii) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its activities capital stock payable in cash, stock, property or otherwise, other than (I) dividends and practices distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent, (II) dividends required to be paid on the DP&L Preferred Stock in accordance with the terms of the DP&L Preferred Stock or (III) regular quarterly dividends of the Company with respect to inventory levels the Company Common Stock in an amount not to exceed the amount of the Product maintained at most recent regular quarterly dividend as of the wholesaledate hereof, chainper share per quarter, institutional or retail levels(B) effect any reorganization or recapitalization or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; 5.3.6 terminate(iii) other than as required by the fiduciary duties of the Board of Directors of the Company under Ohio law or to comply with the electricity deregulation laws of the State of Ohio, cancel(A) solicit or discuss with or provide information to any other Person, permit or enter into any agreement with respect to lapseor consummate, any material acquisition, sale, lease, merger, consolidation, dissolution, restructuring, recapitalization or other business combination or reorganization transaction (other than in accordance with the Asset Purchase Agreement by and between DP&L, Indiana Energy, Inc. and Number-3CHK, Inc. dated December 14, 1999) or (B) enter into any proposed transaction or series of related transactions involving a Change of Control (as defined below) of the Company; (iv) other than in accordance with the provisions of this Agreement or as required by Company Plans existing as of the date hereof, redeem, acquire or otherwise purchase any shares of capital stock of the Company or DP&L; (v) other than pursuant to the sole action of the Company's shareholders or in accordance with the provisions of this Agreement, amend, waive repeal or materially modify any Seller Authorizationsalter the Company's Articles or Regulations; 5.3.7 (avi) take any other action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any specified under Section 2.4 of Seller’s representations or warranties untrue or misleading, or the Securityholders Agreement which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in require the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any consent of the actions described in Section 5.3.8Equity Purchaser if such action were taken immediately following the Closing Date; or or (bvii) enter into any arrangement or adopt any collective bargaining agreement contract or other Contract with any labor organization, union otherwise agree or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9foregoing actions.

Ordinary Course of Business. Except Subject to applicable Law and except as otherwise required pursuant to this Agreement, from the date hereof until the Closing, Seller shall carry on the PDP Business in the ordinary course and substantially in the same manner as heretofore carried on by it. In connection therewith, and subject to applicable Law and except as otherwise required pursuant to this Agreement, from the date hereof until the Closing, Seller shall: (a) as set forth in Section 5.3 of Use commercially reasonable efforts to preserve the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; Assets and the PDP Business intact; (b) Comply in all material respects with all Laws applicable to the PDP Business; (c) Make no material amendments to the Medicare PDP Contract or CSC Contract or make any material change in the customary terms and conditions upon which it does business with respect to the PDP Business, except for amendments to become effective January 1, 2012 in accordance with Seller’s bid for the 2012 PDP Contract year which amendments have been disclosed to the Purchaser; (d) Duly and timely file, or obtain appropriate extensions of the time for filing, all material Tax Returns, insurance regulatory reports, and other documents required to be filed with any Governmental Authority related to the Assets or the PDP Business; (e) Unless it is contesting the same in good faith and has established reasonable reserves therefor, pay when required to be paid all Taxes indicated by such Tax Returns or otherwise lawfully levied or assessed upon it, or any of its properties or assets, or which it is otherwise legally obligated to pay and withhold or collect, in each case to the extent such Taxes relate to the Assets or the PDP Business, and pay to the proper governmental authorities or hold in separate bank accounts for such payment all Taxes and other assessments which it believes in good faith to be required by Law to be so withheld or collected in connection with the PDP Business; and (f) With respect to matters primarily related to the Assets or the PDP Business, or that would be reasonably expected to subject the Assets or the PDP Business to any liability or obligation, other than as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall will not (i) conduct adopt or propose any change in the Product Business in substantially Seller’s Certificate of Incorporation or By-Laws, (ii) incur any indebtedness for borrowed money that is not repaid prior to the same manner as heretofore conducted and Closing Date other than trade payables incurred in the ordinary course of business business, (iii) acquire any assets or assume any liability from any other Person, except pursuant to contracts or commitments in effect as of the date of this Agreement and identified on the Schedules relating to Article VI or otherwise in the ordinary course consistent with past practice; and , (iiiv) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of any assets or encumber (other than with a Permitted Encumbrance) any property except pursuant to contracts or commitments in effect as of the Purchased Assetsdate of this Agreement and identified on the Schedules relating to Article VI or otherwise in the ordinary course consistent with past practice, (v) make any material change in financial accounting methods, principles or practices of the Seller or the PDP Business, other than in connection with the use of Product Promotional Materials as required by Law or by GAAP, (vi) pledge, encumber or otherwise subject any Assets to a Lien other than mechanics or tradesmans liens in the ordinary course of business consistent with past practice; 5.3.4 business, (avii) terminate, amend settle or modify in compromise any material way, grant a license to, waive any right under, litigation or take any action other disputes (whether or fail not commenced prior to take any action that would result in a breach the date of this Agreement) involving injunctive relief relating to the PDP Business or constitute a default (with viii) authorize or without due notice or lapse of time or both) under commit to do any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9foregoing.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 of Prior to the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”)Date, Seller shall (i) conduct cause the Product Business in substantially the same manner as heretofore conducted and Terminals Companies to be operated in the ordinary course of business consistent with past practicebusiness; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliersprovided, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP andhowever, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, that Seller shall not, and shall not be obligated to cause each of its Affiliates the Terminals Companies to not, take make any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except capital expenditures prior to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, Closing other than Maintenance Capital Expenditures in the ordinary course of business consistent with past practice or with respect to binding orders entered into business. In addition, prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material valueClosing Date, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) as contemplated by this Agreement (including, without limitation, Section 4.8 hereof), Seller shall not permit any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail Terminals Companies to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under do any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” following without the prior written consent of Purchaser; 5.3.5 Purchaser (which shall not be unreasonably withheld): (a) make any change in its authorized capital stock, certificate of incorporation or by-laws; (b) other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels intercompany transactions, pay any stock dividends or make any reclassification with respect to its outstanding stock; (c) issue or sell any shares of its capital stock or securities convertible into or exchangeable for its capital stock; (d) purchase or otherwise acquire for consideration any outstanding shares of its capital stock; (e) other than with respect to (i) the Product maintained at Excluded Companies, (ii) the wholesaleThorofare Terminal and (iii) certain real property fronting on Archxx Xxxnue in Argo, chainIllinois, institutional sell, transfer, convey or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intendedotherwise dispose of, or known toencumber with any Lien (other than Permitted Liens), or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, asset except in the ordinary course of business and consistent with past practice (provided that, other than with respect to the sale or as may transfer of the Thorofare Terminal, the Excluded Companies and the real property located in Argo, Illinois, the cash or other proceeds received shall be required under existing Contracts; 5.3.9 retained in the respective Terminals Company and shall not be distributed to Seller or its Affiliates); (af) adopt or amend in make any material changes in its accounting principles or practices; (g) other than with respect any Seller Benefit Plan to the transfer from Terminals to Rail (or an Affiliate of Rail) of any plan that would be a indebtedness owing to Terminals from TPE or any other Excluded Company, enter into any material transaction with Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of its Affiliates; (h) make any borrowings from parties other than Affiliates or incur any debt or lease financing from parties other than Affiliates (other than borrowings in an aggregate principal amount outstanding at any time not in excess of $15,000,000 and debt or lease financing incurred in the actions described in Section 5.3.8; ordinary course of business and consistent with past practice), or assume, guarantee, endorse (b) enter into except for the negotiation or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any collection of the actions described in Sections 5.3.1 through 5.3.9.negotiable instruments in

Ordinary Course of Business. Except (a) The Sellers, to the extent of their respective powers and authorities as set forth in Section 5.3 directors, managers or shareholders of the Seller Disclosure Schedule Group Companies, undertake to procure that, between the date hereof and the Closing Date, save in so far as agreed upon in writing by the Purchaser or as otherwise contemplated by under the terms of this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall such agreement not to be unreasonably withheld, conditioned withheld or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct will be carried on and the Product Business in substantially the same manner as heretofore conducted and Group Companies will be managed in the ordinary course of business consistent with past practice; and in a prudent and diligent manner (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3en bon père de famille) and other Persons having business relationships with any Material Adverse Change affecting any of the Product Business; Group Companies and (B) prosecute for which the Sellers have Knowledge will be notified promptly in good faith and maintain all writing to the Seller Owned Registered Product IP andPurchaser. Each of the Sellers further procure, to the extent Seller has prosecution rights pursuant to the Seller License Agreementsof their respective powers and/or authority as shareholders, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, directors or that could reasonably be expected to, result in any employees of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing)Group Companies, except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangiblethat, other than in the ordinary course or except with the prior written consent of business the Purchaser: (i) the Group Companies shall not (a) make any change to their articles of association, save for the change of the registered office of the Company and Financière AGZ to be transferred to that of Antargaz on or prior to Closing or (b) agree or vote to make any changes to the articles of association, shareholders’ agreement or internal rules (règlement intérieur) of any Group Subsidiary; (ii) the Group Companies shall not issue share capital or securities (or rights giving rise to any share or securities of the Group Companies) other than to another Group Company; the Company shall not amend the terms and conditions of the BSAs and Financière AGZ shall not exercise the BSAs; (iii) the Company or Financière AGZ shall not decide or pay any dividend or other distribution to their shareholders, except as set forth in Clause 7.2.11; (iv) the Group Companies shall honor in all material respects their commitments and ensure the recovery of amounts that are owed to them and the payment of amounts that they owe in accordance with their previous practice; (v) except as provided in paragraph (viii) below, the Group Companies shall not sell, transfer, distribute, lease or pledge, or agree to sell, transfer, distribute, lease, pledge or permit any Encumbrance on, any of their material property, except inventory, which may be sold, transferred, leased or distributed in the ordinary course consistent with the Group Companies’ past practices, or any of the securities owned by the Group Companies (including those of any Group Company or Group Subsidiary); (vi) the Group Companies shall not change (A) the accounting principles and methods that were used by them during the past three fiscal years or (B) the account numbers associated with the Net Debt, Working Capital and Fixed Asset Supplier Amount, as set forth on Schedule B; (vii) the Group Companies shall not grant any increase in the salary or the benefits that their employees receive, outside those resulting from applicable collective bargaining agreements or in the ordinary course consistent with past practice and shall not modify the collective status of the personnel; (viii) the Group Companies shall not grant to anyone (other than another Group Company) nor accept from anyone (other than another Group Company) a loan, guarantee, support, lien for an amount exceeding in the aggregate 2,000,000 (two million) euros, or more generally take any decision which result in an increase of their financial indebtedness of an amount exceeding in the aggregate 2,000,000 (two million) euros; (ix) the Group Companies shall make capital expenditures for the period between 31st March 2003 and 31st March 2004 not to exceed 25,000,000 (twenty five million) euros in the aggregate consistent with respect to binding orders entered into prior past practices and the Group Companies’ capital expenditure budget as previously communicated to the date of this AgreementPurchaser; 5.3.2 (ix) settle the Group Companies shall not amend or commence alter to a material extent, or assign or terminate any Litigation of the Material Contracts or any of the Financing Documents to a material claim; extent, or (ii) waive any material claims rights under any Material Contracts or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased AssetsFinancing Documents; (xi) the Group Companies shall not acquire, or agree to acquire, by merger, consolidation, contribution, purchase of stock or substantially all of the assets or otherwise any business or company (be it a corporation, partnership, association or other than in connection with business organization); (xii) the use Group Companies shall not dissolve or enter into any plan of Product Promotional Materials liquidation or dissolution or similar proceeding; (xiii) the Group Companies shall not sell or transfer any patent, trade name or trademark (provided that the foregoing shall not restrict any licenses granted in the ordinary course of business consistent with past practicebusiness); 5.3.4 (axiv) terminate, amend the Group Companies shall not transfer or modify in close any material way, grant a license to, waive storage or distribution facility; (xv) the Group Companies shall not settle any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under claim made by any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant Group Companies against a license under third Person or assign any claim against any of the Purchased Contracts Group Companies, when the value of any such claim exceeds 250,000 (two hundred fifty thousand) euros, in particular and irrespective of their individual amount, any tax claim against any of the Group Companies relating to any business tax ( axe professionnelle) reassessment by reason of intangible fixed assets referred to under section 2.1.2 (d) of the guaranty agreement dated February 16, 2001 among EAF, Elf Aquitaine and the Company; (xvi) the Group Companies shall not execute any agreements under conditions that are abnormal, unusual or any Contract granting rights in, to, or under Seller Intellectual Property; or financially excessive; (cxvii) the Group Companies shall not enter into any material Contract relating contract or commitment to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice do or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result engage in any of the actions described foregoing; (xviii) the Group Companies shall comply in Section 5.3.8; or all material respects with all the applicable regulations, orders and decrees of any Governmental Entity including (bwithout limitation to) enter into or adopt any collective bargaining agreement or other Contract with any labor organizationthe applicable labor, union or association relating safety and environmental regulations pertinent to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any conduct of the actions described in Sections 5.3.1 through 5.3.9Business.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 Conduct of the Seller Disclosure Schedule or Business Pending the Closing. From the date hereof through the Closing Date, and except as otherwise contemplated consented to or approved by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from Seller covenants and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall agrees that: (i) Seller will conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business course, diligently and in good faith, consistent with past practice; and practices during the year preceding the date hereof; (ii) Seller will use all commercially reasonable efforts to: to maintain and to keep available for the benefit of Purchaser its business relationships with Members, Merchants, airlines (APage 40 of 252 Pages) preserve the Product Business consultants, customers, sponsors, suppliers and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons others having business relationships with Seller relating to the Product Business; ; (iii) Seller will provide complete and accurate copies by means of electronic transmission of all periodic reports prepared by management in operating the Business including, without limitation, any and all (A) monthly financial forecast packages, (B) prosecute monthly money at risk reports, (C) return on cash investment reports, and (D) market performance reports, in good faith and maintain all the Seller Owned Registered Product IP and, each case only to the extent that it relates to Seller's operation of the Business and in the same format as previously provided to Purchaser; (iv) Seller has prosecution rights pursuant will not enter into any material transactions or make any material commitment relating to the Seller License Agreements, Business or the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing; (v) Except as provided herein, Seller shall notwill not amend, and shall cause each modify, impair, reduce, compromise, cancel, mortgage, pledge, encumber or dispose of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting Assets, the generality of Assigned Contracts or the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, Excluded Contracts other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into business; provided, however, that Seller shall prior to Closing terminate each of the date of this Agreement; 5.3.2 contracts between Seller and the independent contractors listed on Schedule 1.2(i), including, without limitation, the independent sales contracts between Seller and each of: (i) settle or commence any Litigation or material claim; or Riverside Marketing, (ii) waive Universal Biotics Corp., (iii) Card Service International, Inc. and (iv) Bancard Systems, Inc.; and (vi) Seller will not take, or agree to commit to take, or permit any of its Affiliates to take, any action that would make any representation or warranty of Seller contained herein inaccurate (as to any representation or warranty qualified as to materiality) or inaccurate in any material claims respect (as to any representation or rights warranty not so qualified). (Page 41 of material value252 Pages) Subject to clause (v) above, nothing in either case this Section 4.1 or elsewhere in a manner that would constitute an Assumed Liability or otherwise this Agreement shall be materially adverse construed as limiting Seller's ability, and Seller shall be permitted at any time, to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license convey or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Excluded Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9.

Ordinary Course of Business. Except (a) Except as otherwise expressly contemplated by the terms of this Agreement or as set forth in Section 5.3 5.1 of the Seller Disclosure Schedule or as otherwise contemplated by Letter, during the period from the date of this Agreement or any Ancillary Agreement; to the Closing (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the "Pre-Closing Period (clauses (a) – (dPeriod"), the “Ordinary Course of Business Exceptions”Company shall (unless otherwise consented to in writing by the Primary Purchaser), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and its business in the ordinary course of business consistent with past practice; and , (ii) use all commercially reasonable best efforts to: (A) to preserve the Product Business intact its and its Subsidiaries' current business organizations, keep available the services of their current officers, licensors, licensees, advertisers, distributors, governmental authorities and others having business dealings with them to the end that their goodwill and maintain its relations and goodwill with (1) the Key Suppliersongoing businesses shall be unimpaired, Customers and Distributors; (2) material licensors and licensees; and (3iii) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, not take any action that would, could cause any representation or that could reasonably warranty contained in Article III to be expected to, result untrue in any of the conditions set forth material respect or cause a covenant to fail to be satisfied in ARTICLE 7 not being satisfied. In addition any material respect. (and without b) Without limiting the generality of the foregoing), except to during the extent constituting an Ordinary Course Pre-Closing Period, other than as expressly provided in this Agreement or as set forth in Section 5.1 of Business Exceptionthe Disclosure Letter, Seller each of the Company and its Subsidiaries shall not, and shall cause its Affiliates to notwithout the prior written consent of the Primary Purchaser: 5.3.1 (i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of capital stock of the Company or any of its Subsidiaries, (B) split, combine or reclassify capital stock of the Company or any of its Subsidiaries or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company or any of its Subsidiaries, (C) purchase, redeem or otherwise acquire any properties shares of capital stock or assets that constitute Purchased Assets any other securities of the Company or Product Inventoryany of its Subsidiaries, either tangible (D) pay or intangibleset aside a "sinking fund" for the payment of any principal amount of outstanding debt securities of the Company or any of its Subsidiaries, or (E) consummate or enter into an agreement to recapitalize the Company or any of its Subsidiaries; (ii) issue, deliver, sell, transfer, pledge or otherwise encumber or subject to any Lien any shares of capital stock of the Company or any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants, options or calls to acquire, any capital stock of the Company or any of its Subsidiaries; (iii) amend the Certificate of Incorporation, the Bylaws or any similar governing documents of any Subsidiary of the Company; (iv) merge, consolidate or reorganize the Company or any of its Subsidiaries with any other Person; (v) form, join, participate or agree to form, join or participate in the business, operations, sales, distribution, or development of any other Person or contribute assets, employees, cash or customers or other resources to any such arrangement, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreementpractices; 5.3.2 (ivi) settle acquire or commence agree to acquire by merging or consolidating with, or by purchasing assets of, or by any Litigation other manner, any business or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased AssetsPerson, other than in connection with the use of Product Promotional Materials purchases supplies in the ordinary course of business consistent with past practice; 5.3.4 (avii) terminatesell, amend lease, license, mortgage or modify otherwise encumber or subject to any Lien or otherwise dispose of any of significant amount of its properties or assets, otherwise than in the ordinary course of business; (viii) (A) incur any significant amount of Indebtedness or (B) make any loans, advances or capital contributions to, or investments in, any other Person, otherwise than in the ordinary course of business; (ix) make, commit or otherwise agree to make any capital expenditure, or enter into any agreement or agreements providing for capital expenditures which, individually, are in excess of $100,000 or, in the aggregate, are in excess of $300,000; (x) pay, discharge, settle or satisfy any material wayclaims, grant a license toliabilities, waive any right underobligations or litigation (absolute, accrued, asserted or take any action unasserted, contingent or fail to take any action that would result in a breach otherwise), other than the payment, discharge, settlement or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except satisfaction, in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars practices; ($100,000xi) on an annual basis); (b) grant a transfer or license under to any person or assign entity or otherwise extend, amend or modify any rights to the Intellectual Property of the Purchased Contracts Company or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, its Subsidiaries other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaserbusiness; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse(xii) modify, amend, waive alter or materially modify change terms, provisions or rights and obligations of any Seller Authorizationsagreement which is material to the Company and its Subsidiaries taken as a whole; 5.3.7 (axiii) take any action which is intendedor omit to take any action which, individually or known toin the aggregate, or reasonably likely to would have a Material Adverse Effect; or material adverse effect on the Condition of the Company; (bxiv) take any action or omit to take any action which is intended, would reasonably be expected to materially delay or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach materially adversely affect the ability of any of Seller’s covenantsthe parties to obtain any consent, waiver or other approval of any Governmental Authority or other Person required to consummate the transactions contemplated hereby; 5.3.8 grant (xv) amend or modify any Plan or adopt any compensation or benefit agreement, plan or arrangement for the benefit of any employee, director, consultant or stockholder of the Company and its Subsidiaries or increase the compensation payable to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contractssuch individual; 5.3.9 (axvi) adopt a shareholder rights plan or amend in any material respect any Seller Benefit Plan similar plan or agreement; (xvii) (A) effect a voluntary liquidation, dissolution or winding up of the Company or any plan that would be a Seller Benefit Plan if adoptedof its Subsidiaries, or (B) voluntarily file for bankruptcy, or otherwise seek protection under any federal or state bankruptcy or similar law; or (xviii) authorize, or commit or agree to the extent such adoption or amendment would result in take, any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9foregoing actions.

Ordinary Course of Business. Except (a) During the period from the date of this Agreement to the Closing Date, except as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise specifically contemplated by this Agreement or any Ancillary Agreement; (b) as required otherwise consented to in writing by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writingPurchaser, which consent shall not be unreasonably withheld, conditioned or delayed, from and after Sellers will cause the Execution Date and during the Pre-Closing Period (clauses TARGET Company to: (a) – (d)carry on its business in, and only in, the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable efforts to preserve intact its present business organization, keep available the services of its present officers and employees and preserve its relationships with clients, suppliers, customers, distributors and others having business dealings with it, maintain all assets other than those disposed of in the ordinary course of business consistent with past practice; in good repair and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and condition, maintain its relations books of account and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP records in the Purchased Assets. Prior to the Closingusual, Seller shall notregular and ordinary manner, and shall cause each preserve its good will and ongoing business; (b) promptly advise Purchaser in writing of any change in its Affiliates to notcondition (financial or otherwise), take any action that wouldproperties, liabilities, operations or that could prospects which is or may reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closingit; 5.3.3 (c) not amend its charter or other organizational documents; (d) not acquire, by merger, consolidation, purchase of shares, stock or assets or otherwise, any corporation, partnership, association or other business organization or division thereof; (e) not alter its outstanding share capital or purchase or redeem any shares of its capital stock, (f) not issue or sell (or agree to issue or sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of its share capital or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares; (g) not incur any indebtedness for borrowed money (including through the Purchased Assetsissuance of debt securities) or vary the terms of any existing indebtedness without Purchaser's prior written consent; (h) not mortgage, pledge or subject to any Lien except for Permitted Exceptions, any of its properties; (i) not discharge or satisfy any material Lien or pay or satisfy any material obligation or Liability (fixed or contingent) or compromise, settle or otherwise adjust any material claim or litigation; (j) not acquire or dispose of any assets other than cash in connection with the use repayment of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” debt without the prior written consent of Purchaser; 5.3.5 other than (k) not make any change in the ordinary course of business consistent with past practice its accounting procedures or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levelspractices; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (al) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 not grant to any Product Business Employee officer, director, consultant or employee any increase in or modification of compensation or benefitsbenefits (except as required by law), except in the ordinary course of business and consistent or any severance or termination pay, or make any loan to or enter into any employment agreement or arrangement with past practice or as may be required under existing Contracts;any such person, 5.3.9 (am) adopt or not adopt, enter into, amend in any material respect respect, announce any Seller Benefit intention to adopt or terminate, any Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with employee benefit plan, program or arrangement; (n) not make an investment, any labor organization, union capital expenditure or association relating to otherwise acquire any asset (directly or affecting the Product Business Employeesindirectly) except for bananas and plantains without Purchaser's prior written consent; orand 5.3.10 agree, commit or offer (in writing or otherwiseo) not agree to take any of the actions described set forth in Sections 5.3.1 the foregoing subparagraphs (c) through 5.3.9(n).

Ordinary Course of Business. Except (a) as set forth in Section 5.3 of From the Seller Disclosure Schedule or as date hereof until the Closing Date, unless otherwise contemplated agreed to by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d)Purchaser, the “Ordinary Course of Business Exceptions”)Company shall, and each Seller agrees that it shall cause the Company to, (i) conduct the Product Business Company's business and operations in the ordinary course and in substantially the same manner as in which the same have heretofore conducted and in the ordinary course of business consistent with past practice; and been conducted, (ii) to preserve intact the business organization of the Company, and (iii) use all commercially its reasonable best efforts to: (A) preserve to keep available the Product Business services of the present officers, employees, consultants and its goodwill agents of the Company and maintain its relations the present suppliers and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any customers of the conditions set forth in ARTICLE 7 not being satisfiedCompany and preserve their goodwill. In addition (and without Without limiting the generality of the foregoing, except as contemplated by this Agreement (including, but not limited to, Section 3.24), except during the period from the date of this Agreement to the extent constituting an Ordinary Course Closing Date, without the prior written consent of Business Exceptionthe Purchaser, Seller the Company shall not, and the Sellers shall cause its Affiliates to notthe Company not to: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory(a) sell, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 selllease, transfer, leasemortgage, license encumber or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material wayproperties or assets, grant a license toreal, waive any right under, personal or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts mixed (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business and consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser); 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intendedincrease the rate of compensation of, or known pay or agree to pay any benefit to, officers or reasonably likely to render any employees of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefitsthe Company, except in the ordinary course of business and consistent with past practice or as may be required under by any existing Contractsplan, agreement or arrangement, including, without limitation, any Plan; 5.3.9 (ac) except for the compensation (other than bonuses) to be paid to Xxxx Xxxxx pursuant to his employment agreement with the Company and amounts or benefits to be provided under the Xxxxxxxxx Xxxxx Support Agreement, declare or make any distributions to any Seller, whether in the form of dividend payments, bonus compensation or otherwise; (d) enter into, adopt or amend any Plan, or employment or severance agreement relating to the Company, except in the ordinary course of business and consistent with past practice or as required by law, government regulation or court order; (e) create or incur any indebtedness or liability other than in the ordinary course of business and consistent with past practice, or guarantee any debt or other liability of any other Person; (f) alter the procedures of the Company regarding the collection of Accounts Receivable or the payment of accounts or otherwise pay accounts payable of the Company other than when due except in the ordinary course of business and consistent with past practice; (g) make any change, other than in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures of the Company; (h) make any commitments for, make or authorize any capital expenditures (other than direct purchases under contracts or subcontracts) relating to the Company other than in amounts less than $20,000 individually and $100,000 in the aggregate; (i) settle, compromise, waive, release or assign any material respect rights or claims whether concerning, affecting or relating to any Seller Benefit Plan property, asset, Contract or otherwise to the Company; (j) terminate or, other than in the ordinary course of business and consistent with past practice, materially amend or modify any Contract listed, or required to be listed, on Schedule 2.1(O) hereof; (k) terminate, amend or modify the Amended Contingent Stock Agreement or any plan Retention Agreement; (l) undertake any action that would be a Seller Benefit Plan if adoptedcause the representations set forth in Section 2.1(F) to the extent such adoption become untrue or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employeesincorrect; or 5.3.10 (m) agree, commit directly or offer (indirectly, whether in writing or otherwise) , to take do any of the actions described foregoing. Notwithstanding the foregoing provisions of this Section 3.7, the Company shall, and each Seller agrees that it shall cause the Company, to transfer to the Sellers prior to the Closing Date (i) the life insurance policy for which Xxxx Xxxxx is the named insured and Xxxxx Xxxxx is the named beneficiary, (ii) the life insurance policy for which Xxxxxxxxx Xxxxx is the named insured and Xxxx Xxxxx is the named beneficiary, (iii) the Avenel Golf Club membership, and (iv) all of the Company's interest in Sections 5.3.1 through 5.3.9Spectrum Health.

Ordinary Course of Business. Except 6.2.1 During the period from the date of this Agreement to the Closing, except as may be (av) as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise specifically contemplated by this Agreement or any Ancillary Agreement; necessary or advisable to implement the transactions contemplated herein (bincluding the Pre-Closing Reorganizations), (w) as disclosed in Annex ‎6.2.1 TC "Annex ‎6. 2.1 Ordinary Course of Business" \f \l 2 , (x) required by a contractual obligation existing on the Put Option Date, provided it was adequately disclosed in the Data Room (y) immediately required by applicable Law; (c) for any actions as expressly contemplated mandatory Law or immediately requested by this Agreement; a mandatory Governmental Authority, or (dz) as consented to in writing by the Purchaser shall otherwise consent in writing, (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned, from and after having due consideration for the Execution Date and during interests, as applicable, of the Pre-Closing Period (clauses (a) – (dAcquired Companies), each of the “Ordinary Course Sellers shall, within the limits of its powers as a shareholder, director, officer or employee of the relevant Acquired Company, use its reasonable endeavors to ensure that each of the Acquired Companies maintains the value of its material assets and the relationships of the Business Exceptions”), Seller shall (i) conduct the Product Business taken as a whole in substantially the same manner as heretofore conducted all material respects and carries on its business only in the ordinary course of business consistent with past practice; practices, and does not take any of the following actions: (i) amending its Organizational Documents in any material respect which would be detrimental to the Purchaser or the consummation of the transactions contemplated herein, other than to comply with applicable Laws; (ii) use all commercially reasonable efforts to: acquiring or selling, by merger, spin-off, consolidation, purchase or sale of shares or assets or otherwise, any Entity or business other than the disposal of the Carve-out Companies pursuant to the terms set forth in this Agreement or granting any Encumbrance on any such Entity or business, except for in each case, intercompany transactions or build-up acquisitions disclosed in the Disclosed Information; (Aiii) preserve the Product Business and altering its goodwill and maintain issued share capital or declaring, setting aside, making or paying any dividend or other distribution in respect of its relations and goodwill with share capital (1) the Key Suppliersin cash or otherwise), Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute or purchasing or redeeming any shares in good faith and maintain all the Seller Owned Registered Product IP andits share capital, except for in each case, to the extent Seller has prosecution benefit of another Acquired Company; (iv) issuing or selling any shares in its share capital or any options, warrants or other rights pursuant to purchase any such shares or any securities convertible into or exchangeable for such shares, except for in each case, to the Seller License Agreements, benefit of another Acquired Company; (v) provided that there are fully covered under the Seller Licensed Registered Product IP in the Purchased Assets. Prior Debt Release Letters and without any pre-payment obligation to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing)Group Companies, except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber incurring (other than with a Permitted Encumbrance) any of under the Purchased AssetsDebt Release Letters, other than in connection with as the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basiscase may be); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, any material indebtedness for borrowed money (including through the issuance of debt securities), except for (x) indebtedness to another Acquired Company, (y) any drawing under the Existing Financing and (z) increase of the bank guarantee program in place with the Group; (vi) change the payment procedures on accounts payable and accounts receivable (in particular any acceleration on accounts receivable and any deferred payment of accounts payable) and increase or decrease the volume of inventory, in each case on a Group Company level and throughout the Group Companies, unless consistent with past practice and in compliance with the duty of care of a prudent business man; (vii) enter into, terminate or materially modify any of the agreements set out in Annex ‎6.2.1(vii) TC "Annex ‎6.2.1‎(vii) Seller's Agreements" \f \l 2 ; (viii) offer or make any bonus or similar payments to any third party triggered by the consummation or any other event provided for under this Agreement; (ix) hire any director, officer or, other than in the ordinary course of business and in line with the business plan and budget, employee; (x) terminate any director, officer or employee of a Group Company with a fixed remuneration equal to or higher than EUR 150,000; (xi) dispose of or limit any intellectual property rights owned by any of the Group Companies that notwithstanding anything herein are material to the contraryBusiness or terminate, no Contract subject amend or otherwise change any right to this Section 5.3.4 entered use any third party intellectual property rights used by any of the Group Companies that are material to the Business, other than in the ordinary course of business; (xii) making any change in its accounting procedures or practices unless mandated by Law or the accounting principles generally accepted in its jurisdiction of incorporation or residence; (xiii) enter into by Seller during the Pre-Closing Period any related party transactions (other than the binding purchase orders for Product any bona fide business transactions entered into in the ordinary course of business consistent and on market terms with past practice any portfolio company of TecFin's ultimate shareholder or any fund(s) managed or advised by PXX Partner S.à r.x.); (xiv) terminate (whether unilaterally, by consent or by settlement), amend or change the service and/or employment agreements between the respective Group Company and any of Cxxxxxxxx Xxxxx, Xxxx Xxxxxx, Rxxxxxx Xxxx and/or Fxxxxxxxx Xxxxxxx; or (xv) committing to take any of the actions set forth on in the foregoing subsections (i) through ‎(xiii). For the purposes of granting any consents which may be requested by the Sellers' Agent or an Acquired Company pursuant to this Section 5.3.4 ‎6.2.1, the Purchaser hereby designates Wxxxxxxx Xxxxx with immediate effect and represents and warrants to, and agrees with, the Sellers' Agent and each of the Seller Disclosure Schedule, which Sellers that Wxxxxxxx Xxxxx shall have full capacity and right to give any such schedule shall be delivered to consents on behalf of the Purchaser at least until the Closing Date. Within five (5) Business Days prior of receipt of any request for consent by the Sellers' Agent or an Acquired Company, the Purchaser shall have the right to Closingnotify the Sellers' Agent or the relevant Acquired Company that it objects to the proposed action (which notice of objection shall indicate its reasons for so objecting). If the Purchaser shall not have notified the Sellers' Agent or the relevant Acquired Company, as the case may be, of its objection to a proposed action within such period of five (5) Business Days, the Purchaser shall be added deemed to have consented to such proposed action. As an exception to Section 2.1.1(a) ‎10.11, any notice to be made for the purpose of obtaining or giving any consent of the Seller Disclosure Schedule Purchaser under this Section ‎6.2.1 shall be given by e-mail only (without confirmation). 6.2.2 Nothing herein shall operate to restrict or prevent: (i) any commercially reasonable action undertaken by any Acquired Company in an emergency or disaster situation with the intention of minimizing any adverse effect thereof; or (ii) any commercially reasonable action taken as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition response to the formulation of the Second Generation Productany Pandemic Measure, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 which (i) is reasonably necessary (a) take any action which is intendedto protect the health, safety and welfare of the directors, officers or known toemployees of the Acquired Companies and other individuals having business dealing with the Acquired Companies, or reasonably likely to have a Material Adverse Effect; or (b) take to respond to third party supply or omit service disruptions caused by COVID-19 or (ii) is consistent with actions taken or contemplated by other businesses or enterprises of similar size of the Group Companies operating in the same or substantially similar industry and a similar geographic presence; in each case after consultation with the Purchaser if legally and practically possible. 6.2.3 For the avoidance of doubt, nothing contained in this Agreement is intended to take give the Purchaser, directly or indirectly, the right to control or direct the Acquired Companies prior to the Closing and the Sellers shall not be under any action which is intended, or known to, or reasonably likely obligation to render provide any commercially sensitive information the disclosure of Seller’s representations or warranties untrue or misleading, or which would be likely to result in constitute a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9applicable Law.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 Each member of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent MM Group covenants and agrees that it will, and will cause its direct and indirect subsidiaries to, operate its business and Real Estate holdings in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct and maintain its business and real estate holdings that relate to the Product Business Contributed Interests in substantially the same manner condition as heretofore conducted exists on the date hereof, subject to reasonable wear and in tear, casualty and taking by eminent domain and, subject to the ordinary course remaining provisions of business consistent this Section 4.2.1, will keep available the services of its officers and employees and preserve their relationships with past practice; Tenants, customers, suppliers, managers and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons others having business on-going relationships with the Product Business; Real Property and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, Management Companies to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to end that their goodwill and going business shall be maintained following the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without Without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaserthe Vornado Realty Group, such consent not to be unreasonably withheld or delayed, each member of the MM Group covenants and agrees that it will not do, or agree to do, on or after the date hereof, any of the following with respect to the Contributed Interests or any of the To Be Acquired Companies on or before the Closing: (a) amend its certificate of incorporation or bylaws, or its certificate of limited partnership or partnership agreement, or its certificate of formation or limited liability company agreement, as applicable; 5.3.5 (b) rescind, modify, amend or otherwise change or affect any of the resolutions of the board of directors recommending adoption of this Agreement and authorization of the transactions contemplated hereby; (c) sell, assign, lease (other than with respect to Leases) or otherwise transfer or dispose of any assets, except in the Ordinary Course of Business or in an aggregate amount not in excess of $100,000, unless the same shall be replaced with assets of equal or greater value and utility; (d) issue, sell, transfer, assign, pledge, convey or dispose of any security or equity interest or any security convertible into or exchangeable or exercisable for any security or equity interest, including, without limitation, any subscriptions, options, warrants, calls, conversions or other rights, agreements, commitments, arrangements or understandings of any kind obligating any To Be Acquired Company, as the case may be, contingently or otherwise, to issue or sell, or cause to be issued or sold, any security or equity interest of any To Be Acquired Company, as the case may be, or any security convertible into or exchangeable or exercisable for any such security or equity interest; (e) split, combine or reclassify any shares of any class of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any class of its capital stock, or redeem or otherwise acquire any shares of such capital stock; (f) write off any receivables accrued after December 31, 1997; (i) except (a) in the Ordinary Course of Business consistent with past practice under existing lines of credit and, (b) for inter-company or Affiliated indebtedness to be paid off at or prior to Closing, create, incur or assume any liability, including obligations in respect of capital leases or make or commit to make capital expenditures in excess of $100,000 each or $250,000 in the aggregate, or create, incur, assume, maintain or permit to exist any indebtedness in an aggregate amount greater than $250,000 for members of the MM Group and their respective subsidiaries combined; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for assumptions, guarantees or endorsements by a Management Company of the obligations of MMPI Sub in the Ordinary Course of Business consistent with past practice; (iii) except as set forth in Section 4.2.1(g) of the Disclosure Schedule, make any loans, advances or capital contributions to, or investments in, any other Person (other than customary loans or advances in the Ordinary Course of Business consistent with past practice to employees and extensions of credit made to customers on a trade receivable basis in the Ordinary Course of Business consistent with past practice); or (iv) create, assume or permit to exist any Lien upon their assets, except for those in existence on the date of this Agreement and except for those additional Liens created in the Ordinary Course of Business consistent with past practice which, if they encumber any of the Real Property, constitute Permitted Encumbrances hereunder; (h) except as set forth in Section 4.2 of the Disclosure Schedule or as contemplated by this Agreement, (i) increase or modify or agree to increase or modify the compensation, bonuses or other benefits or perquisites of any employee of MMPI Sub, MMEI or any of their respective direct or indirect subsidiaries, except for salary increases granted in the Ordinary Course of Business or pursuant to employment agreements or arrangements existing on the date hereof, or (ii) pay or commit to pay any compensation, bonus, pension or other benefit not required by the terms of any existing Plan, policy or collective bargaining agreement as in effect on the date hereof or otherwise in the Ordinary Course of Business; (i) fail to use reasonable efforts to maintain their books and records in accordance with GAAP; (j) other than in the ordinary course Ordinary Course of business consistent Business, cancel or materially amend or modify any agreements (other than Leases, which are addressed separately below) with past practice customers or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levelstenants; 5.3.6 terminate(k) enter into any written employment or severance agreements with, cancelany director, permit to lapse, amend, waive officer or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefitsother employees, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result contemplated by any written agreement existing on the date hereof and identified in any Section 2.24(a) of the actions described Disclosure Schedule; (l) establish, adopt, or amend (except as required by law), any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees or terminate in whole or in part or curtail or permanently discontinue contributions to any MMPI Employee Plan; provided, however, nothing herein shall prevent (x) (1) the adoption of a defined benefit plan for the benefit of employees of MMPI Sub whose employment will be transferred to an entity not party to the transactions contemplated by this Agreement (the "Unrelated Entity") and the transfer of assets thereto by the MMPI Sub Pension Plan (as defined in Section 5.3.8; 6.9.2(b) or (b2) the adoption of a defined contribution plan for the benefit of employees of MMPI Sub whose employment will be transferred to an Unrelated Entity and the transfer of account balances or assets thereto by the MMPI Sub Savings Plan), (y) the transfer of the New York Life life insurance plan from MMPI to the Unrelated Entity, and (z) the adoption of any other plans by the Unrelated Entity. (m) enter into or adopt any collective bargaining agreement new agreements (except for Leases and Temporary Space Licenses) with any customers or other Contract third parties with any labor organizationa duration of more than one year unless each such agreement is cancellable by the party hereto (or its subsidiary) upon no more than thirty (30) days' notice, union or association relating to or affecting is entered into in the Product Ordinary Course of Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any and the terms of the actions described in Sections 5.3.1 through 5.3.9such agreement are otherwise commercially reasonable.

Ordinary Course of Business. Except The Company covenants and agrees that, during the period from the Execution Date and continuing until the earlier to occur of the termination of this Agreement or the Closing Time, unless Parent shall otherwise agree in writing or as otherwise expressly contemplated or permitted by this Agreement, the Company shall conduct its business only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practice; to pay its debts and Taxes when due, in the ordinary course in substantially the same manner as previously paid, except for any debts or Taxes which are being contested in good faith by the Company, to pay or perform its other material obligations when due in the ordinary course in substantially the same manner as previously paid or performed, to maintain and keep its assets (including its Intellectual Property Rights), properties and equipment in good repair, working order and condition, in a manner consistent with past practices and in compliance with applicable agreements or contractual obligations, and to use its reasonable best efforts, consistent with past practices and policies, to preserve intact its present business organization and goodwill, and preserve its relationships with officers, employees and others having material business dealings with it. (a) as set forth in Section 5.3 Without limiting the generality of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions foregoing and except as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, during the period from and after the Execution Date and during continuing until the Preearlier to occur of the termination of this Agreement or the Closing Time, without the prior written consent of Parent or as otherwise expressly contemplated by this Agreement or by the Budget 2001, the Company shall not, directly or indirectly: (i) issue, sell, pledge, lease, convey, transfer, assign, license, hypothecate, dispose of, encumber or agree to issue, sell, pledge, lease, convey, transfer, assign, license, hypothecate, dispose of or encumber: (A) any additional securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, the Company (other than pursuant to the exercise of Company Options and convertible securities currently outstanding in accordance with their existing terms); provided, however, that the Company may (x) grant Company Options to such number of newly hired employees and consultants contemplated in the Budget 2001 or to employees and consultants hired not more than six (6) months prior to the Execution Date, in an aggregate amount not to exceed options to purchase 200,000 Company Common Shares and (y) effect transfers of shares of Company Capital Stock by Members as permitted under and pursuant to the terms of this Agreement and the Ancillary Agreements; (B) any Intellectual Property Rights, other than specific-Closing Period (clauses target licenses to antibody-based products granted under current or future codevelopment agreements or licenses granted under current or future material transfer agreements, in each case in such ordinary course of business and as mutually agreed to by Company and Parent, and provided that such agreements and licenses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall not result in (i) conduct more than three targets per licensee, (ii) any transfer of or grant of right to practice any technology, know-how, trade secret or proprietary process or procedures of the Product Business Company and (b) shall be on commercially reasonable terms and do not prejudice Parent's rights under this Agreement; or (C) except in substantially the same manner ordinary course of business, any other material tangible or intangible asset or property of the Company; (ii) amend or authorize to amend its memorandum, articles, by-laws or other Company organizational documents; (iii) alter, destroy, remove or otherwise fail to retain any books and records of the Company; (iv) split, combine or reclassify any outstanding Company Common Shares, Company Class A Shares or Company Class B Shares or declare, set aside or pay any dividends or other distributions payable in cash, stock, property or otherwise with respect to the Company Common Shares, Company Class A Shares or Company Class B Shares; (v) redeem, purchase or offer to purchase any Company Common Shares, Company Class A Shares or Company Class B Shares or other securities of the Company; (vi) reorganize, amalgamate, merge or otherwise continue the Company with any other Person, corporation, partnership or other business organization whatsoever; (vii) commence to undertake an expansion of its business facilities except as heretofore conducted and described in Section 3.1 of the Company Disclosure Schedule; (viii) acquire or agree to acquire (by merger, amalgamation, business combination, arrangement, acquisition of stock or assets or otherwise) any Person, or acquire or agree to acquire any material assets; (ix) guarantee the payment of any indebtedness or incur any indebtedness for money borrowed or issue or sell any non-convertible debt securities other than in accounts receivable incurred in the ordinary course of business or indebtedness incurred in connection with the financing of working capital as contemplated in Budget 2001; (x) except in the usual, ordinary and regular course of business and consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve prepay, satisfy, discharge or settle any claims or liabilities (absolute, accrued, asserted, unasserted, contingent or otherwise) prior to the Product Business and its goodwill and maintain its relations and goodwill with (1) same being due, except such as have been reserved against in the Key Suppliersfinancial statements of the Company, Customers and Distributorswhich are, individually or in the aggregate, material; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP andgrant any waiver, to the extent Seller has prosecution exercise any option or relinquish any contractual rights pursuant to the Seller License Agreementswhich are, the Seller Licensed Registered Product IP individually or in the Purchased Assets. Prior to the Closingaggregate, Seller shall notmaterial; or (C) enter into any interest rate, and shall cause each of its Affiliates to notcurrency or commodity swaps, take xxxxxx or other similar financial instruments; (xi) make any action that wouldloans, advances or capital contributions to, or that could reasonably be expected toinvestments in, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition other Person (and without limiting the generality of the foregoingincluding advances to employees), except that the Company may (x) make routine travel advances to employees in the ordinary course of business, (y) make loans to newly hired employees in connection with their relocation to the extent constituting an Ordinary Course of Business ExceptionVancouver, Seller shall notB.C. area which does not in any single case exceed CDN $10,000 and in the aggregate exceed CDN $40,000, and shall cause (z) invest its Affiliates cash balances in short-term investment grade debt securities in accordance with past practices; (xii) make or rescind any material express or deemed election relating to not: 5.3.1 acquire Taxes, settle or compromise any properties or assets that constitute Purchased Assets or Product Inventorymaterial action relating to Taxes, either tangible or intangible, other than amend any material Tax return except in each case in the ordinary course of business consistent with past practice or as required by law, or except as may be required by applicable law, make any change to any of its accounting methods with respect to binding orders entered into prior Taxes (including its reporting of income or deductions, basis or its write-offs of accounts receivable); (xiii) fail to maintain its existing insurance coverage of all types in effect or, in the event any such coverage shall be terminated or lapse, to the date of this Agreementextent available at reasonable cost, procure substantially similar substitute insurance policies which in all material respects are in at least such amounts and against such risks as are currently covered by such policies; 5.3.2 (ixiv) settle change its methods of accounting as in effect on May 31, 2000 or commence take any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assetsaction, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice reasonable and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except usual actions in the ordinary course of business and consistent with past practice practice, with respect to accounting policies or as may be required under existing Contractsprocedures; 5.3.9 (axv) adopt modify, amend or amend in terminate any of material contracts or waive, release or assign any material respect rights or claims; (xvi) take, or agree to commit to take, any Seller Benefit Plan (or any plan action that would cause the representations and warranties of the Company contained herein, individually or in the aggregate, not to be a Seller Benefit Plan if adoptedtrue, correct and complete in all material respects, such that the condition to closing set forth in Section 2.2(b)(i)(x) would not be satisfied; (xvii) close, shut down, or otherwise eliminate any facility or office; (xviii) make or commit to the extent such adoption make any capital expenditures that exceeds US$25,000 per month, or amendment would result in make any cash disbursement exceeding US$50,000 for any single item or related series of items; (xix) initiate, compromise or settle any material litigation or arbitration proceeding; (xx) enter into an agreement, contract, commitment or arrangement to do any of the actions described in Section 5.3.8; foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing; (bxxi) accelerate the vesting of any unvested stock options; (xxii) enter into or adopt modify (or promise to enter into or modify) any collective bargaining agreement employment or compensation or severance policies or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officers or directors of the Company or modify any Employee Benefit Plan other Contract than pursuant to agreements, policies or arrangements in effect (without amendment) on the Execution Date or and previously disclosed in writing to Parent or as otherwise described in Section 3.1 of the Company Disclosure Schedule; (xxiii) with respect to employees who are not officers or directors, take or promise to take any labor organizationaction other than in the ordinary, union regular and usual course of business and consistent with past practice (none of which actions shall be unreasonable or association relating unusual) with respect to the entering into or affecting modifying of any employment or severance policies or arrangements or with respect to the Product Business Employeesgrant of any bonuses, salary increases, stock options, pension benefits, retirement allowances, deferred compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable otherwise than pursuant to agreements, policies or arrangements in effect (without amendment) on the Execution Date and previously disclosed to Parent; or 5.3.10 agree(xxiv) settle or compromise any claim in excess of Twenty Five Thousand Canadian dollars (CDN$25,000) brought by any present, commit former or offer purported holder of any securities of the Company in connection with the transactions contemplated by this Agreement or any Ancillary Agreements without the prior written consent of Parent. (b) the Company shall: (i) carry out the terms of the Interim Order and the Final Order applicable to it and to comply promptly with all requirements under Applicable Corporate Laws with respect to the transactions contemplated by this Agreement and by the Arrangement; (ii) promptly notify Parent orally and in writing or otherwiseof (A) to take any material adverse change in the Intellectual Property Rights, any Material Adverse Change of the actions described Company and of the Company obtaining knowledge of any material governmental or third party claims, complaints, investigations or hearings (or communications indicating that the same may be threatened), (B) of any event occurring subsequent to the Execution Date that would render any representation or warranty of the Company contained in Sections 5.3.1 through 5.3.9this Agreement, if made on or as of the date of such event or the Closing Date, untrue, incorrect or incomplete in any material respect, and (C) of any breach by the Company of any covenant or agreement contained in this Agreement, such that the conditions to closing set forth herein would not be satisfied; (iii) confer on a regular basis with Parent with respect to operational matters; (iv) give notice to Parent with respect to any debt or Taxes which are being contested in good faith by the Company; (v) maintain a cash balance of at least Five Million Canadian dollars (CDN$5,000,000); and (vi) perform all obligations required to be performed by the Company under this Agreement, co-operate with Parent in connection therewith, and do all such other acts and things as may be necessary in order to consummate and make effective, as soon as reasonably practicable, the transactions contemplated in this Agreement and, without limiting the generality of the foregoing, the Company shall: (A) use its reasonable best efforts to obtain the approvals of holders of the Company Capital Stock, Company Options and Company Convertible Debenture to the Arrangement; (B) apply for and use its reasonable best efforts to obtain all Applicable Regulatory Approvals relating to the Company and, in doing so, to keep Parent reasonably informed as to the status of the proceedings related to obtaining the Applicable Regulatory Approvals; (C) apply for and use its reasonable best efforts to obtain the Interim Order and the Final Order prior to December 1, 2000; (D) use its reasonable best efforts to cause the Company to cease to be a reporting company under the BC Act on or prior to December 1, 2000; (E) defend all lawsuits or other legal, regulatory or other proceedings challenging or affecting this Agreement, any Ancillary Agreement or the consummation of the transactions contemplated hereby, including the Arrangement; (F) use its reasonable best efforts to have lifted or rescinded any injunction or restraining order or other order which may adversely affect the ability of the parties to consummate the transactions contemplated hereby; (G) effect all necessary registrations, filings and submissions of information required by Governmental Entities from the Company; and (H) use its reasonable best efforts to obtain the Company Consents and Waivers and promptly inform Parent if any such waiver, consent or approval cannot be obtained.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 of the on Schedule 3.13, since December 31, 2003, each Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of has conducted its Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with such Seller’s past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Supplierspractices, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing, since such date: (a) each Seller has not suffered any Material Adverse Effect; (b) there has been no destruction or loss of or to any of the Acquired Assets, whether or not covered by insurance, or any deterioration in the condition of the Acquired Assets, except in each case, as would not reasonably be likely, in the aggregate, to have a Material Adverse Effect on Sellers other than charge-offs of receivables in the ordinary course of business; (c) there has been no sale, transfer or other disposition of any material assets, other than in the ordinary course of Business consistent with such Seller’s past practices; (d) the books, accounts and records of Seller have been maintained in the usual, regular and ordinary manner in accordance with GAAP; (e) there has been no labor dispute, organizational effort by any union, unfair labor practice charge or employment discrimination charge, nor institution or threatened institution of any effort, complaint or other proceeding in connection therewith, involving such Seller; (f) there has been no amendment, termination or waiver of any right of Seller under any contract or agreement material to Sellers or under any governmental license, permit or authorization, other than in the ordinary course of Business consistent with such Seller’s past practices; (g) there has been no: (i) increase in the compensation, distribution or in the rate of compensation, distribution or commissions payable or to become payable by Sellers to any “Employees” (as defined in Section 3.21(a)), salesman, independent contractors or agents of Sellers, other than in the ordinary course of Business consistent with such Seller’s past practices; (ii) increase in any payment of or commitment to pay any distribution, bonus, profit sharing or other extraordinary compensation to any Employee, salesman, independent contractor or agent of Seller, other than in the ordinary course of Business consistent with such Seller’s past practices; or (iii) grant or commitment to grant any increase in or right to severance or termination pay or any other compensation, distribution or benefits payable to any Employee upon a change of control of any Seller; provided, however, this provision does not apply to any “Excluded Employees” (as defined in Section 9.5(a)); (h) as of the date of this Agreement, there has been no change in any law or regulation applicable to Seller in any jurisdiction in which any Seller conducts its Business, except as would not, in the aggregate, have a Material Adverse Effect; (i) there has been no Lien created on or in any of the Acquired Assets or assumed by Seller with respect to any of the Acquired Assets, other than in the ordinary course of Business consistent with such Seller’s past practices; (j) there has been no creation of, amendment to or contributions, grants, payments or accruals for or to the extent constituting an Ordinary Course credit of Business Exceptionany employee of Sellers with respect to any bonus, Seller shall notincentive compensation, and shall cause its Affiliates to not: 5.3.1 acquire deferred compensation, profit sharing, retirement, pension, group insurance or other benefit plan, or any properties union, employment or assets that constitute Purchased Assets consulting agreement or Product Inventory, either tangible or intangiblearrangement, other than in the ordinary course of business consistent with such Seller’s past practice or with respect practices; and (k) Sellers have neither made nor committed to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence make any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Businesscapital expenditures, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9contemplated by this Agreement.

Ordinary Course of Business. Except 4.2.1 During the Pre-Closing Period, except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule 4.2 or as otherwise contemplated by this Agreement or any Ancillary Agreement; , (b) as required by applicable Law; Law (including the Consent Orders), (c) as required by the terms of the Bison Acquisition Agreement (to the extent not resulting in any adverse impact on the Purchased Assets or Assumed Liabilities) that is available to Buyer, (d) for any actions as expressly taken by Seller that are reasonably necessary to consummate the transactions contemplated by this Agreement; Agreement or any Ancillary Agreement or the Bison Acquisition Agreement (to the extent not resulting in any adverse impact on the Purchased Assets or Assumed Liabilities), or (de) as Purchaser Buyer shall otherwise consent in writing, writing (which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), (x) Seller shall, and shall cause the “Ordinary Course of Business Exceptions”)other Divesting Entities to, Seller shall (i) use its and their respective reasonable best efforts to conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course course, including with respect to the maintenance of business consistent manufacturing facilities and relationships with past practice; suppliers, customers and distributors of the Product Business (provided that no action taken or not taken by the Divesting Entities in order to comply with any of clauses (i) through (xi) below shall be deemed a breach of this clause (x)) and (y) not take any of the following actions in respect of the Products or Product Business, as applicable: (i) acquire (by merger, exchange, consolidation, purchase of stock, shares, assets or otherwise) any Person or asset, other than any acquisition which is not reasonably expected to impair in any material respect the operating cash flows of the Product Business; (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (any material Purchased Assets other than with a Permitted Encumbrance(A) any pursuant to existing Contracts disclosed to Buyer or (B) assets at the end of the Purchased Assets, other than in connection with the use their useful lives or out of Product Promotional Materials redundancy or (C) sales of inventory in the ordinary course of business consistent with past practicebusiness; 5.3.4 (aiii) subject any Purchased Assets to any Encumbrance, other than a Permitted Encumbrance; (iv) (A) amend, terminate, amend assign or modify in waive any material wayprovision under any Purchased Contract or (B) enter into any Contract that would be a Purchased Contract and that has a contract value of more than $100,000; (v) abandon, grant a license to, waive any right under, or take any action or fail to take maintain or assign any action Purchased Intellectual Property; (vi) waive, release, assign, settle or compromise any material Litigation relating to the Purchased Assets or the Assumed Liabilities; (vii) enter into any Contract with respect to the Product Business that would result in a breach limit or constitute a default (with restrict Buyer or without due notice or lapse of time or both) under any its Affiliates, as owners of the Purchased Contracts Assets following the Closing, from engaging in any business in any geographic area; (except viii) intentionally or recklessly damage, destroy or permit any loss of any material Purchased Asset; ​ ​ ​ (ix) waive, release or assign any material rights or claims of any Purchased Asset held by a Divesting Entity; (x) increase sales of the Products to such customers in a manner inconsistent with the ordinary course of business or past practices that constitutes “trade loading” or similar sales activities that would reasonably be expected to, through an over-supply of such Products to customers, materially reduce sales of the Products to customers after the Closing, taking into account any general fluctuations of commercial and market circumstances (it being understood that ordinary course price adjustments and promotional activities generally result in fluctuations in levels of sales and inventory levels and, provided they are consistent with past practice for Purchased Contracts requiring payment practices, would not constitute a breach of less than One Hundred Thousand Dollars ($100,000) on an annual basisthis Section 4.2.1(x)); or (bxi) grant a license under commit to agree or assign take, or enter into any Contract to do any of the Purchased Contracts foregoing. 4.2.2 Nothing contained in this Agreement is intended to give Buyer or any Contract granting rights inits Affiliates, todirectly or indirectly, the right to control or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting direct the Product Business Employees; or 5.3.10 agreeprior to the Closing, commit and nothing contained in this Agreement is intended to give Seller or offer (in writing its Affiliates, directly or otherwise) indirectly, the right to take any control or direct Buyer’s operations. Prior to the Closing, each of Buyer, on the actions described in Sections 5.3.1 through 5.3.9one hand, and Seller, on the other hand, shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Affiliates’ respective operations.

Ordinary Course of Business. Except (a) During the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; as set forth on Schedule 6.1 or as otherwise consented to in writing by Purchasers (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not unreasonably be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses ): (a) – (d)DMFC will use all reasonable efforts, the “Ordinary Course of Business Exceptions”)and will cause its Subsidiaries to use all reasonable efforts, Seller shall to (i) conduct carry on its business in the Product Business ordinary course in substantially the same manner as heretofore conducted consistent with such business and with its "go-to-market" strategy, (ii) preserve intact its present business organization, (iii) keep available the services of its present officers and employees, (iv) preserve its relationships with clients, suppliers, customers, distributors and others having business dealings with it, (v) maintain all Assets other than those disposed of in the ordinary course of business consistent with past practicein all material respects in good repair and condition and (vi) maintain all insurance; and (b) Except as expressly provided for in Article II hereof, DMFC will, and will cause its Subsidiaries to: (i) not amend its Articles of Incorporation or By-laws or other governing document or agreement; (ii) use not acquire by merging or consolidating with, or purchasing all commercially reasonable efforts to: or substantially all of the assets of, or otherwise acquiring any business of any corporation, partnership, association or other business organization or division thereof, in each case for consideration having a value in excess of $1,000,000; (Aiii) preserve not split, combine or reclassify its outstanding capital stock or declare, set aside, make or pay any dividend or other distribution in respect of the Product Business and its goodwill and maintain its relations and goodwill with capital stock of any member of the Del Monte Group (1in cash or otherwise), except dividends in kind in respect of the Preferred Stock; (iv) the Key Suppliers, Customers and Distributors; not issue or sell (2or agree to issue or sell) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each any shares of its Affiliates to not, take capital stock of any action that wouldclass or series, or that could reasonably be expected toany options, result in warrants, conversion or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares, or grant, or agree to grant, any such options or modify or alter the terms of any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreementabove; 5.3.2 (iv) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Businessnot, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein (A) incur any indebtedness for borrowed money or vary the material terms of any existing debt securities, (B) issue or sell any debt securities, (C) acquire any substantial assets outside of the ordinary course of business, (D) except to the contraryextent required by applicable Law, no Contract subject to this Section 5.3.4 entered into by Seller during make any change in any investment, accounting, financial reporting, inventory, credit, allowance or tax practice or policy or (E) enter into, modify in any material respect or terminate any Material Contract; (vi) not sell, mortgage, pledge or otherwise dispose of any Assets or Properties, except for the Pre-Closing Period (sale of inventory and disposition of obsolete equipment, other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past prior practice and set forth on Section 5.3.4 following prior notice to and consultation with Purchasers; (vii) not grant to any director, or, except in the ordinary course of business consistent with prior practice, consultant, officer, employee or agent of any member of the Seller Disclosure ScheduleDel Monte Group, which any increase in compensation in any form, or any severance or termination pay, or make any loan to any such person, except in each case as may be legally required pursuant to any existing employment or termination agreements, Plan or applicable Laws; (viii) not adopt, enter into, amend in any material respect, terminate or announce any intention to adopt, amend or terminate, any Plan, except as required by applicable Law or as disclosed on any disclosure schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added pursuant to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser4.15; 5.3.5 other than (ix) not discharge or satisfy any material Lien or pay or satisfy any material obligation or Liability or compromise, settle or otherwise adjust any material claim or litigation, except in the ordinary course of business consistent with past practice or commence any voluntary petition, proceeding or action under any bankruptcy, insolvency or other similar laws; (x) not make or institute any material change in its accounting procedures or practices unless mandated by GAAP; (xi) not perform any act, or attempt to do any act, or knowingly permit any act or omission to act, which will cause a breach of any Material Contract; (xii) not make any Tax election or settle or compromise any material federal, state, local or foreign income Tax Liability, other than in the transition ordinary course of business consistent with prior practice and following prior notice to and consultation with Purchasers; (xiii) not (in a manner that deviates from their historical practice) (a) delay payment of any material account payable or other material liability, (b) offset any material account payable or material Liability to a person against any account receivable or payment due from such person, (c) accelerate the collection of accounts receivable, (d) accelerate the sale or liquidation of any inventory, or (e) delay the making of scheduled capital expenditures (including, without limitation, the capital expenditures identified in Schedule 4.13(a) to the formulation extent legally required); (xiv) not make capital expenditures or commitments for additions to property, plant or equipment constituting capital assets in an amount which exceeds $100,000 individually or $1,000,000 in the aggregate during the period from the date of this Agreement to the Closing Date, except for capital expenditures included in DMFC's 1997 capital expenditure plan (a copy of which is attached hereto as Schedule 6.1(b)(xiv)), which capital expenditures the Del Monte Group shall make in accordance with such plan; (xv) not decrease any reserve (including any valuation allowance) for Taxes or other Liabilities on the books of any member of the Second Generation ProductDel Monte Group or otherwise provided therefor, materially alter its activities except for Taxes or other Liabilities relating to the operations of the Del Monte Group since the date of this Agreement and practices except in the ordinary course of business consistent with past practices; (xvi) not sell, assign, transfer, license or permit to lapse any right with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levelsmaterial United States Intellectual Property Rights; 5.3.6 terminate(xvii) not make any loan, cancelor redeem or purchase any of its capital stock, permit transfer any asset or pay any commission, salary or bonus, or pay any rent, commission or fee, or enter into or agree to lapseenter into any transaction, amendto, waive with or materially modify for the benefit of any Seller Authorizationsshareholder or any relative or Affiliate of any shareholder other than the transactions contemplated by this Agreement or pursuant to the agreements listed on Schedule 4.21; 5.3.7 (axviii) take not write off any action which is intendedaccount receivable or other indebtedness as uncollectible in an amount in excess of existing reserves, or known to, establish any extraordinary reserve or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take decrease any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefitsexisting reserve, except in the ordinary course of business and consistent with past practice practices; or (xix) not authorize or as may be required under existing Contracts; 5.3.9 (a) adopt propose, or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) agree to the extent such adoption or amendment would result in take, any of the actions described set forth in Section 5.3.8; or the foregoing subparagraphs (bi) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer through (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9xviii).

Ordinary Course of Business. Except 4.2.1 During the Pre-Closing Period, except (a) as set forth in Section 5.3 4.2 of the Seller Disclosure Schedule or as otherwise expressly contemplated by this Agreement or any Ancillary Agreement; , (b) as required by applicable Law; , or (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from Seller shall cause its business and after operations related to the Execution Date Specified Programs and during the Transferred Assets to operate in the Ordinary Course of Business. 4.2.2 During the Pre-Closing Period Period, Seller shall give prompt written notice to Purchaser of (a) the occurrence, or failure to occur, of any event that causes any representation or warranty of Seller contained in this Agreement to be untrue in any material respect and (b) any failure of Seller to comply with or satisfy, in any material respect, any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, in each case of the foregoing clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (iib) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in to make the timely satisfaction of any of the conditions set forth in ARTICLE 7 not being satisfiedSection 6 impossible or materially less likely. In addition (and without Without limiting the generality of the foregoing, during the Pre-Closing Period, except (a) as set forth in Section 4.2 of the Seller Disclosure Schedule or as expressly contemplated by this Agreement (including pursuant to Section 4.2.1), except to (b) as required by applicable Law, or (c) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, Seller shall, in the extent constituting an Ordinary Course of Business Exception, Seller shall notBusiness: (a) comply in all material respects with the terms and conditions of the Assumed Contracts; (b) maintain the Transferred Assets in good working order and repair (ordinary wear and tear excepted) consistent with past practice, and shall cause its Affiliates pay all Taxes related to not:the Transferred Assets as and when they become due and payable, except where the validity of any such Tax is being contested in good faith by appropriate proceedings and is reserved on the Financial Statements; 5.3.1 acquire (c) maintain and safeguard Specified Program Inventory in the Ordinary Course of Business; (d) take all actions that will be necessary and appropriate to vest in and render to Purchaser at Closing good and marketable title to all of the Transferred Assets free and clear of all Encumbrances, except Permitted Encumbrances; (e) maintain in effect and good standing all Governmental Authorizations and Regulatory Approvals relating to the Transferred Assets; (f) comply with all Laws applicable to the Transferred Assets; (g) not sell, assign or otherwise transfer or dispose of any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangibleTransferred Assets, other than any Pre-Closing Period SLA pursuant to Section 4.7; (h) not (i) by action or inaction, abandon, terminate, cancel, forfeit, waive or release any material rights of Seller, in the ordinary course of business consistent with past practice whole or in part, with respect to binding orders entered into prior to the date Transferred Assets, ordinary wear and tear excepted, or encumber any of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; the Transferred Assets, other than a Permitted Encumbrance, or (ii) waive settle any material claims dispute or rights threatened dispute with any Governmental Body regarding, arising from or relating to any of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the ClosingTransferred Assets; 5.3.3 sell(i) not amend or terminate any Assumed Contract, transfer, lease, license or otherwise dispose of or encumber (other than with renewals or extensions of such Assumed Contracts in the Ordinary Course of Business; (j) not create, assume or permit to exist any Encumbrance, other than a Permitted Encumbrance) , upon any of the Purchased Transferred Assets, other than in connection ; and (k) not terminate its operations or file a certificate of dissolution with the use Secretary of Product Promotional Materials in State of the ordinary course State of business consistent with past practice; 5.3.4 (a) terminate, amend Delaware or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach prevent or constitute a default (with materially impede or without due notice or lapse of time or both) under any delay the consummation by Seller of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9transactions contemplated hereby.

Ordinary Course of Business. Except (a) a. Until the Closing Date, except as otherwise consented to or approved by Purchaser in writing, and except as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”)SCHEDULE 6.1a, Seller shall shall: (i) conduct operate the Product Business in substantially the same manner as heretofore conducted ordinary course consistent with past practices; (ii) maintain the Tangible Assets of the Business in good repair and condition, ordinary wear and tear excepted, and continue to preserve and protect the Intangible Assets; (iii) comply with all applicable Governmental Rules; (iv) maintain the books and records related to the NMO Unit, the Acquired Assets, the Licensed Intellectual Property and the Business on a basis consistent with prior periods; (v) with respect to the NMO Unit and the Business, perform in all material respects all of its obligations under all Contracts, including License Agreements; (vi) pay the Accounts Payable, rents and Taxes of Seller relating to the NMO Unit in the ordinary course of business consistent with past practice; and the Business; (iivii) use all commercially reasonable efforts to: to (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key SuppliersBusiness, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith keep available to Seller the services of the GTE Former Employees and maintain all employees to be covered by the Seller Owned Registered Product IP Transition Services Agreement, and (C) preserve the goodwill of licensors, suppliers, consultants, customers and others having business relations with the NMO Unit; and (viii) use commercially reasonable efforts, consistent with past practices, to collect the extent Seller has prosecution rights pursuant October 31 Receivables. b. Until the Closing Date, except as otherwise consented to the Seller License Agreementsor approved by Purchaser in writing, the Seller Licensed Registered Product IP and except as set forth in the Purchased Assets. Prior to the ClosingSCHEDULE 6.1b, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire (i) sell, lease, license or otherwise dispose of any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangibleAcquired Assets, other than in the ordinary course of business consistent the Business, grant any right or interest in the Acquired Assets to an affiliate, or create or permit the imposition of any Lien on any of the Acquired Assets, and with past practice respect to Licensed Intellectual Property, sell, lease, license, or otherwise dispose of, or enter into any other Contract with respect to, the Licensed Intellectual Property in a manner which would prevent or interfere with the grant of the license under the Seller License Agreement; (ii) enter into any Contract with respect to the Business with a term greater than one year or obliging Seller to expend (or anticipated to cost Seller) more than Twenty-Five Thousand Dollars ($25,000); (iii) incur, assume, guarantee or otherwise become liable for any indebtedness for borrowed money with respect for the Business or the Acquired Assets; (iv) with respect to the NMO Unit, enter any other line of business; (v) waive any material confidentiality rights pertaining to the Acquired Assets or the Business; or (vi) enter into any joint venture, partnership or other similar arrangement or form any other new material arrangement for the conduct of the Business or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Acquired Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent disclosed in writingSection 5.1.2 of the UXP Disclosure Schedule, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d)period from the date of this Agreement until the Effective Time, the “Ordinary Course of Business Exceptions”), Seller UXP shall (i) in all material respects conduct the Product Business in substantially the same manner as heretofore conducted its operations according to its ordinary and in the ordinary usual course of business and consistent with past practice; , and (ii) UXP shall use all commercially reasonable efforts to: (A) to preserve intact in all material respects the Product Business business organization of UXP, keep available the services of its current officers and its goodwill key employees, and maintain its relations and goodwill with (1) preserve in all material respects the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons good will of those having advantageous business relationships with it; provided that UXP shall not be required to make any payments or enter into or amend any contractual arrangements or understandings to satisfy the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assetsforegoing obligations. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without Without limiting the generality of the foregoing), and except as contemplated by this Agreement or as disclosed in Section 5.1.2 of the UXP Disclosure Schedule, prior to the extent constituting an Ordinary Course of Business ExceptionEffective Time, Seller shall UXP will not, and shall cause its Affiliates to notwithout the prior written consent of Parent: 5.3.1 (i) issue, sell or pledge, or authorize or propose the issuance, sale or pledge of, additional shares of its capital stock or securities convertible into any such shares, or any rights, warrants or options to acquire any properties such shares or assets that constitute Purchased Assets or Product Inventoryother convertible securities, either tangible or intangibleincluding pursuant to the Directors Fee Stock Plan, other than shares of UXP Common Stock issuable pursuant to currently outstanding options or other rights disclosed in Section 3.5 of the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this AgreementUXP Disclosure Schedule; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive purchase or otherwise acquire, or propose to purchase or otherwise acquire, any material claims of its outstanding securities; (iii) declare or rights pay any dividend or distribution on the UXP Common Stock; (iv) except pursuant to agreements or arrangements in effect on the date hereof and disclosed in Section 3.19 of material valuethe UXP Disclosure Schedule, purchase or otherwise acquire any property or asset or group of related properties and assets with a cost in excess of $50,000, in either case in one transaction or a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closingseries of related transactions; 5.3.3 sell(v) except pursuant to agreements or arrangements in effect on the date hereof and disclosed in Section 3.19 of the UXP Disclosure Schedule, transfer, lease, license sell or otherwise dispose of or encumber (other than Permitted Encumbrances) any property or asset or group of related properties and assets with a Permitted Encumbranceprice in excess of $50,000 in one transaction or a series of related transactions; (vi) subject to the rights of the shareholders of UXP under applicable law, adopt any amendments to the Charter Documents of UXP; (vii) (a) increase the compensation of any of its directors, officers or key employees, (b) pay or agree to pay any pension, retirement allowance or other employee benefit to any director, officer or key employee which is not required or permitted by any existing plan, agreement or arrangement disclosed in Section 3.13 or 3.19 of the Purchased AssetsUXP Disclosure Schedule, (c) commit itself to any additional pension, employment, severance, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other than in connection employee benefit plan, agreement or arrangement, or to any employment or consulting agreement with or for the use benefit of Product Promotional Materials any director, officer or key employee, whether past or present, except for insurance policy renewals in the ordinary course of business consistent with past practice; 5.3.4 or (ad) terminate, amend except as required by applicable law or modify as disclosed in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any Section 5.1.2 of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller UXP Disclosure Schedule, which amend any such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaserplan, agreement or arrangement; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (aviii) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice practice, (a) except for borrowings on its credit line with Bank of Oklahoma, N.A. (not to exceed $2.5 million at any time outstanding after the date of this Agreement, excluding any outstanding amounts relating to the Bank of Oklahoma Hedge and any outstanding amounts resulting from the payment of amounts due McDonald Investments, Inc. under the engagement agreement described in Section 3.23.), incur any amount of indebtedness for borrowed money or issue any amount of debt securities or assume, guarantee or endorse the obligations of any other person, other than endorsements of negotiable instruments in the ordinary course of business, or (b) make any loans, advances or capital contributions to, or investments in, any other person (other than customary loans or advances to employees in amounts of less than $500 in the aggregate that are in compliance with the Sarbanes-Oxley Act of 2002 and the regulations promulgated thereunder); (ix) implement or adopt any change in the accounting principles, practices or methods used by UXP, other than as may be required under existing Contractsby generally accepted accounting principles, the Exchange Act or other applicable law or regulation; 5.3.9 (ax) adopt except pursuant to contracts disclosed in Section 3.19 of the UXP Disclosure Schedule that renew automatically, enter into, amend, renew or terminate any Material Contract; (xi) settle any claim, action or proceeding, except for any claim, action or proceeding involving solely money damages which was settled for an amount, individually or in the aggregate for all such settlements, not more than $50,000 and which would not reasonably be expected to establish an adverse precedent or reasonable basis for subsequent settlements or require any change in material business practices; (xii) cause any insurance policy naming it as a beneficiary, loss-payable payee or additional insured to be cancelled or terminated, other than expirations of policies in accordance with their terms; (xiii) make any election with respect to Taxes; provided that UXP shall elect to capitalize intangible drilling costs under Section 59(e) of the Code for 2002; (xiv) make any payment of cash or other consideration to, or make any loan (other than customary advances to employees for expenses) to or on behalf of, or enter into, amend or grant a consent or waiver under, or fail to enforce, any contract with, any person (or family member of such person) (1) that directly or indirectly, controls, or is under common control with, UXP or any of its Affiliates; (2) that serves as a director, officer, employee, partner, member, executor, or trustee of UXP or any of its Affiliates; (3) that has, or is a member of a group having, direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of voting securities or other voting interests representing at least five percent of the outstanding voting power or equity securities or other equity interests representing at least five percent of the outstanding equity interests in UXP or any of its Affiliates; or (4) in which any person (or family member of such person) that falls under (1), (2) or (3) above directly or indirectly holds a material interest or serves as a director, officer, employee, partner, member, executor, or trustee (or in any material respect other similar capacity); (xv) make any Seller Benefit Plan capital expenditures in excess of $50,000 in the aggregate or enter into any agreement contemplating capital expenditures in excess of $50,000; or (xvi) agree or commit to do, or enter into any plan contract regarding, anything that would be precluded by clauses (i) through (xv). Upon receiving any request for a Seller Benefit Plan if adopted) consent under this Section 5.1.2, Parent will promptly consider the request and discuss it with UXP's officers and will advise UXP whether or not Parent consents to the extent such adoption or amendment would result in any proposed action within a reasonable time, taking into account the nature and urgency of the actions proposed action. Parent shall not unreasonably withhold any requested consent, taking into account not only the interests of UXP, but also the effect of the proposed action or omission on Parent's financing commitments described in Section 5.3.8; 4.6 or (b) enter into on its proposed operation of UXP following the Effective Time. All requests for such a consent shall be addressed to and considered by Steven D. Durrett, the President of Parent. Failure of Parent to respoxx xx x xxxxxxx xequest for consent within five Business Days of receipt, or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating sooner if UXP is contractually obligated to or affecting respond in a shorter period of time and notifies Parent of such shorter period at the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any time of the actions described in Sections 5.3.1 through 5.3.9request, shall be deemed consent.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 During the period from the date of this Agreement to the Seller Disclosure Schedule Closing, except to the extent expressly permitted or as otherwise contemplated by this Agreement or any Ancillary Agreement; otherwise expressly consented to in writing by Purchaser, Seller hereby covenants that: (a) Seller shall maintain the corporate status and good standing of the Business and shall maintain and use reasonable efforts to renew all existing Permits; (b) as Seller shall use reasonable efforts to obtain at the earliest practical date any Permits and other approvals required by applicable Law; to consummate legally the transfer of ownership of the Assets and Assumed Liabilities to Purchaser and the other transactions contemplated hereby; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser Seller shall otherwise consent in writingcontinue to operate the Business in, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d)only in, the “Ordinary Course of Business Exceptions”)usual, Seller shall (i) conduct the Product Business regular and ordinary course in substantially the same manner as heretofore conducted and shall use reasonable efforts to preserve intact its present officers and employees and preserve its relationships with suppliers, customers, insurers and others having business dealings with it, with the objective that the goodwill and reputation associated with the Business will be unimpaired at the Closing Date; (d) Seller shall maintain all of the Assets in good repair, order and condition (reasonable wear and use and damage by unavoidable casualty excepted) and shall not amend, waive, release, dispose of or permit to lapse (other than in the ordinary course) any material right relating to the Business or the Assets; (e) Seller shall promptly advise Purchaser of any material change in its financial condition, properties, assets, earnings, Liabilities, business, operations or prospects that is or may reasonably be expected to be materially adverse to the Business; (f) Seller shall not sell, lease or dispose of, or cause to be purchased, sold, leased or disposed of, or make or cause to be made any commitment for the sale, lease or disposition of, any of the Assets other than in the ordinary and usual course of business consistent with past prior practice; and ; (iig) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall notnot (i) incur, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 Business, any indebtedness for borrowed money (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with its existing revolving credit agreement) or vary the use terms of Product Promotional Materials any existing credit arrangement; (ii) fail to pay all premiums on all Insurance Policies or otherwise permit such policies to lapse or fail to give or deliver any notice with respect to any material claims thereunder in a timely manner; (iii) enter into any -20- other transaction material to the business or financial condition of the Business outside of the ordinary course of business consistent with past practicebusiness; or (iv) make or incur any capital expenditure in excess of $1,000 except as provided on SCHEDULE 6.2(G); 5.3.4 (ah) terminateSeller shall confer on a regular basis with representatives of Purchaser to report material operational matters and the general status of ongoing operations of the Business, amend and promptly notify Purchaser upon receipt of notice or modify knowledge of any emergency or other damage not in the ordinary and usual course of business of the Business or any fact which would make any of its representations and warranties contained herein untrue in any material wayrespect; (i) Seller shall provide all information reasonably requested by the Purchaser regarding the assets and liabilities, grant a license tofinancial position, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any profits and losses and prospects of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), The Seller shall (i) conduct carry on its business in the Product Business ordinary course and substantially in substantially the same manner as heretofore conducted carried on by it. In connection therewith, the Seller shall: (a) Preserve the Assets and the Acquired Business intact; (b) Use its best efforts to preserve the goodwill of its relationships with Commercial Members, Providers, DOH, DOI, suppliers, contractors, employees and others having business relations with it related to the Acquired Business; (c) Comply with all regulations and laws applicable to it; (d) Keep in full force and effect insurance coverage with reputable insurers, which in respect of amounts, types and risks insured is that which its management reasonably believes to be adequate, which insurance coverages shall not be less than described on Schedule 8.17; (e) Make no material change in the ordinary course customary terms and conditions upon which it does business with respect to the Acquired Business; (f) Take no action or permit any omission having the effect of business consistent delaying the authorization or scheduling of health care services provided to Commercial Members in a manner inconsistent with past practice; customary industry practices; (g) Duly and (ii) use timely file, or obtain appropriate extensions of the time for filing, all commercially reasonable efforts to: (A) preserve the Product Business material reports, and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) all Tax Returns and other Persons having business relationships documents required to be filed with Governmental Entities. (h) Unless it is contesting the Product Business; and (B) prosecute same in good faith and maintain has established reasonable reserves therefor, pay when required to be paid all the Seller Owned Registered Product IP andTaxes indicated by such Tax Returns or otherwise lawfully levied or assessed upon it, or any of its properties or assets, or which it is otherwise legally obligated to pay and withhold or collect and pay to the extent Seller has prosecution rights pursuant proper governmental authorities or hold in separate bank accounts for such payment all Taxes and other assessments which it believes in good faith to be required by law to be so withheld or collected; (i) Take no action which would adversely affect the Seller License Agreementsability of any party to obtain the Permits or consents of private parties required for the transactions contemplated hereby or which would adversely affect the Seller's ability to perform its covenants and agreements contained herein; and (j) Maintain, in accordance with past practice, its Provider Contracts; credential and re-credential such Providers in accordance with the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any standards of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting National Committee on Quality Assurance; take such steps as may be necessary on Seller's part to maintain the generality adequacy of the foregoing), except provider network for the Acquired Business and the pricing levels currently contemplated by the Provider Contracts; and take such other steps as are necessary in order to render the extent constituting an Ordinary Course representations and warranties of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from Provider Contracts true and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any correct as of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which Effective Time as if made at such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9time.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 Since the date of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after Financial Statements of the Execution Date and during the Pre-Closing Period (clauses (a) – (d)Corporations, the “Ordinary Course of Corporations have carried on the Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assetscourse. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without Without limiting the generality of the foregoing), since the date of the Financial Statements of the Corporations, except as otherwise disclosed herein, the Corporations have continued to incur, pay, satisfy and discharge its obligations and liabilities in the extent constituting an Ordinary Course ordinary course of Business Exception, Seller shall not, its business and shall cause its Affiliates to has not: 5.3.1 acquire (a) written off and/or disposed of any properties of its Inventories or assets that constitute Purchased Assets accrued volume rebates or Product Inventory, either tangible or intangibleadvertising allowances, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreementits business; 5.3.2 (ib) settle sold or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) transferred any of its tangible assets or cancelled or released any debts or claims, except for obsolete items which had a nil value on the Purchased AssetsFinancial Statements or replaced items, other than in connection with the use of Product Promotional Materials or in the ordinary course of business consistent with past practiceits business; 5.3.4 (ac) terminatesold, amend leased, mortgaged, pledged or modify in any material way, grant a license to, waive any right under, otherwise encumbered or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse disposed of time or both) under any of its assets or properties, except for obsolete items which had a nil value on the Purchased Contracts (except Financial Statements or replaced items in the ordinary course of business consistent its business; (d) purchased or agreed to purchase, nor leased or agreed to lease, nor acquired or agreed to acquire any additional assets or property, except as disclosed in this Agreement and except for purchases of materials and supplies for use in the ordinary course of its business; (e) suffered any material damage, destruction or physical loss, whether or not covered by insurance; (f) sold, assigned, transferred, encumbered or granted any rights with past practice for Purchased Contracts requiring payment respect to its trade marks or trade names or other intangible assets; (g) incurred any debt, liability or obligation whatsoever, absolute or contingent, secured or unsecured, other than current liabilities in the ordinary course of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, toits business, or under Seller Intellectual Property; or (c) enter entered into any material transaction or into any Material Contract relating to the Product Businesswhatsoever, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employeesbusiness; or 5.3.10 agree(h) made any change in its accounting principles, commit practices or offer (methods as heretofore applied, including the basis upon which its assets and liabilities are recorded on its books, its earnings and profits and losses are ascertained, or in writing its methods or otherwise) to take any rates of depreciation or amortization except for the treatment of the actions described item formerly noted as a post-closure fund (which is now being noted as "Investment Fund") and except for the treatment of the regional tax accrual which was a current liability (which is now shown as a separate liability and not included in Sections 5.3.1 through 5.3.9the current liabilities).

Ordinary Course of Business. Except 4.2.1 During the Pre-Closing Period, except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; 4.2.1, (b) as required by applicable Law; , (c) COVID-19 Response Actions, (d) as required by the terms of any Contract to which Seller or any of its Affiliates is a party as of the date hereof that has been made available to Buyer, (e) for any actions taken by Seller that are reasonably necessary to consummate the Transactions, (f) as required or expressly contemplated by the terms of this Agreement or any Ancillary Agreement; , or (dg) as Purchaser Buyer shall otherwise consent in writing, which consent consent, solely with respect to clauses (vii), (xi) (xii), (xiii), (xv), and (xvii) below (and, solely with respect to the forgoing clauses, clause (xx)), shall not be unreasonably withheld, conditioned or delayed, from Seller shall, and after the Execution Date and during the Pre-Closing Period shall cause its Affiliates to, (clauses x) use commercially reasonable efforts to (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (iA) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute maintain in good faith and maintain effect all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse Authorizations relating to the Product Business or the Purchased Assets from Subsidiary and after (y) not take any of the following actions (it being understood and agreed that Seller and its Affiliates compliance with this clause (y) shall in no event result in a breach of the preceding clause (x)): (i) adopt or propose any change to the certificate of incorporation or bylaws or equivalent organizational document, as applicable, of the Purchased Subsidiary; (ii) issue, pledge, dispose of, transfer or sell any equity interests, notes, bonds or other securities of the Purchased Subsidiary (or any option, warrant or other right to acquire the same) or redeem any of the equity interests of the Purchased Subsidiary; (iii) declare and pay dividends or make distributions or other transfers by the Purchased Subsidiary, except that the Purchased Subsidiary shall be permitted to declare and pay cash dividends or make cash distributions or other cash transfers (including in connection with any “cash sweep” arrangements with Seller or any of its other Affiliates) to Seller or any of its other Affiliates prior to the Closing; 5.3.3 (iv) permit the Purchased Subsidiary to (A) acquire a business or any significant assets of a business from any other Person or (B) merge or consolidate with any other Person; (v) transfer, sell, assign, lease, license, sub-license, abandon, waive, relinquish, allow to lapse, fail to maintain or otherwise dispose of any Registered IP or other material Purchased Assets, or permit the Purchased Subsidiary to transfer, sell, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any material assets of the Purchased AssetsSubsidiary, in each case, other than in connection with (A) dispositions of assets at the use end of their useful lives or out of redundancy, (B) the abandonment, cancellation or lapse of any such Purchased Intellectual Property at the end of its final, non-extendable term under the rules of the applicable patent or trademark offices or under operation of Law, (C) sales of Product Promotional Materials inventory, and non-exclusive licenses granted, in the ordinary course of business consistent with past practiceor (D) as required or contemplated by Section 2.1.5; 5.3.4 (avi) terminate, amend or modify in subject any material way, grant a license to, waive any right underPurchased Assets, or take any action or fail permit the Purchased Subsidiary to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under subject any of its respective material assets (including the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basisShares); (b) grant a license under or assign , to any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period Encumbrance (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaserany Permitted Encumbrance); 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition (vii) except as to the formulation of extent required by the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach terms of any of Seller’s covenants; 5.3.8 Employee Benefit Plan as in effect on the date hereof, (A) grant or promise to grant to any Product Business Employee any increase in compensation or benefits, except including severance or termination pay, other than in connection with any changes to broad-based benefits (other than severance or termination benefits) that apply uniformly to Business Employees and other similarly situated employees of Seller or its Affiliates and that are not targeted at Business Employees and will not materially increase costs for the Buyer or any of its Affiliates after the Closing, (B) adopt, enter into, establish, terminate or materially amend any Employee Benefit Plan, other than with respect to Employee Benefit Plans in which employees of Seller or its Affiliates (in addition to Business Employees) generally are eligible to participate or with respect to amendments or modifications that apply to service providers of Seller or its Affiliates (in addition to Business Employees) generally, in each case, that are not targeted at Business Employees, (C) hire or promote any Business Employee, or internally transfer or alter duties and responsibilities of any employee such that the employee becomes a Business Employee, in any such case, other than to fill vacancies in the ordinary course of business business, (D) demote or terminate (other than for cause) any Business Employee, or (E) except with respect to Specified Employees, internally transfer or otherwise alter the duties and consistent with past practice or as may responsibilities of any employee such that the employee ceases to be required under existing ContractsBusiness Employee; 5.3.9 (aviii) adopt recognize a labor union or amend similar organization or enter into a collective bargaining agreement or similar agreement with the Purchased Subsidiary, any Business Employee or, to the extent such recognition or agreement would be binding upon Buyer or any of its Affiliates after the Closing, any other service provider to the Product Business; (ix) permit the Purchased Subsidiary to make any loans, advances, guarantees or capital contributions to or investments in any material respect Person, other than in the ordinary course of business; (x) commence any Seller Benefit Plan clinical trial for any Product; (or xi) enter into any plan Contract that would be a Seller Benefit Plan Material Purchased Contract if adoptedin effect on the date hereof or terminate any Material Purchased Contract, or make any material amendment to or waive any material right or remedy under any Material Purchased Contract; (xii) (A) make any material change in the advertising, terms of sale, collection or payment practices of the Product Business that are outside the ordinary course of business, (B) enter into any material business practices, programs or long term allowances with respect to the Product Business not previously used in the ordinary course of business, or (C) engage in the practice of “channel stuffing” with respect to Inventory; (xiii) discharge, settle, compromise, satisfy or consent to any entry of any judgment with respect to, any Litigation (other than a Tax Proceeding) that (A) results in any material restriction on the Purchased Subsidiary, the Product Business or any Product in the Territory or (B) results in a Liability to the extent that such adoption Liability would constitute an Assumed Liability or amendment would a material Liability of the Purchased Subsidiary, taken as a whole; (xiv) adopt a plan of complete or partial liquidation or dissolution, recapitalization or other reorganization affecting the Purchased Assets, the Product Business, the Purchased Subsidiary or any Product; (xv) make any change in any method of financial accounting or auditing practice in respect of the Product Business or the Purchased Subsidiary (including, procedures with respect to revenue recognition, payments of accounts payable and collection of accounts receivable) other than changes required as a result of changes in IFRS or applicable Law; (xvi) with respect to the Purchased Subsidiary, (A) make, change or revoke any material Tax election, (B) amend any material Tax Return, (C) adopt or change any material method of Tax accounting, (D) change any Tax accounting period, (E) settle, compromise, surrender or otherwise abandon any Tax Proceeding in respect of any material Taxes or a material Tax liability, (F) enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar or corresponding provision of state, local, or non-U.S. Law), or (G) request a Tax ruling from any Governmental Authority; (xvii) enter into any material partnership, joint venture or joint development arrangement with one or more Persons relating to the Product Business or any of the actions described Products, other than the entry into arrangements for the distribution or sale of any Product in Section 5.3.8; the ordinary course of business; (xviii) incur, assume or guarantee any indebtedness that would be an Assumed Liability or that would be indebtedness of the Purchased Subsidiary (b) enter into or adopt other than any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting such indebtedness incurred in the Product Business Employeesordinary course of business); or 5.3.10 (xix) agree, commit or offer (in writing or otherwise) , to take any of the actions described foregoing actions. 4.2.2 Notwithstanding Section 10.2, all requests for, and the granting of any, consent under this Section 4.2 may be provided by email, if to Seller, to [***], and if to Buyer, to [***]. 4.2.3 Until the earlier of (a) the end of the Pre-Closing Period and (b) the completion of a separation transaction involving Sandoz, Seller will cause Sandoz not to submit an Abbreviated New Drug Application to the FDA for a generic version of the lifitegrast ophthalmic solution product being sold under the brand name Xiidra®. 4.2.4 Nothing contained in Sections 5.3.1 through 5.3.9this Agreement is intended to give Buyer or its Affiliates, directly or indirectly, the right to control, direct or influence the Product Business or the operations of the Purchased Subsidiary prior to the Closing, and nothing contained in this Agreement is intended to give Seller or its Affiliates, directly or indirectly, the right to control, direct or influence Buyer’s operations. Prior to the Closing, each of Buyer, on the one hand, and Seller and its Affiliates, on the other hand, shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Affiliates respective operations.

Ordinary Course of Business. Except (a) as set forth in Section 5.3 of Prior to the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”)Date, Seller shall --------------------------- cause the Subsidiaries (iother than the Minority Subsidiaries) conduct and Divisions to be operated in the Product Business usual and ordinary course of business in substantially the same manner as heretofore conducted conducted, to pay all debts and Taxes when due (subject to good faith disputes over such debts or Taxes) and to pay or perform all other obligations when due (subject to good faith disputes). Except as otherwise consented to in writing by Purchaser, Seller shall use its commercially reasonable efforts consistent with past practices and policies to (a) preserve intact the assets and properties of the Business, (b) keep available the services of the present officers and key employees of the Business, and (c) preserve relationships with customers, suppliers, distributors, licensors, licensees, and others having dealings with the Business; it being understood that the matters referred to in clauses (a), (b) and (c) above may be adversely affected by the announcement of the transactions contemplated hereby. Seller shall promptly notify Purchaser of any occurrence not in the ordinary course of business consistent with past practice; of the Business, which occurrence could reasonably be expected to have a Material Adverse Effect. In particular, and not by means of limitation, none of the Subsidiaries (excluding the Minority Subsidiaries) shall, except as permitted by this Agreement or as required by applicable Law, (i) issue any shares of, or any securities convertible into any shares of, their respective capital stock or share capital, or any other securities, accept any subscription for shares of their respective capital stock, issue options, warrants or similar instruments granting the right to purchase any shares of their respective capital stock, (ii) use all commercially reasonable efforts declare, pay or set aside for payment, any dividend or other distribution on their respective capital stock or share capital, (iii) directly or indirectly, redeem, purchase or otherwise acquire any shares of their respective capital stock or share capital, (iv) alter, amend or repeal any provision of its articles of incorporation or bylaws or other organic documents, (v) change the number or identity of its directors (other than as a result of the death, retirement or resignation of a director), or (vi) form or acquire any subsidiaries not existing as of the date of this Agreement. In addition, and not in limitation of the foregoing, between the date hereof and the Closing Date, Seller shall cause WWTI (with respect to the Business) and Subsidiaries (other than the Minority Subsidiaries) to: : (A) preserve the Product Business and its goodwill and maintain its relations the corporate existence of Seller, WWTI and goodwill with the Subsidiaries (1) other than the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3Minority Subsidiaries) and other Persons having business relationships with the Product Business; all rights, privileges and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP franchises reasonably necessary or desirable in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any normal conduct of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing)Business, except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire contemplated by any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of transactions permitted by this Agreement; 5.3.2 (iB) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts not (except in the ordinary course of business) purchase any assets or stock of any corporation, partnership, association or other business consistent with past practice organization or entity or any division thereof for Purchased Contracts requiring payment use in the Business or by the Subsidiaries (other than the Minority Subsidiaries), nor agree to do so; (C) not sell, lease, assign, transfer or otherwise dispose of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights inassets of the Business (including, towithout limitation, or under Seller Intellectual Property; ), nor suffer to exist or (c) enter into create any material Contract relating to Lien on any of the Product assets of the Business, other than except as permitted by this Agreement or in the ordinary course of business consistent with past practice; providedand except that assets which are obsolete may be disposed of; (D) not incur any Indebtedness in excess of $1,000,000, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than intercompany Indebtedness with respect to the binding purchase orders for Product entered into Divisions) or the issuance of or drawings under letters of credit or utilization of overdraft facilities, each in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of PurchaserBusiness; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (aE) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefitsnot, except in the ordinary course of business and consistent with past practice business, enter into, modify or as may be required under existing Contractsterminate any Material Contracts or Leases or Employment Agreements, or agree to do so; 5.3.9 (aF) adopt maintain the books, accounts and records of the Business in the usual, ordinary and regular manner and in material compliance with all applicable Laws; (G) use its commercially reasonable efforts to meet its obligations under all Material Contracts and Leases and not become in Default thereunder; (H) maintain the assets of the Business in good repair, order and condition, reasonable wear and tear excepted, and maintain insurance upon the Business and assets thereof at least comparable in amount and kind to that in effect on the date hereof; (I) not authorize or amend make any capital expenditure in connection with the Business in excess of $1,000,000 individually, except for the matters set forth on Schedule 5.3(I); and --------------- (J) use its commercially reasonable efforts not to violate any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) Law applicable to the extent such adoption Business, nor violate any order, injunction or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9decree applicable thereto.

Ordinary Course of Business. Except 6.5.1 Prior to the Closing, except (ai) as set forth on Schedule 3.13 or 6.5 or actions taken in Section 5.3 the ordinary course of the Seller Disclosure business pursuant to or in connection with Contracts listed on Schedule or 3.8, (ii) as otherwise contemplated specifically provided for by this Agreement or consented to or approved in writing by Buyer or (iii) for transactions between or among any Ancillary Agreement; Company and any other Company and/or one or more of the Subsidiaries of any Company or between or among Subsidiaries of any Company, the Sellers shall cause each Company and each Subsidiary of each Company to: (a) conduct its business in the ordinary course of business, consistent with Good Operating Practices; (b) as required by applicable Lawmaintain the insurance coverage described in Section 3.15, including the filing and prosecution of any claims related to the Acquired Assets; and (c) for any actions comply with all applicable laws and regulations relating to the Acquired Assets, including without limitation, all Environmental Laws, except where the failure to so comply would not result, individually or in the aggregate, in a Material Adverse Effect. 6.5.2 Without limiting the generality of the foregoing, and, except as expressly (i) contemplated by in this Agreement; , (ii) described in Schedule 6.5 or (diii) as Purchaser required under applicable laws and regulations or by any Governmental Authority, prior to the Closing, without the prior written consent of Buyer, the Sellers shall otherwise consent in writingnot, which consent shall not be unreasonably withhelddirectly or indirectly through their Subsidiaries, conditioned or delayed, from and after with respect to the Execution Date and during the Pre-Closing Period (clauses Acquired Assets: (a) – (d)make any material change in the levels of Inventories customarily maintained with respect to the GPU Assets and the Development Assets, the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and other than changes in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key SuppliersGood Operating Practices or that would not have, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP individually or in the Purchased Assets. Prior to the Closingaggregate, Seller shall nota Material Adverse Effect; (b) sell, and shall cause each lease (as lessor), encumber, pledge, transfer or otherwise dispose of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition Acquired Assets (and without limiting the generality of the foregoing)except for (i) Acquired Assets, except to the extent constituting an Ordinary Course of Business Exceptionused, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties consumed or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than replaced in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or Good Operating Practices, (ii) waive any material claims or rights dispositions of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials obsolete assets in the ordinary course of business consistent with past practice; 5.3.4 Good Operating Practices, (aiii) terminateproperty losses, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or bothiv) under any of the Purchased Contracts (except dispositions in the ordinary course of business consistent in accordance with past practice any Contract listed on Schedule 3.8 and (v) dispositions of Acquired Assets not to exceed $10.0 million in the aggregate, except that no such disposition shall be of any Acquired Assets necessary for Purchased the operation of a generating facility included in the Acquired Assets), other than to encumber Acquired Assets with Permitted Liens; (c) modify, amend, voluntarily terminate, waive or permit to expire prior to the scheduled expiration date any Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) listed on an annual basis); (b) grant a license under Schedule 3.8, Real Property leases or assign any of the Purchased Contracts Permits or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, Environmental Permits associated with such Acquired Assets other than (i) in the ordinary course of business business, to the extent consistent with past practice; providedGood Operating Practices, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5ii) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contractsin connection with the transactions contemplated by this Agreement or the Sithe/GPU Agreements or (iii) as may be required by applicable law, rule or regulation; 5.3.9 (ad) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (bi) enter into any commitment for the purchase, sale, or adopt transportation of fuel unless (A) such commitment is terminable on or before the Closing Date either (1) automatically or (2) by option of any collective bargaining agreement Company or other Contract with any labor organizationSubsidiary of any Company (or after the Closing, union by Buyer) without penalty or association relating premium in its sole discretion, (B) such commitment will by its terms be fully performed on or before the Closing Date, (C) such commitment is for an amount of fuel necessary to or affecting produce electricity sufficient to satisfy the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any obligations of the actions described Sellers or their Subsidiaries pursuant to any Contract entered into pursuant to Section 6.5.2 (d)(ii)(C) or (D) the aggregate payment under such commitment for fuel and all other outstanding commitments for fuel not previously approved by Buyer would not exceed $5.0 million, or (ii) enter into any commitment for the purchase or sale of electricity, capacity or related products unless (A) such commitment is terminable on or before the Closing Date either (1) automatically or (2) by option of any Company or any Subsidiary of any Company (or after the Closing, by Buyer) without penalty or premium in Sections 5.3.1 through 5.3.9.its sole discretion, (B) such commitment will by its terms be fully performed on or before the Closing Date, (C) such commitment is for the sale of electricity into the PJM Energy Interchange Market, or a similar daily spot market, (1) for an amount of electricity not to exceed, with respect to any generating facility included in the GPU

Ordinary Course of Business. Except During the period from the date hereof to the Closing Date and except as otherwise agreed to by the Parties in writing, Seller shall cause each PCA-Sub to (ai) as set forth in Section 5.3 conduct its operations according to its ordinary and usual course of business consistent with past practices; (ii) preserve intact its business organization, service provider and other contracts, properties, provider organizations, and enrollees; (iii) keep available the services of its officers and employees; and (iv) maintain satisfactory relationships with providers, payers, members, licensors, suppliers, distributors, customers, employees, contractors and others having business relationships with such PCA-Sub. Without limiting the generality of the Seller Disclosure Schedule foregoing, prior to the earlier of the Closing Date or the termination of this Agreement and except as otherwise contemplated required by this Agreement or any of the Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser Documents, no PCA-Sub shall otherwise and Seller shall ensure that none of the PCA-Subs shall, with the prior written consent in writingof Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses : (a) – amend its Articles or Certificate of Incorporation or Bylaws; (b) authorize for issuance, issue or deliver any additional shares of any stock of any class or securities convertible into shares of stock of any PCA-Sub or issue or grant any right, option, warrant or other commitment for the issuance of shares of stock or such securities; (c) split, combine or reclassify any shares of its capital stock or declare, set aside or pay any dividend (whether in cash, stock or property) in respect of its capital stock or redeem or otherwise acquire any of its capital stock; (d)) sell or purchase marketable securities owned by it, if any, except in the “Ordinary Course ordinary course of Business Exceptions”), Seller shall business; (ie) conduct prepay its expenses or obligations except in accordance with the Product Business in substantially the same manner as heretofore conducted terms of applicable contracts or agreement and in the ordinary course of business (or otherwise not to exceed $2,500); (f) increase compensation and/or benefits for any of its employees, consultants or officers; (g) terminate or enter into any employment or consulting contracts or any collective bargaining agreement; (h) sell or dispose of or encumber any of its capital assets with an aggregate value of $10,000 or more or make any capital expenditures in an aggregate amount in excess of $10,000 or enter into, renew or extend any lease of capital equipment or real estate involving payments in an aggregate amount in excess of $10,000 for the term of the lease; (i) create, amend, extend, renew, assume, incur or guarantee any indebtedness either involving amounts in excess of $2,500, individually or in the aggregate or not in the ordinary course of its business; (j) enter into any contract or commitment (including employment, consulting and collective bargaining agreements) or engage in any transaction which is not in the usual and ordinary course of its business or which is inconsistent with its past practices; (k) create any stock option or other stock-based incentive plan; (l) acquire any other business or interest therein; (m) enter into, amend or terminate (other than by expiration) any contract to which it is a party or by which its assets are bound, except in the usual and ordinary course of business consistent with past practice; and practices; (iin) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliersamend, Customers and Distributors; (2) supplement or otherwise alter, in any material licensors and licensees; and (3) and other Persons having business respect, any contracts or relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP andany providers, to the extent Seller has prosecution rights except as required hereunder or pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth Ancillary Documents or in ARTICLE 7 not being satisfied. In addition the usual and ordinary course of business consistent with past practices; (and without limiting the generality o) amend, supplement or otherwise alter, in any material respect, any contracts or relationships with any subscribers or employer groups, except as required hereunder or pursuant to any of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangibleAncillary Documents, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreementpractices; 5.3.2 (ip) settle commence, compromise, settle, waive, approve or commence permit the settlement of, any Litigation litigation, proceeding, hearing, arbitration or material claim; other dispute or (ii) waive any material claims or rights claim involving amounts in controversy of material value, more than $2,500 in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assetsaggregate, other than in connection with the use of Product Promotional Materials for fair consideration in the ordinary course of business consistent with past practicepractices; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (cq) enter into any material Contract relating to agreement or engage in any transaction with any of its stockholders, directors, officers or affiliates, or any of the Product Businessstockholders, directors, officers or affiliates of any PCA-Sub, other than as provided in the ordinary course Section 4.3 hereof; (r) make any change in its accounting practices; (s) fail to keep in full force and effect insurance covering such PCA-Sub and its assets comparable in amount and scope of business consistent coverage to that which is now maintained; (t) fail to comply with past practice; providedany laws and regulations applicable to such PCA-Sub, that notwithstanding anything herein or to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during conduct of its business the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course noncompliance of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in adversely affect any of the actions described in Section 5.3.8PCA-Subs; or or (bu) enter into any contract or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating commitment to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take do any of the actions things described in Sections 5.3.1 through 5.3.9the foregoing sections of this Section 4.1 above.

Ordinary Course of Business. Except As of the Effective Time of the Merger, and continuing until all contingencies in this Merger Agreement have been fulfilled, Ultra Open MRI Holding Corp. (a) as set forth has operated in Section 5.3 the normal, usual, and customary manner and in the ordinary and regular course of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; business; (b) as required by applicable Law; (c) for has not sold or otherwise disposed of any actions as expressly contemplated by this Agreement; of the properties or (d) as Purchaser shall otherwise consent in writingassets of Ultra Open MRI Holding Corp., which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and other than inventory sold in the ordinary course of business consistent with past practice; and business; (c) except in each case in the ordinary course of business, (i) has not amended or terminated any outstanding lease, contract, or agreement, (ii) use all commercially reasonable efforts to: has not incurred any obligations or liabilities (Afixed, contingent, or other), and (iii) preserve has not entered any commitments; (d) has not made any transactions outside the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having ordinary course of business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior inventory of Ultra Open MRI Holding Corp. or any additions to its property or any purchases of machinery or equipment, except for normal maintenance and replacements; (e) has not discharged or satisfied any lien or encumbrance or paid any obligation or liability (absolute or contingent) of Ultra Open MRI Holding Corp. other than current liabilities or obligations under contracts then existing or thereafter entered into in the Closing, Seller shall notordinary course of business, and shall cause each commitments under leases existing on that date or incurred since that date in the ordinary course of its Affiliates to notbusiness; (f) has not mortgaged, take any action that wouldpledged, or that could reasonably be expected tosubjected to lien or any other encumbrances, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing)Ultra Open MRI Holding Corp.'s assets, except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible; (g) has not sold or transferred any tangible asset or canceled any debts or claims of Ultra Open MRI Holding Corp. except in each case in the ordinary course of business; (h) has not sold, assigned, or transferred any patents, trademarks, trade names, trade secrets, copyrights, or other intangible assets of Ultra Open MRI Holding Corp.; (i) has not suffered any material damage, destruction, or loss (whether or not covered by insurance) or any acquisition or taking of property of Ultra Open MRI Holding Corp. by any governmental authority; (j) has not waived any rights of Ultra Open MRI Holding Corp. that individually or in the aggregate exceed $1,000; (k) has not experienced any organized work stoppage or industrial action of Ultra Open MRI Holding Corp.; or (l) has not entered into any other transaction or transactions that individually or in the aggregate are material to the business of Ultra Open MRI Holding Corp., other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9business.

Ordinary Course of Business. Except (aA) as set forth in Section 5.3 of the Seller Disclosure Schedule or Except, as otherwise contemplated by the terms of this Agreement, during the period from the date of this Agreement or any Ancillary Agreement; to the First Closing Date (bthe "Pre-Closing Period"), the Company shall use commercially reasonable efforts to preserve intact its and its Subsidiaries' current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, advertisers, distributors and others having business dealings with them to the end that their goodwill and ongoing businesses shall be unimpaired. (B) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writingWithout limiting the generality of the foregoing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d)Period, each of the “Ordinary Course Company and its Subsidiaries shall not, without the prior consent of Business Exceptions”), Seller shall Purchaser (i) conduct amend its certificate of incorporation or by-laws, except as contemplated by the Product Restated Certificate; (ii) issue, deliver, sell, pledge, dispose of or encumber, or authorize or commit to the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest or amend the terms of its capital stock or enter into any agreement or understanding with respect to its capital stock, except (A) for the Recapitalization (as hereafter defined), (B) the Series C Repurchase (as hereinafter defined), (C) the Series E Redemption (as hereinafter defined), (D) issuances of Common Stock upon valid exercise of outstanding stock options or warrants, (E) issuances of Series D Preferred Stock in accordance with the provisions of the Series D Preferred Stock Purchase Agreement dated July 2, 1999 and (F) the pledge of stock of Subsidiaries in connection with the Company's new credit facility; (iii) combine, split, reverse split, or reclassify or otherwise alter the Company's capital stock (whether by recapitalization, reorganization or otherwise) or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, except for (A) the Recapitalization, (B) the Series C Repurchase, and (C) the Series E Redemption; (iv) pay any dividends on its capital stock or redeem or repurchase any shares of capital stock, except for (A) for Recapitalization, (B) the Series C Repurchase, and (C) the Series E Redemption; (v) acquire any corporation, partnership, business organization or material assets or enter into any merger or business combination transaction; (vi) dispose, transfer or encumber any material assets; (vii) incur any indebtedness for borrowed money (including draws under the Company's senior credit facilities) in excess of $5,000,000; (viii) enter into any arrangements with any affiliate; (ix) enter into any new material line of business or any joint venture or similar transaction; (x) authorize or make any capital expenditures other than expenditures consistent with the 1999 Business Plan not in substantially excess of $3,000,000 individually or $14,000,000 in the same manner as heretofore conducted and aggregate; (xi) enter into or amend or modify, in any material respect, any material contract, except in the ordinary course of business consistent with past practice; and (iixii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP in the Purchased Assets. Prior to the Closing, Seller shall not, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, other than in the ordinary course of business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreement; 5.3.2 (i) settle or commence any Litigation or material claim; or (ii) waive any material claims or rights of material value, in either case in a manner that would constitute an Assumed Liability increase or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closing; 5.3.3 sell, transfer, lease, license or otherwise dispose of or encumber (other than with a Permitted Encumbrance) any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify modify, in any material wayrespect, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.9.benefit

Ordinary Course of Business. Except (a) Prior to the Closing Date, and except as otherwise expressly contemplated by this Agreement or as set forth in Section 5.3 3.1 of the Seller Seller's Disclosure Schedule Schedule, or as otherwise contemplated approved in writing by this Agreement or any Ancillary Agreement; (b) as required by applicable Law; (c) for any actions as expressly contemplated by this Agreement; or (d) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d)Purchaser, the “Ordinary Course Seller covenants and agrees that: (A) The Company and each of Business Exceptions”), Seller shall the Subsidiaries will maintain itself at all times as a corporation duly organized and validly existing under the laws of the jurisdiction under which it is incorporated; (iB) conduct The Company and each of the Product Business in substantially the same manner as heretofore conducted and Subsidiaries will carry on its respective business in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights pursuant to the Seller License Agreements, the Seller Licensed Registered Product IP substantially in the Purchased Assets. Prior to manner carried on as of the Closing, Seller shall notdate hereof, and shall cause each of its Affiliates to not, take neither the Company nor any action that would, or that could reasonably be expected to, result Subsidiary will engage in any of the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business Exception, Seller shall not, and shall cause its Affiliates to not: 5.3.1 acquire activity or transaction or enter into any properties agreement or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, commitment other than in the ordinary course of its business consistent with past practice or with respect to binding orders entered into prior to the date of this Agreementas heretofore conducted; 5.3.2 (iC) settle Neither the Company nor any Subsidiary will declare, authorize or commence pay any Litigation distribution or material claim; dividend or (ii) waive any material claims or rights of material valueredeem, in either case in a manner that would constitute an Assumed Liability purchase or otherwise be materially adverse acquire, or agree to the Product Business redeem, purchase or Purchased Assets from and after the Closing; 5.3.3 otherwise acquire, any shares of its stock or issue, sell, transferpledge, lease, license or otherwise dispose of or encumber any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any share of its capital stock; (other D) Other than with a Permitted Encumbrance) as may be provided in any of the Purchased Assets, other than in connection with the use of Product Promotional Materials in the ordinary course of business consistent with past practice; 5.3.4 (a) terminate, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts Company's or any Contract granting rights inSubsidiary's existing Benefit Plans, toemployment contracts or arrangements, neither the Company nor any Subsidiary will pay or under Seller Intellectual Property; obligate itself to pay any compensation, commission, severance or (c) enter into retirement payment or bonus to any material Contract relating to the Product Businesscurrent or former director, officer or employee, other than in the ordinary course of business consistent with past practice; provided; (E) The Company and each of the Subsidiaries will use its reasonable efforts to preserve its business organization intact, that notwithstanding anything herein to keep available to the contraryPurchaser the services of its employees and to preserve for the Purchaser its relationships with suppliers, no Contract subject licensees, distributors and customers and others having business relationships with it; (F) Neither the Company nor any Subsidiary will sell or otherwise dispose of or pledge or otherwise encumber (unless resulting from actions beyond the Company's or any such Subsidiary's control, of a governmental authority or of another party to this Section 5.3.4 entered into by Seller during a contract to which the Pre-Closing Period (other than the binding purchase orders for Product entered into Company or any such Subsidiary is a party) any of its assets except in the ordinary course of business its business; (G) The Company and the Subsidiaries will maintain their facilities, machinery and equipment as a whole in good operating condition and repair consistent with past practice practice, subject only to ordinary wear and set forth on Section 5.3.4 tear; (H) Neither the Company nor any Subsidiary will amend its Certificate of Incorporation or By-Laws or other charter documents; (I) Neither the Company nor any Subsidiary will amend any of its employment contracts; (J) Without limiting the foregoing, the Seller will consult with the Purchaser regarding all material developments, transactions and proposals relating to the businesses of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of Company and the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of PurchaserSubsidiaries; 5.3.5 other than in (K) Neither the ordinary course of business consistent with past practice Company nor any Subsidiary shall modify, amend or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render terminate any of Seller’s representations its material contracts or warranties untrue waive, release or misleading, assign any material rights or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefitsclaims, except in the ordinary course of business and consistent with past practice or as may be required under existing Contractspractice; 5.3.9 (aL) adopt or amend in Neither the Company nor any Subsidiary shall permit any material respect any Seller Benefit Plan (insurance policy naming it as a beneficiary or any plan that would a loss payable payee to be a Seller Benefit Plan if adopted) cancelled or terminated without notice to the extent such adoption Purchaser, except in the ordinary course of business and consistent with past practice; (M) Neither the Company nor any Subsidiary shall: (i) incur or amendment would result assume any long-term debt, or except in the ordinary course of business, incur or assume any short-term indebtedness in amounts not consistent with past practice; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, except in the actions described in Section 5.3.8ordinary course of business and consistent with past practice; or (biii) enter into make any loans, advances or capital contributions to, or investments in, any other person (other than to the Company or any Subsidiary of the Company or customary loans or advances to employees in accordance with past practice); (N) Neither the Company nor any Subsidiary shall pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any such claims, liabilities or obligations, (i) in the ordinary course of business and consistent with past practice, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company and the Subsidiaries, (ii) incurred in the ordinary course of business and consistent with past practice or (iii) which are legally required to be paid, discharged or satisfied; (O) Neither the Company nor any Subsidiary will adopt any collective bargaining agreement a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any reorganization of the actions described Company or any Subsidiary; (P) Seller will not sell, assign, transfer or otherwise dispose of any Shares, or subject any Shares to any liens, pledges, voting agreements, restrictions, encumbrances or claims; and (Q) None of the Seller, the Company or any Subsidiary will take, or agree to commit to take, any action that is intended to make any representation or warranty of the Seller contained herein inaccurate in Sections 5.3.1 through 5.3.9any respect at the Closing Date.

Ordinary Course of Business. 4.2.1 Except as (a) as set forth in Section 5.3 of the Seller Disclosure Schedule or as otherwise contemplated by this Agreement or any Ancillary Agreement; (bx) as required by applicable Law; Law or Bankruptcy Court Order, (c) for any actions as expressly contemplated by this Agreement; or (dy) as Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, from and after the Execution Date and during the Pre-Closing Period (clauses (a) – (d), the “Ordinary Course of Business Exceptions”), Seller shall (i) conduct the Product Business in substantially the same manner as heretofore conducted and in the ordinary course of business consistent with past practice; and (ii) use all commercially reasonable efforts to: (A) preserve the Product Business and its goodwill and maintain its relations and goodwill with (1) the Key Suppliers, Customers and Distributors; (2) material licensors and licensees; and (3) and other Persons having business relationships with the Product Business; and (B) prosecute in good faith and maintain all the Seller Owned Registered Product IP and, to the extent Seller has prosecution rights required pursuant to the Seller License AgreementsDIP Financing Order or (z) otherwise expressly provided in this Agreement, set forth on Section 4.2.1 of the Seller Licensed Registered Product IP Disclosure Letter or for actions taken by Seller or its Subsidiaries as required in connection with the Chapter 11 Cases, during the Interim Period, Seller will use its reasonable best efforts to conduct the Business in accordance with the DIP Budget (as defined in the Purchased AssetsDIP Financing Order) in all material respects, taking into account the resources (financial and otherwise) and personnel available to Seller. Prior Without limiting the foregoing, except (x) as required by applicable Law or Bankruptcy Court Order, (y) as required pursuant to the ClosingDIP Financing Order or (z) for actions taken by Seller or its Subsidiaries as required by this Agreement or the Chapter 11 Cases, Seller shall notwithout the prior written consent of Buyer, and shall cause each of its Affiliates to not, take any action that would, or that could reasonably be expected to, result in any of during the conditions set forth in ARTICLE 7 not being satisfied. In addition (and without limiting the generality of the foregoing), except to the extent constituting an Ordinary Course of Business ExceptionInterim Period, Seller shall not, and shall cause its Affiliates to notSubsidiaries not to, directly or indirectly: 5.3.1 acquire any properties or assets that constitute Purchased Assets or Product Inventory, either tangible or intangible, (a) other than as otherwise authorized by the Bankruptcy Court (including, without limitation, by the Final Order (I) Authorizing Debtors to (A) Pay Certain Prepetition Employment Obligations and Compensation Obligations and (B) Maintain the Compensation Obligations and the Employee Benefits Programs and (II) Granting Related Relief Docket No. 187 or otherwise) or required by the terms of any Plan in existence as of the ordinary course date hereof, (i) increase or agree to increase the base salary or incentive compensation or any other compensation or benefits of business consistent any current or former Business Employee or individual independent contractor of the Business, (ii) adopt, enter into, materially amend or terminate any Plan (or any other benefit or compensation plan, program, agreement or arrangement that would be a Plan if in effect on the date hereof), (iii) grant, announce, or enter into any severance, retention, change in control or transaction bonus, cash or equity or equity-based incentive awards, or similar agreement or arrangement with past practice any current or former Business Employee or individual independent contractor of the Business, (iv) increase or accelerate the vesting or payment of, or otherwise fund or secure the payment of (whether in cash, property or vesting of property) or delivery, any compensation or benefits payable to a current or former Business Employee or other individual independent contractor of the Business, or (v) hire, promote, engage or terminate (other than for cause) any salaried Business Employee or individual independent contractor having annual base salary or hourly wage, as applicable, in excess of $150,000; (b) (i) modify, extend, terminate or enter into any Collective Bargaining Agreement covering any Business Employees or (ii) recognize or certify any labor union, labor organization, works council or group of employees as the bargaining representative for any Business Employees; (c) in respect of the Business or with respect to binding orders any facility at which Business Employees are located, implement or announce any employee layoffs, plant closings, reductions in compensation or other similar actions that trigger notice obligations under the WARN Act; (d) xxxxx, impose or suffer to be imposed any Encumbrance upon any of the Purchased Assets or any assets of any Acquired Entity (whether tangible or intangible) other than Permitted Encumbrances or Encumbrances that will be cured prior to the Closing; (e) materially modify, materially breach, repudiate, extend, renew, reject, let lapse or terminate any Purchased Contract or any Material Contract (or any Contract that would be a Material Contract if entered into prior to the Execution Date), or enter into any Contract that would be a Material Contract if in existence as of the date of this Agreementhereof, or waive, release or assign any material rights or claims under any Purchased Contract or Material Contract, in each case other than in the Ordinary Course or as provided for in the DIP Financing Order or as contemplated or permitted in the DIP Budget; 5.3.2 (f) (i) settle encumber, transfer, sell, assign, abandon, allow to lapse, fail to prosecute or commence maintain, exclusively license, or otherwise dispose of any Litigation material Owned Intellectual Property, except, in each case, other than (x) the expiration of issued or material claim; registered Owned Intellectual Property at the end of the maximum statutory term, or (y) in the Ordinary Course, or (ii) waive disclose any material claims Trade Secrets to any Person other than in the Ordinary Course pursuant to a written non-disclosure agreement or under a binding obligation of confidentiality; (g) compromise or settle any material Litigation, any opposition proceeding at the European Patent Office or any administrative proceeding at the United States Patent and Trademark Office relating to the Business or cancel, abandon or compromise any claim or waive, abandon or release any right, in each case, that is related to the Business or a Purchased Asset, including in respect of any material claim or right at the United States Patent and Trademark office or European Patent Office that relates to any pending or future patent applications; (h) amend the organizational documents of the Acquired Entities or issue any Equity Securities of any Acquired Entities other than to Seller or to a Subsidiary of Seller; (i) in case of any Acquired Entity, incur or issue any indebtedness for borrowed money, or assume, grant, guarantee or endorse, or otherwise become responsible for, any obligations of any Person, or make any loans or advances except under the DIP Financing Order or intercompany loans. (j) shorten or lengthen payment cycles or make any unusual or extraordinary efforts outside of the Ordinary Course to collect any accounts receivable, intercompany obligation or Liability for indebtedness, or give any discounts or concessions for early payment outside of the Ordinary Course with respect to such accounts receivable, intercompany obligation or Liability for indebtedness, or convey any interest in any accounts receivable, intercompany obligation or Liability for indebtedness to any third party; (k) redeem, repurchase, issue or sell any shares of, or other equity interests in, the Acquired Entities, or securities convertible into or exchangeable for such shares or equity interests, or issue or grant any options, warrants, call rights, subscription rights or other rights of material valueany kind to acquire such shares, in either case in a manner that would constitute an Assumed Liability equity interests or otherwise be materially adverse to the Product Business or Purchased Assets from and after the Closingsecurities; 5.3.3 (l) commence any bankruptcy or insolvency proceeding with respect to any Acquired Entity; (m) sell, transfer, lease, license sublease or otherwise dispose of any Purchased Assets or encumber any assets of any Acquired Entity other than in the Ordinary Course; (n) cause or permit the assignment, assumption or other transfer of any Liability from any Person (including any Seller) to any Acquired Entity; (o) grant any Top Customer or Top Supplier any material discounts, pricing accommodations, or other similar changes relating to pricing, payment terms or credit support other than in the Ordinary Course; (p) (A) other than in the Ordinary Course, make, change or revoke any material Tax election, (B) change any annual accounting period, (C) change any material method of accounting for Tax purposes, (D) settle any claim or assessment in a Tax proceeding in respect of a material amount of Taxes, (E) surrender any right to claim a material refund for Taxes, (F) other than with respect to automatic or automatically granted extensions, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or (G) file (in a Permitted Encumbrancemanner inconsistent with past practice) or amend any material Tax Return, in each case, with respect to any Acquired Entity; (q) seek any relief from, or modification of, the automatic stay on any Litigation involving Debtors and/or any of its Subsidiaries issued by the Bankruptcy Court; (r) grant any exclusive license to any material Purchased Assets, other than Intellectual Property to any Person in connection with the use sale of Product Promotional Materials Products to such Person or its Affiliates; and (s) authorize or enter into any agreement or commitment, whether or not in the ordinary course of business consistent with past practice; 5.3.4 (a) terminatewriting, amend or modify in any material way, grant a license to, waive any right under, or take any action or fail to take any action that would result in a breach or constitute a default (with or without due notice or lapse of time or both) under any of the Purchased Contracts (except in the ordinary course of business consistent with past practice for Purchased Contracts requiring payment of less than One Hundred Thousand Dollars ($100,000) on an annual basis); (b) grant a license under or assign any of the Purchased Contracts or any Contract granting rights in, to, or under Seller Intellectual Property; or (c) enter into any material Contract relating to the Product Business, other than in the ordinary course of business consistent with past practice; provided, that notwithstanding anything herein to the contrary, no Contract subject to prohibited by this Section 5.3.4 entered into by Seller during the Pre-Closing Period (other than the binding purchase orders for Product entered into in the ordinary course of business consistent with past practice and set forth on Section 5.3.4 of the Seller Disclosure Schedule, which such schedule shall be delivered to Purchaser at least five (5) Business Days prior to Closing) shall be added to Section 2.1.1(a) of the Seller Disclosure Schedule as a “Purchased Contract” without the prior written consent of Purchaser; 5.3.5 other than in the ordinary course of business consistent with past practice or in the transition to the formulation of the Second Generation Product, materially alter its activities and practices with respect to inventory levels of the Product maintained at the wholesale, chain, institutional or retail levels; 5.3.6 terminate, cancel, permit to lapse, amend, waive or materially modify any Seller Authorizations; 5.3.7 (a) take any action which is intended, or known to, or reasonably likely to have a Material Adverse Effect; or (b) take or omit to take any action which is intended, or known to, or reasonably likely to render any of Seller’s representations or warranties untrue or misleading, or which would be likely to result in a material breach of any of Seller’s covenants; 5.3.8 grant to any Product Business Employee any increase in compensation or benefits, except in the ordinary course of business and consistent with past practice or as may be required under existing Contracts; 5.3.9 (a) adopt or amend in any material respect any Seller Benefit Plan (or any plan that would be a Seller Benefit Plan if adopted) to the extent such adoption or amendment would result in any of the actions described in Section 5.3.8; or (b) enter into or adopt any collective bargaining agreement or other Contract with any labor organization, union or association relating to or affecting the Product Business Employees; or 5.3.10 agree, commit or offer (in writing or otherwise) to take any of the actions described in Sections 5.3.1 through 5.3.94.2.