Common use of Ordinary Course Clause in Contracts

Ordinary Course. Except as set forth in Exhibit 5.2, and except --------------- for any actions required to be performed by the Company, or otherwise permitted pursuant to this Agreement, the Company shall conduct its business generally in the ordinary and usual course in all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, independent contractors and business associates, and the Company shall not do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock; (c) declare, set aside or pay any dividend or make any other distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stock; (g) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; (h) authorize capital expenditures in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; provided, however, that --------- -------- the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than in the ordinary and usual course of business consistent with past practice; (j) except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee Plan; (k) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and (l) authorize or enter into any agreement to take any of the actions referred to in this Section.

Ordinary Course. Except During the period from the date of this Agreement to the Closing Date (except as set forth in Exhibit 5.2, and except --------------- for any actions required to be performed otherwise specifically contemplated by the Company, or otherwise permitted pursuant to terms of this Agreement), the Company shall, and Seller shall conduct cause the Company to, carry on its business generally businesses in the usual, regular, and ordinary and usual course in all material respects and substantially the same manner as conducted at the date hereof, and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organizations intact organization, keep available the services of its current officers and employees and preserve its existing relations relationships with customers, suppliers, employeeslicensors, independent contractors and business associateslicensees, distributors, and others having business dealings with the Company, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, prior to the Closing Date the Companies will not, and Seller will not, without the prior written consent of Buyer, permit or allow the Company shall to: (i) (A) declare, set aside, or pay any dividends on, or make any other distributions (other than distributions to each Seller for amounts not do exceeding their respective income tax liabilities) in respect of, any of the following without the approval of Purchaser its capital stock, (which approval shall not be unreasonably withheld): (aB) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify any of its outstanding 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; stock or (cC) declare, set aside or pay any dividend or make any other distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchasepurchase, redeem, or otherwise acquireacquire any shares of capital stock of the Company or any other securities thereof or any rights, directly warrants or indirectlyoptions to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge, dispose of, or otherwise encumber any of its capital stock or any securities convertible into into, or exchangeable any rights, warrants or exercisable into options to acquire, any of its such capital stock; (eiii) enter into amend the Company Charter Document; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any material transaction not other manner, any business or any corporation, partnership, association, joint venture, limited liability company, or other entity or division thereof, or (B) any assets that would be material, individually or in the aggregate, to the Company, except purchases of supplies and inventory in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stock; (g) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; (hv) authorize capital expenditures in excess sell, lease, mortgage, pledge, xxxxx x Xxxx on, or otherwise encumber or dispose of $25,000 other than any of its properties or assets, except (A) in the ordinary and usual course of business consistent with past practice; providedpractice or (B) other transactions involving not in excess of $20,000.00 in the aggregate; (vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, howeverissue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, that --------- -------- guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking economic effect of any of the following actions foregoing, except for (including1) working capital borrowings under revolving credit facilities incurred in the ordinary course of business, without limitationand (2) indebtedness incurred to refund, making any capital expenditure in connection therewith): refinance, or replace indebtedness for borrowed money outstanding on the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination date hereof, or (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (iB) make any material acquisition ofloans, advances or capital contributions to, or investment investments in, assets, shares, capital stock or other securities of any other person or entity person, other than employees of the Company in the ordinary and usual course of business consistent with past practice; (jvii) except as may be required to satisfy contractual obligations existing as make or incur capital expenditures in the aggregate in excess of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or $20,000; (viii) make any material elections under election relating to Taxes or settle or compromise any collective bargaining agreement or Employee Planmaterial Tax liability; (kix) implement any change in its accounting principlespay, practicesdischarge, or methodssatisfy any claims, liabilities, or obligations (absolute, accrued, asserted or unasserted, contingent, or otherwise), other than as may be required by generally accepted accounting principles; andthe payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms of liabilities reflected or reserved against in, or contemplated by, the Company Balance Sheet; (lx) authorize waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization, or reorganization; (xii) change any accounting principle used by it; (xiii) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises of litigation where the amount paid in settlement or compromise does not exceed $10,000.00; (xiv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director, or employee, except that, the Company may hire additional employees to the extent deemed by its management to be in the best interests of the Company; provided, that the Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees; (B) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company benefit plan (other than amendments required by law); (C) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus pa yments consistent with past practices); or (D) grant any stock options or stock awards; or (xv) authorize any of, or commit or agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except During the period from the date of this Agreement to the Closing Date (except as set forth otherwise specifically contemplated by the terms of this Agreement), Company shall carry on its businesses in Exhibit 5.2the usual, regular, and except --------------- for any actions required to be performed by the Company, or otherwise permitted pursuant to this Agreement, the Company shall conduct its business generally in the ordinary and usual course in all material respects and substantially the same manner as conducted at the date hereof, and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organizations intact organization, keep available the services of its current officers and employees and preserve its existing relations relationships with customers, suppliers, employeeslicensors, independent contractors and business associateslicensees, distributors, and others having business dealings with Company, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, prior to the Closing Date and one year from the Closing Date, the Company shall will not, without the prior written consent of TBeck, permit or allow Company to: (i) (A) declare, set aside, or pay any dividends on, or make any other distributions (other than distributions to the shareholders for amounts not do exceeding their respective income tax liabilities) in respect of, any of the following without the approval of Purchaser its capital stock, (which approval shall not be unreasonably withheld): (aB) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify any of its outstanding 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; , or (cC) declare, set aside or pay any dividend or make any other distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchasepurchase, redeem, or otherwise acquireacquire any shares of capital stock of each Company or any other securities thereof or any rights, directly warrants or indirectlyoptions to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge, dispose of, or otherwise encumber any of its capital stock or any securities convertible into into, or exchangeable any rights, warrants or exercisable into options to acquire, any of its such capital stock; (eiii) enter into amend the Company Charter Document; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any material transaction not other manner, any business or any corporation, partnership, association, joint venture, limited liability company, or other entity or division thereof, or (B) any assets that would be material, individually or in the aggregate, to each Company, except purchases of supplies and inventory in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stock; (g) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; (hv) authorize capital expenditures in excess sell, lease, mortgage, pledge, xxxxx x xxxx on, or otherwise encumber or dispose of $25,000 other than any of its properties or assets, except (A) in the ordinary and usual course of business consistent with past practice; providedpractice or (B) other transactions involving not in excess of $20,000.00 in the aggregate; (vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, howeverissue or sell any debt securities or warrants or other rights to acquire any debt securities of Company, that --------- -------- guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking economic effect of any of the following actions foregoing, except for (including1) working capital borrowings under revolving credit facilities incurred in the ordinary course of business, without limitationand (2) indebtedness incurred to refund, making any capital expenditure in connection therewith): refinance, or replace indebtedness for borrowed money outstanding on the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination date hereof, or (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (iB) make any material acquisition ofloans, advances or capital contributions to, or investment investments in, assets, shares, capital stock or other securities of any other person or entity person, other than employees of each Company in the ordinary and usual course of business consistent with past practice; (jvii) except as may be required to satisfy contractual obligations existing as make or incur capital expenditures in the aggregate in excess of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or $50,000; (viii) make any material elections under election relating to taxes or settle or compromise any collective bargaining agreement or Employee Planmaterial tax liability; (kix) implement any change in its accounting principlespay, practicesdischarge, or methodssatisfy any claims, liabilities, or obligations (accrued, asserted or unasserted, contingent, or otherwise), other than as may be required by generally accepted accounting principles; andthe payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms of liabilities reflected or reserved against in, or contemplated by, the Company Balance Sheet; (lx) authorize waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Company is a party; (xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization, or reorganization; (xii) change any accounting principle used by it; (xiii) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises of litigation where the amount paid in settlement or compromise does not exceed $10,000.00; (xiv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director, or employee, except that, each Company may hire additional employees to take the extent deemed by its management to be in the best interests of the relevant Company; provided, that Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees; (B) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company benefit plan (other than amendments required by law); (C) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices); or (D) grant any stock options or stock awards; or, (xv) authorize, or commit or agree to take, any of the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except During the period from the date of this Agreement to the Effective Time of the Merger (except as set forth otherwise specifically contemplated by the terms of this Agreement), the Company shall and shall cause its subsidiaries to carry on their respective businesses in Exhibit 5.2the usual, regular and ordinary course in substantially the same manner as conducted at the date hereof (including the on-going expansion project at the Company's Mississippi gas storage operations (the "Gas Storage Expansion Project"), which is being undertaken in the ordinary course of business) and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except --------------- for any actions required to be performed as otherwise expressly contemplated by the Company, or otherwise permitted pursuant to this Agreement, the Company shall conduct its business generally in the ordinary and usual course in all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, independent contractors and business associatesnot, and the Company shall not do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify permit any of its outstanding shares of capital stock;subsidiaries to: (ci) (A) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly-owned subsidiary of the Company to the Company or a wholly-owned subsidiary of the Company, (B) 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 or (C) other than in 13 20 connection with the Senior Preferred Stock Redemption, purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable or exercisable forinto, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any such shares, voting securities or convertible securities (other than, in the case of its shares the Company, the issuance of capital stockShares upon the exercise of options or conversion of Senior Preferred Stock outstanding on the date of this Agreement (as identified and described in Section 3.1(c)) in accordance with their current terms); (giii) transferamend the Company Charter, lease, license, sell, mortgage, pledge, encumberBy-laws or other comparable charter or organizational document; (iv) acquire or agree to acquire (A) by merging or consolidating with, or dispose by purchasing a substantial portion of any material property the stock or assets or incur, guarantee, assumeof, or increase by any indebtedness other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other liability entity or division thereof or (B) any assets that would be material, individually or in excess the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of $25,000 other than supplies and inventory in the ordinary and usual course of business consistent with past practice; (hv) authorize capital expenditures in excess sell, lease, mortgage, pledge, granx x Xxxx xx or otherwise encumber or dispose of $25,000 other than any of its properties or assets, except (A) sales of inventory in the ordinary and usual course of business consistent with past practice; provided, however, that --------- -------- (B) other transactions involving not in excess of $500,000 in the nothing in this Agreement shall be construed to prohibit aggregate and (or require any consent from Purchaser forC) the creation of Liens in connection with working capital borrowings under revolving credit facilities incurred in accordance with Section 4.1(a)(vi); (vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company taking or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement with respect to any of the following actions foregoing, except for working capital borrowings under revolving credit facilities that are (including1) incurred in the ordinary course of business, (2) on terms customary for facilities of this type and (3) prepayable without limitationpremium or penalty; provided the Company notifies Parent of the entering into of any such facilities and of any drawdowns made thereunder; or (B) make any loans, making advances or capital contributions to, or investments in, any capital expenditure in connection therewith): other person, other than to the satisfaction and termination Company or any direct or indirect wholly owned subsidiary of the Company; (vii) make or incur any new capital expenditure not included in the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balanceapproved capital expenditure budget for 1999 set forth as on Section 4.1(a)(vii) of the Company's corporate credit card; any payments to Zion Credit Corporation Company Disclosure Document or not in conjunction with the landlord's Gas Storage Expansion Project as contemplated by Section 4.1(a)(vii) of the Company's Connecticut and Florida locations Company Disclosure Document with respect to 1999, which, singly or in connection the aggregate with all other expenditures, would exceed $500,000 or enter into any material agreements or commitments with respect to capital expenditures without the obtaining prior written consent of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders Parent (which consent shall promptly notify -------- Purchaser of such actions.not be unreasonably withheld); (iviii) make any material acquisition ofelection relating to Taxes or settle or compromise any material Tax liability; (ix) pay, discharge or investment insatisfy any claims, assetsliabilities or obligations (absolute, sharesaccrued, capital stock asserted or other securities of any other person unasserted, contingent or entity otherwise), other than the payment, discharge or satisfaction, in the ordinary and usual course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the SEC Documents or incurred in the ordinary course of business consistent with past practice; (jx) except as may be required release any party from or waive the benefits of, or agree to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend modify in any material respectmanner, any confidentiality, standstill or make similar agreement to which the Company or any material elections under any collective bargaining agreement or Employee Planof its subsidiaries is a party; (kxi) implement any change in its accounting principlesadopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, practicesmerger, consolidation, restructuring, recapitalization or methods, other than as may be required by generally accepted accounting principles; andreorganization; (lxii) authorize or enter into any agreement new collective bargaining agreement; (xiii) change any material accounting principle used by it, except as required by regulations promulgated by the SEC or the Financial Accounting Standards Board; (xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent, such consent not to be unreasonably withheld; (xv) enter into any forward sale or hedging arrangements with respect to natural gas transportation or storage or any other products; or (xvi) authorize any of, or commit or agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except as set forth in Exhibit 5.2, Tenke shall (and except --------------- for any actions required to be performed by the Company, or otherwise permitted pursuant to this Agreement, the Company shall cause each Tenke Group Member to) conduct its business generally only in the ordinary and usual course in all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, independent contractors and business associates, and the Company Tenke shall not (and shall cause each Tenke Group Member not to) do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld):following: (a) sell or pledge or agree to sell or pledge any capital stock owned by it in any of its subsidiaries, except pursuant to the Arrangement; (b) amend its Articles or Certificate of Incorporation (or like charter documents) or By-lawslaws except as contemplated by the Arrangement; (bc) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock; (cd) declare, set aside or pay any dividend or make any other distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock; providedstock other than consistent with past practice, howeverand other than dividends or distributions declared, that set aside, paid or payable by any Tenke Group Member to Tenke, except pursuant to the Company shall continue to have the right to distribute Standstill Payments among the StockholdersArrangement; (de) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (ef) incur, guarantee, assume or modify any additional indebtedness for borrowed money in an aggregate amount in excess of $10,000,000 other than in the ordinary course of business; (g) enter into any material transaction not in the ordinary course of its business consistent with past practicebusiness; (fh) issue, sell, pledge, dispose of, of or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any shares of its capital stockcapital, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stockother than pursuant to this Agreement or currently outstanding securities directly or indirectly convertible into or exchangeable or exercisable for Tenke Shares and pursuant to the exercise of options outstanding under Tenke's stock option plan; (gi) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; (hj) authorize capital expenditures in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; providedmake, howeverwhether by arrangement, that --------- -------- the nothing in this Agreement shall be construed to prohibit (consolidation or require purchase, any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than its wholly-owned subsidiaries or in the ordinary and usual course of business consistent with past practice; (jk) except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable LawsLaw, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee PlanPlan or enter into any new or amend any existing employment, consulting or other agreement providing compensation or benefits to any executive employee or director, except for employment agreements with new employees (other than Xxxxxx corporate staff) entered into in the ordinary course of business which agreements do not provide for the payment of "golden parachutes" or other amounts in respect of severance which are triggered by the transactions set forth herein; (kl) except as may be required to satisfy contractual obligations or Tenke Group Employee Plan obligations existing as of the date hereof and the requirements of applicable Law: (i) amend any Tenke Group Employee Plan where such amendment would increase any Tenke Group Member's annual or aggregate liability or funding obligations in connection with such Tenke Group Employee Plan by more than five percent, (ii) terminate or merge any Employee Plan(s), (iii) transfer assets from any Tenke Group Employee Plan or any agreement with any officer, director or employee of Tenke, (iv) extend membership, benefits or coverage under any Tenke Group Employee Plan to any employee who is not currently eligible to receive such membership, benefits or coverage, (v) incorporate any "change in control" provision into any Tenke Group Employee Plan, or modify any "change in control" provision presently contained in any Tenke Group Employee Plan or any agreement with any officer, director or employee of Tenke, or (vi) transfer any employee from any Tenke Group Member to any other Tenke Group Member in circumstances where such transfer would increase the Tenke Group Member's collective expenses in connection with the employment of such employee; (m) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and; (ln) except as contemplated herein, alter (through arrangement, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of any Tenke Group Member; (o) withdraw, permit or consent to the removal of any assets of any of the Employee Plans maintained by any Tenke Group Member other than for the purpose of paying benefits in the ordinary course and payment of expenses in accordance with past practice and under the terms of such plan; (p) authorize or enter into any agreement or understanding of any type whatsoever, whether written or oral to take any of the actions referred to in this Section. It is expressly understood, agreed and acknowledged that any action by Tenke or Tenke Holdings to cause TF Holdings and TFM to conduct business in accordance with the Shareholder's Agreement including, without limitation, the voting of shares, the provision of guarantees or indemnities and/or the provision of additional funding through Tenke's commitments for its portion of the senior debt and equity for the Tenke Fungurume Project to such corporations in accordance with the Shareholder's Agreement shall not in any circumstances be deemed to be a violation of the foregoing covenants.

Ordinary Course. Except as set forth in Exhibit 5.2, and except --------------- for any actions required to be performed by the Company, USMX or otherwise permitted pursuant to this Agreement, the Company USMX shall (and shall cause each USMX Group Member to) conduct its business generally only in the ordinary and usual course in all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, independent contractors and business associates, and the Company USMX shall not (and shall cause each USMX Group Member not to) do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld):following: (a) sell or pledge or agree to sell or pledge any capital stock owned by it in any of its Subsidiaries; (b) amend its Certificate of Incorporation (or like charter documents) or By-laws; (bc) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock; (cd) declare, set aside or pay any dividend or make any other distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (de) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (ef) enter into any material transaction not in the ordinary course of its business consistent with past practice; (fg) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stockstock other than debentures or notes convertible into USMX Shares as contemplated in clause (h) below or USMX Shares issuable pursuant to securities convertible into USMX Shares outstanding on the date hereof; (gh) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase modify any indebtedness or other liability other than in excess the ordinary and usual course of $25,000 business consistent with past practice, other than convertible debentures or notes issued by USMX or other indebtedness incurred by USMX in an aggregate principal amount of up to US$3 Million on terms and conditions acceptable to Dakota, acting reasonably; (i) authorize capital expenditures other than in the ordinary and usual course of business consistent with past practice; (h) authorize capital expenditures in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; provided, however, that --------- -------- the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (ij) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than its wholly-owned Subsidiaries or in the ordinary and usual course of business consistent with past practice; (jk) except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable LawsLaw, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee Plan; (kl) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and (lm) authorize or enter into any agreement to take any of the actions referred to in this Section.

Ordinary Course. Except During the period from the date of this Agreement to the Effective Time (except as set forth in Exhibit 5.2, and except --------------- for any actions required to be performed otherwise specifically contemplated by the Company, or otherwise permitted pursuant to terms of this Agreement), the Company shall conduct and shall cause its business generally subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as conducted at the date hereof, which are being undertaken in the ordinary and usual course in all material respects and of business) and, to the extent consistent therewith, use all commercially reasonable efforts to preserve its intact their current business organizations intact organizations, keep available the services of their current officers and its existing relations employees and preserve their relationships with customers, suppliers, employeeslicensors, independent contractors licensees, distributors and others having business associatesdealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement and Section 4.1 of the Disclosure Schedule, prior to the Effective Time the Company shall not do any of the following without the approval of Purchaser (which approval not, and shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify permit any of its outstanding shares of capital stock;subsidiaries to: (ci) (A) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to the Company or a wholly owned subsidiary of the Company, (B) 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 or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its or its subsidiaries' capital stock, any other voting securities or any securities convertible into or exchangeable or exercisable forinto, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any such shares, voting securities or convertible securities (other than, in the case of its shares the Company, the issuance of capital stockShares upon the exercise of options and warrants outstanding on the date of this Agreement (as identified and described in Section 3.1(c)) in accordance with their current terms); (giii) transfer, lease, license, sell, mortgage, pledge, encumberamend the Company Charter or other comparable charter or organizational documents; (iv) acquire or agree to acquire (A) by merging or consolidating with, or dispose by purchasing a substantial portion of any material property the stock, or other ownership interests in, or assets or incur, guarantee, assumeof, or increase by any indebtedness other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other liability entity or division thereof or (B) any assets that would be material, individually or in excess the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of $25,000 other than supplies and inventory in the ordinary and usual course of business consistent with past practice; (hv) authorize capital expenditures in excess sell, lease, mortgage, pledge, xxxxx x Xxxx on or otherwise encumber or dispose of $25,000 other than any of its properties or assets, except (A) in the ordinary and usual course of business consistent with past practice; providedpractice and (B) other transactions involving not in excess of $1,000,000 in the aggregate; (vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, however, that --------- -------- the nothing in this Agreement shall be construed issue or sell any debt securities or warrants or other rights to prohibit (or require acquire any consent from Purchaser for) debt securities of the Company taking or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the following actions foregoing, except for borrowings under revolving credit facilities incurred in the ordinary course of business and except for indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date hereof, or (includingB) make any loans, without limitationadvances or capital contributions to, making or investments in, any capital expenditure in connection therewith): other person, other than to the satisfaction and termination Company or any direct or indirect wholly owned subsidiary of the Company's credit line with Xxxxxxx Xxxxx; the termination ; (and payment of vii) make or incur any outstanding balance) of new capital expenditure not included in the Company's corporate credit card; any payments approved capital expenditure budget for 2001, previously provided to Zion Credit Corporation Parent, which, singly or in the landlord's of the Company's Connecticut and Florida locations in connection aggregate with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; providedall other expenditures, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions.would exceed $1,000,000; (iviii) make any material acquisition ofelection relating to Taxes or settle or compromise any material Tax liability; (ix) pay, discharge or investment insatisfy any claims, assetsliabilities or obligations (absolute, sharesaccrued, capital stock asserted or other securities of any other person unasserted, contingent or entity otherwise), other than the payment, discharge or satisfaction, in the ordinary and usual course of business consistent with past practicepractice or in accordance with their terms of liabilities reflected or reserved against in, or contemplated by, the Company Balance Sheet; (jx) except as may be required waive the benefits of, or agree to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend modify in any material respectmanner, any confidentiality, standstill or make similar agreement to which the Company or any material elections under any collective bargaining agreement or Employee Planof its subsidiaries is a party; (kxi) implement adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (xii) enter into any new collective bargaining agreement; (xiii) change any accounting principle used by it, except as required by regulations promulgated by the SEC or the Financial Accounting Standards Board; (xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in its accounting principles, practicessettlement or compromise does not exceed $500,000, or methods(B) in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent; (xv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee, except that, the Company may hire additional employees to the extent deemed by its management to be in the best interests of the Company; provided, that the Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees, (B) adopt any new, or amend any existing, incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees (other than amendments required by law or to maintain the tax qualified status of such plans under the Code), (C) grant any increases in employee compensation, other than as may be required by generally accepted accounting principlesin the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (D) grant any stock options or stock awards; andor (lxvi) authorize any of, or enter into any agreement commit or agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except During the period from the date of this Agreement to the Closing Date (except as set forth in Exhibit 5.2, and except --------------- for any actions required to be performed otherwise specifically contemplated by the Company, or otherwise permitted pursuant to terms of this Agreement), the Company shall, and Sellers shall conduct cause the Company to, carry on its business generally businesses in the usual, regular and ordinary and usual course in all material respects and substantially the same manner as conducted at the date hereof, and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organizations intact organization, keep available the services of its current officers and employees and preserve its existing relations relationships with customers, suppliers, employeeslicensors, independent contractors licensees, distributors and others having business associatesdealings with the Company, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, prior to the Closing Date the Company shall not do any of the following will not, and Sellers will not, without the approval prior written consent of Purchaser (which approval shall not be unreasonably withheld):Buyer, permit or allow the Company to: (ai) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock; (cA) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions (other than distributions to the Sellers for amounts not exceeding their respective U.S. federal income tax liabilities) in cashrespect of, shares, stock, securities or property with respect to any of its capital stock, (B) 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 or (C) purchase, redeem or otherwise acquire any shares of capital stock; provided, however, that stock of the Company shall continue or any other securities thereof or any rights, warrants or options to have the right to distribute Standstill Payments among the Stockholdersacquire any such shares or other securities; (dii) repurchaseissue, redeemdeliver, sell, pledge, dispose of or otherwise acquire, directly or indirectly, encumber any of its capital stock or any securities convertible into into, or exchangeable any rights, warrants or exercisable into options to acquire, any of its such capital stock; (eiii) enter into amend the Company Charter Documents; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any material transaction not other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof, or (B) any assets that would be material, individually or in the aggregate, to the Company, except purchases of supplies and inventory in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stock; (g) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; (hv) authorize capital expenditures in excess sell, lease, mortgage, pledge, gxxxx x Xxxx on or otherwise encumber or dispose of $25,000 other than any of its properties or assets, except (A) in the ordinary and usual course of business consistent with past practice; providedpractice or (B) other transactions involving not in excess of $100,000.00 in the aggregate; (vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, howeverissue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, that --------- -------- guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking economic effect of any of the following actions foregoing, except for (including1) working capital borrowings under revolving credit facilities incurred in the ordinary course of business, without limitationand (2) indebtedness incurred to refund, making any capital expenditure in connection therewith): refinance or replace indebtedness for borrowed money outstanding on the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination date hereof, or (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (iB) make any material acquisition ofloans, advances or capital contributions to, or investment investments in, assets, shares, capital stock or other securities of any other person or entity person, other than employees of the Company in the ordinary and usual course of business consistent with past practice; (jvii) except as may be required to satisfy contractual obligations existing as make or incur capital expenditures in the aggregate in excess of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or $400,000.00; (viii) make any material elections under election relating to Taxes or settle or compromise any collective bargaining agreement or Employee Planmaterial Tax liability; (kix) implement pay, discharge or satisfy any change in its accounting principlesclaims, practicesliabilities or obligations (absolute, accrued, asserted or methodsunasserted, contingent or otherwise), other than as may be required by generally accepted accounting principles; andthe payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms of liabilities reflected or reserved against in, or contemplated by, the Company Balance Sheet; (lx) authorize waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (xii) enter into any new collective bargaining agreement; (xiii) change any accounting principle used by it, except for changes conforming to regulations promulgated by the Financial Accounting Standards Board; (xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $50,000.00, or (B) in consultation and cooperation with Buyer, and, with respect to any such settlement, with the prior written consent of Buyer; (xv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee, except that, the Company may hire additional employees to the extent deemed by its management to be in the best interests of the Company; provided, that the Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees; (B) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Benefit Plan (other than amendments required by law or to maintain the tax qualified status of such plans under the Code); (C) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices); or (D) grant any stock options or stock awards; or (xvi) authorize any of, or commit or agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except During the period from the date of this Agreement to the Effective Time of the Merger (except as set forth otherwise specifically contemplated by the terms of this Agreement or as described in Exhibit 5.2the Company Disclosure Document), the Company shall and shall cause its subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except --------------- for any actions required to be performed as otherwise expressly contemplated by the Company, or otherwise permitted pursuant to this Agreement, the Company shall conduct its business generally in the ordinary and usual course in all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, independent contractors and business associatesnot, and the Company shall not do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify permit any of its outstanding shares of capital stock;subsidiaries to: (ci) (A) declare, set aside or pay any dividend dividends (other than the Company's regular quarterly dividends payable to stockholders on or after August 14, 1999, and quarterly thereafter) on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to the Company or a wholly owned subsidiary of the Company, (B) 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 or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; provided, however, with respect to clause (A) above after the consummation of the Offer the Company will make no further dividends or distributions; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable or exercisable forinto, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any such shares, voting securities or convertible securities (other than, in the case of its the Company, the issuance of Shares upon the exercise of options outstanding on the date of this Agreement (as identified and described in Section 3.1(c)(iv) and (v)) in accordance with their current terms), purchase, redeem or otherwise acquire or agree to acquire any shares of capital stockstock or other securities of the Company or any of its subsidiaries; (giii) transferamend any material term of any of its outstanding securities; (iv) amend its Certificate of Incorporation, lease, license, sell, mortgage, pledge, encumberBy-laws or other comparable charter or organizational document; (v) acquire or agree to acquire (A) by merging or consolidating with, or dispose by purchasing a substantial portion of any material property the stock or assets or incur, guarantee, assumeof, or increase by any indebtedness other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other liability entity or division thereof or (B) any assets that would be material, individually or in excess the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of $25,000 other than supplies and inventory in the ordinary and usual course of business consistent with past practice; (hvi) authorize capital expenditures form any joint venture with any other person under circumstances wherein the Company and its subsidiaries would have any liability or obligation for a contribution to be evidenced by debt or equity of such venture in excess of $25,000 other than 100,000; (vii) sell, lease, mortgage, pledge, xxxxx x Xxxx on or otherwise encumber or dispose of any of its properties or assets, except (A) sales of inventory in the ordinary and usual course of business consistent with past practice; providedpractice and (B) other transactions involving not in excess of $1,000,000 in the aggregate; (viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, however, that --------- -------- the nothing in this Agreement shall be construed issue or sell any debt securities or warrants or other rights to prohibit (or require acquire any consent from Purchaser for) debt securities of the Company taking or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the following actions foregoing, except for working capital borrowings under currently existing revolving credit facilities incurred in the ordinary course of business and except for indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date hereof, or (includingB) make any loans, without limitationadvances or capital contributions to, making or investments in, any capital expenditure in connection therewith): other person, other than to the satisfaction and termination Company or any direct or indirect wholly owned subsidiary of the Company; (ix) make or incur any new capital expenditure not included in the Company's credit line approved capital expenditure budget for 1999, which, singly or in the aggregate with Xxxxxxx Xxxxx; all other expenditures, would exceed $1,000,000; (x) make or change any Tax election not required by law, other than consistent with past practice, make any change in any method of Tax accounting, except as described in the termination Company Disclosure Document, enter into any settlement or compromise with respect to any Tax liability, or make any material change in reserves for Tax items other than any change in such reserves relating to the ordinary course operation of the respective businesses of the Company and its subsidiaries during current taxable periods; (and payment xi) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of any outstanding balancebusiness consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company's corporate credit card; any payments to Zion Credit Corporation Company included in the SEC Documents or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than incurred in the ordinary and usual course of business consistent with past practice; (jxii) except as may be required waive the benefits of, or agree to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend modify in any material respectmanner, any confidentiality, standstill or make similar agreement to which the Company or any material elections under any collective bargaining agreement or Employee Planof its subsidiaries is a party; (kxiii) implement adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (xiv) enter into any new collective bargaining agreement; (xv) change any material accounting principle used by it, except as required by regulations promulgated by the SEC or the Financial Accounting Standards Board; (xvi) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in its accounting principles, practicessettlement or compromise does not exceed $250,000, or methods(B) in consultation and cooperation with Parent, other than as may be required by generally accepted accounting principles; and, with respect to any such settlement, with the prior written consent of Parent; (lxvii) authorize make any transaction or commitment, or enter into any contract or agreement relating to its assets or business (including the acquisition or disposition of any assets) or relinquish any contract or other right, in either case, material to the Company and its subsidiaries, taken as a whole, other than transactions and commitments made or entered into in the ordinary course of business consistent with past practices and those contemplated by this Agreement; or (xviii) authorize any of, or commit or agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Entheon shall conduct business only in the ordinary course consistent with past practice. Except as set forth in Exhibit 5.2, and except --------------- for any actions required to be performed contemplated by the Company, or otherwise permitted pursuant to this Agreement, the Company Amalgamation or as agreed to between the parties or as required by applicable laws, Entheon shall conduct its business generally in the ordinary and usual course in all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, independent contractors and business associates, and the Company shall not do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld):not: (a) amend its Certificate Articles or Notice of Incorporation (or like charter documents) or By-lawsArticles, except as contemplated by the Amalgamation and this Agreement; (b) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock; (c) issue or agree to issue any securities except pursuant to the exercise of currently outstanding options or other convertible securities; (d) declare, set aside or pay any dividend or make any other distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholdersstock other than consistent with past practice; (de) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (ef) enter into or modify any material transaction not in the ordinary course of its business consistent with past practice; (f) issueemployment, sellconsulting, pledgeseverance, dispose ofcollective bargaining or similar agreement, policy or arrangement with, or encumbergrant any bonus, salary increase, option to purchase shares, pension or supplemental pension benefit, profit sharing, retirement allowance, deferred compensation, incentive compensation, severance, change of control or termination pay to, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance ofmake any loan to, any officer, director, employee or consultant of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stockEntheon; (g) transferother than pursuant to obligations or rights under existing written contracts, lease, licenseagreements and commitments, sell, mortgage, pledge, encumber, lease or otherwise dispose of any material property or assets or incur, guarantee, assume, enter into any agreement or increase commitment in respect of any indebtedness or other liability in excess of $25,000 other than in the ordinary and usual course of business consistent with past practiceforegoing; (h) authorize capital expenditures in excess of $25,000 other than in amend or propose to amend the ordinary rights, privileges and usual course of business consistent with past practice; provided, however, that --------- -------- restrictions attaching to the nothing in this Agreement shall be construed to prohibit (Entheon Shares or require any consent from Purchaser for) the Company taking any of the following actions (includingterms of its stock options or common share purchase warrants as they exist at the date of this Agreement, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions.reduce its stated capital; (i) make any material acquisition ofreorganize, amalgamate or investment in, assets, shares, capital stock or other securities of any other person or entity other than in the ordinary and usual course of business consistent merge with past practiceanother Person; (j) except as may be required acquire or agree to satisfy contractual obligations existing as acquire any corporation or other entity (or material interest therein) or division of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any corporation or other entity or material respect, or make any material elections under any collective bargaining agreement or Employee Planassets; (k) implement enter into any change in agreements outside of the ordinary course with its accounting principles, practices, directors or methods, other than as may be required by generally accepted accounting principlesofficers or their respective affiliates; andor (l) authorize except as required by IFRS, or enter into any agreement applicable law, make any changes to take the existing accounting practices of Entheon or make any of the actions referred to in this Sectionmaterial tax election inconsistent with past practice.

Ordinary Course. Except as set forth in Exhibit 5.2Schedule 5(A)(a), and except --------------- for any actions required during the period from the date of this Agreement to be performed by the Company, or otherwise permitted pursuant to this AgreementClosing Date, the Company shall conduct and shall cause its business generally Subsidiaries to carry on their respective businesses in the usual, regular and ordinary and usual course in all material respects and substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all commercially reasonable efforts to preserve its business organizations intact their current officers and its existing relations employees and preserve their relationships with customers, suppliers, employeeslicensors, independent contractors licensees, distributors and others having business associatesdealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement and the Schedules hereto, without the prior written consent of the Purchaser, the Company shall not do any of the following without the approval of Purchaser (which approval not, and shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify permit any of its outstanding shares of capital stock;Subsidiaries to: (ci) (A) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company, (B) 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 or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities other than in connection with the exercise of outstanding stock options and warrants and satisfaction of withholding obligations under outstanding stock options and restricted stock; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable or exercisable forinto, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any such shares, voting securities or convertible securities other than, in the case of its the Company, the issuance of shares of capital stockCommon Stock upon the exercise of stock options and warrants outstanding on the date of this Agreement in accordance with their current terms; (giii) transferamend its Articles of Incorporation, lease, license, sell, mortgage, pledge, encumberBy-laws or other comparable charter or organizational document; (iv) acquire or agree to acquire (A) by merging or consolidating with, or dispose by purchasing a substantial portion of any material property the stock or assets or incur, guarantee, assumeof, or increase by any indebtedness other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other liability entity or division thereof or (B) any assets that, in excess of $25,000 other than each case, would be material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, except purchases in the ordinary and usual course of business consistent with past practice; (h) authorize capital expenditures in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; provided, however, that --------- -------- the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than in the ordinary and usual course of business consistent with past practice; (j) except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee Plan; (k) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and (l) authorize or enter into any agreement to take any of the actions referred to in this Section.

Ordinary Course. Except During the period from the date of this Agreement to the Effective Time of the Merger (except as set forth otherwise specifically contemplated by the terms of this Agreement or as described in Exhibit 5.2the Company Disclosure Document), the Company shall and shall cause its subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except --------------- for any actions required to be performed as otherwise expressly contemplated by the Company, or otherwise permitted pursuant to this Agreement, the Company shall conduct its business generally in the ordinary and usual course in all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, independent contractors and business associatesnot, and the Company shall not do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify permit any of its outstanding shares of capital stock;subsidiaries to: (ci) (A) declare, set aside or pay any dividend dividends (other than the Company's regular quarterly dividends payable to stockholders on or after August 14, 1999, and quarterly thereafter) on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to the Company or a wholly owned subsidiary of the Company, (B) 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 or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; provided, however, with respect to clause (A) above after the consummation of the Offer the Company will make no further dividends or distributions; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable or exercisable forinto, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any such shares, voting securities or convertible securities (other than, in the case of its the Company, the issuance of Shares upon the exercise of options outstanding on the date of this Agreement (as identified and described in Section 3.1(c)(iv) and (v)) in accordance with their current terms), purchase, redeem or otherwise acquire or agree to acquire any shares of capital stockstock or other securities of the Company or any of its subsidiaries; (giii) transferamend any material term of any of its outstanding securities; (iv) amend its Certificate of Incorporation, lease, license, sell, mortgage, pledge, encumberBy-laws or other comparable charter or organizational document; (v) acquire or agree to acquire (A) by merging or consolidating with, or dispose by purchasing a substantial portion of any material property the stock or assets or incur, guarantee, assumeof, or increase by any indebtedness other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other liability entity or division thereof or (B) any assets that would be material, individually or in excess the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of $25,000 other than supplies and inventory in the ordinary and usual course of business consistent with past practice; (hvi) authorize capital expenditures form any joint venture with any other person under circumstances wherein the Company and its subsidiaries would have any liability or obligation for a contribution to be evidenced by debt or equity of such venture in excess of $25,000 other than 100,000; (vii) sell, lease, mortgage, pledge, granx x Xxxx xx or otherwise encumber or dispose of any of its properties or assets, except (A) sales of inventory in the ordinary and usual course of business consistent with past practice; providedpractice and (B) other transactions involving not in excess of $1,000,000 in the aggregate; (viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, however, that --------- -------- the nothing in this Agreement shall be construed issue or sell any debt securities or warrants or other rights to prohibit (or require acquire any consent from Purchaser for) debt securities of the Company taking or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the following actions foregoing, except for working capital borrowings under currently existing revolving credit facilities incurred in the ordinary course of business and except for indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date hereof, or (includingB) make any loans, without limitationadvances or capital contributions to, making or investments in, any capital expenditure in connection therewith): other person, other than to the satisfaction and termination Company or any direct or indirect wholly owned subsidiary of the Company; (ix) make or incur any new capital expenditure not included in the Company's credit line approved capital expenditure budget for 1999, which, singly or in the aggregate with Xxxxxxx Xxxxx; all other expenditures, would exceed $1,000,000; (x) make or change any Tax election not required by law, other than consistent with past practice, make any change in any method of Tax accounting, except as described in the termination Company Disclosure Document, enter into any settlement or compromise with respect to any Tax liability, or make any material change in reserves for Tax items other than any change in such reserves relating to the ordinary course operation of the respective businesses of the Company and its subsidiaries during current taxable periods; (and payment xi) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of any outstanding balancebusiness consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company's corporate credit card; any payments to Zion Credit Corporation Company included in the SEC Documents or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than incurred in the ordinary and usual course of business consistent with past practice; (jxii) except as may be required waive the benefits of, or agree to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend modify in any material respectmanner, any confidentiality, standstill or make similar agreement to which the Company or any material elections under any collective bargaining agreement or Employee Planof its subsidiaries is a party; (kxiii) implement adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (xiv) enter into any new collective bargaining agreement; (xv) change any material accounting principle used by it, except as required by regulations promulgated by the SEC or the Financial Accounting Standards Board; (xvi) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in its accounting principles, practicessettlement or compromise does not exceed $250,000, or methods(B) in consultation and cooperation with Parent, other than as may be required by generally accepted accounting principles; and, with respect to any such settlement, with the prior written consent of Parent; (lxvii) authorize make any transaction or commitment, or enter into any contract or agreement relating to its assets or business (including the acquisition or disposition of any assets) or relinquish any contract or other right, in either case, material to the Company and its subsidiaries, taken as a whole, other than transactions and commitments made or entered into in the ordinary course of business consistent with past practices and those contemplated by this Agreement; or (xviii) authorize any of, or commit or agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except Except: (i) as set forth in Exhibit 5.2, Section 4.02 of the Amax Disclosure Letter; (ii) to the extent such an Amax Group Member is subject to contractual restrictions or restrictions set forth in the organizational documents of such Amax Group Member which would limit or otherwise restrict its ability to do so; and except --------------- (iii) for any actions required to be performed by the Company, Amax or otherwise permitted pursuant to contemplated by this AgreementAgreement or the Stockholder Agreement or approved in advance by Kinross, the Company Amax shall (and shall cause each Amax Group Member to) conduct its business generally only in the ordinary and usual course in all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, independent contractors and business associates, and the Company Amax shall not (and shall cause each Amax Group Member not to) do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld):following: (a) sell or pledge or agree to sell or pledge any capital stock owned by it in any of its subsidiaries; (b) amend its Articles or Certificate of Incorporation (or like charter documents) or By-laws; (bc) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock; (cd) other than in accordance with the terms of the Amax Preferred Shares, declare, set aside or pay any dividend or make any other distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock; providedstock other than consistent with past practice, howeverand other than dividends or distributions declared, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholdersset aside, paid or payable by any Amax Group Member (other than Amax) or a subsidiary of Amax; (de) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stockstock other than upon conversion of the Amax Preferred Shares; (ef) incur, guarantee, assume or modify any additional indebtedness for borrowed money in an aggregate amount in excess of $30,000,000 other than in the ordinary course of business or pursuant to credit facilities and arrangements with the Significant Shareholder provided, however that any new credit -------- ------- facility not provided by the Significant Shareholder or any of its Affiliates shall be provided by a financial institution and advances thereunder shall not be applied to the reduction of debt owing to the Significant Shareholder pursuant to the existing demand loan facility; (g) enter into any material transaction not in the ordinary course of its business consistent with past practice; (fh) issue, sell, pledge, dispose of, of or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stockstock other than: (i) Amax Shares issued pursuant to the exercise or conversion of outstanding securities of Amax convertible into Amax Shares or pursuant to the exercise or conversion of options outstanding pursuant to Amax's stock option plans; or (ii) Amax Shares issued as or with respect to contributions to or fund transfers within the Amax's 401(k) Plan in effect on the date hereof; (gi) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; (hj) authorize capital expenditures in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; providedmake, howeverwhether by merger, that --------- -------- the nothing in this Agreement shall be construed to prohibit (consolidation or require any consent from Purchaser for) the Company taking any of the following actions (includingpurchase, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than its wholly-owned subsidiaries or in the ordinary and usual course of business consistent with past practice; (jk) except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable LawsLaw, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee PlanPlan or enter into any new or amend in any material respect any existing employment, consulting or other agreement providing compensation or benefits to any executive employee or director except for employment agreements with new employees (other than Amax corporate staff), entered into in the ordinary course of business which agreements do not provide for the payment of "golden parachutes" or other amounts in respect of severance which are triggered by the Merger; (kl) except as may be required to satisfy contractual obligations or Amax Group Employee Plan obligations existing as of the date hereof and the requirements of applicable Law: (i) amend any Amax Group Employee Plan where such amendment would increase any Amax Group Member's annual or aggregate liability or funding obligations in connection with such Amax Group Employee Plan by more than five percent, (ii) terminate or merge any Employee Plan(s), (iii) transfer assets from any Amax Group Employee Plan, (iv) extend membership, benefits or coverage under any Amax Group Employee Plan to any employee who is not currently eligible to receive such membership, benefits or coverage, (v) incorporate any "change in control" provision into any Amax Group Employee Plan, or modify any "change in control" provision presently contained in any Amax Group Employee Plan [except for certain clarification amendments to the Amax 1992 Stock Option Plan, Performance Share Plan and the Key Employees Separation Plan], (vi) transfer any employee from any Amax Group Member to any other Amax Group Member in circumstances where such transfer would increase the Amax Group Members' collective expenses in connection with the employment of such employee; (m) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and; (ln) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of Amax or any Amax Group Member; (o) withdraw, permit or consent to the removal of any assets of any of the Employee Plans maintained by any Amax Group Member other than for the purpose of paying benefits in the ordinary course and payment of expenses in accordance with past practice and under the terms of such plan; (p) take any action that would either: (i) prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Tax Code; or (ii) cause the Eligible Amax Shareholders to recognize a taxable gain in the Merger under Section 367(a) of the Tax Code; (q) take any action that would prevent the Merger from being characterized as a "pooling of interests" for the purposes of Canadian GAAP; (r) authorize or enter into any agreement or understanding of any type whatsoever, whether written or oral to take any of the actions referred to in this Section.

Ordinary Course. Except During the period from the date of this Agreement to the Effective Time of the Merger (except as set forth otherwise specifically contemplated by the terms of this Agreement), Parent shall and shall cause each of its significant subsidiaries to carry on their respective businesses in Exhibit 5.2the usual, regular and ordinary course in substantially the same manner as heretofore conducted. Without limiting the generality of the foregoing, and except --------------- for any actions required to be performed as otherwise expressly contemplated by the Company, or otherwise permitted pursuant to this Agreement, the Company Parent shall conduct its business generally in the ordinary and usual course in all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, independent contractors and business associatesnot, and the Company shall not do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify permit any of its outstanding shares of capital stock;significant subsidiaries to: (ci) (A) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, other than (I) dividends and distributions by any direct or indirect wholly-owned subsidiary of Parent to Parent or a wholly-owned subsidiary of Parent or (II) regular quarterly cash dividends declared or paid by Parent consistent with past practice, (B) 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 or (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable or exercisable forinto, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any such shares, voting securities or convertible securities other than, in the case of its shares Parent, (A) the issuance of capital stock; (g) transfer, lease, license, sell, mortgage, pledge, encumberParent Shares upon the exercise of Stock Options outstanding on the date of this Agreement in accordance with their current terms, or dispose of any material property or assets or incur, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; (h) authorize capital expenditures in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; provided, however, that --------- -------- the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser forB) the Company taking any issuance of a number of Parent Shares, not to exceed 5% of the following actions (includingParent Shares currently outstanding, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining acquisition of releases assets or equity securities of other entities or businesses; (iii) amend its Certificate of Incorporation, By-laws, or other comparable charter or organizational document; (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (v) change any personal guarantees material accounting principle used by it, except as required by regulations promulgated by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entitiesSEC; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions.or (ivi) make authorize any material acquisition of, or investment in, assets, shares, capital stock commit or other securities of any other person or entity other than in the ordinary and usual course of business consistent with past practice; (j) except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee Plan; (k) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and (l) authorize or enter into any agreement agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except During the period from the date of this Agreement to the Effective Time (except as set forth in Exhibit 5.2, and except --------------- for any actions required to be performed otherwise specifically contemplated by the Company, or otherwise permitted pursuant to terms of this Agreement), the Company shall conduct carry on its business generally businesses in the usual, regular and ordinary course in substantially the same manner as conducted at the date hereof, which are being undertaken in the ordinary and usual course in all material respects and of business, and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organizations intact organizations, keep available the services of its current officers and employees and preserve its existing relations relationships with customers, suppliers, employeeslicensors, independent contractors licensees, distributors and others having business associatesdealings with the Company, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, prior to the Effective Time the Company shall not do any of the following not, without the approval prior written consent of Purchaser (which approval shall not be unreasonably withheld):Parent and Sub: (ai) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock; (cA) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cashrespect of, shares, stock, securities or property with respect to any of its capital stock, (B) 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 or (C) purchase, redeem or otherwise acquire any shares of capital stock; provided, however, that stock of the Company shall continue or any other securities thereof or any rights, warrants or options to have the right to distribute Standstill Payments among the Stockholdersacquire any such shares or other securities; (dii) repurchaseissue, redeemdeliver, sell, pledge, dispose of or otherwise acquire, directly or indirectly, encumber any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stockinto, or any securities convertible into rights, warrants or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind options to acquire, any such capital stock (other than the issuance of its shares Company Shares upon the exercise of capital stockoptions outstanding on the date of this Agreement (as identified and described in Section 3.1(c)) in accordance with their current terms); (giii) transfer, lease, license, sell, mortgage, pledge, encumberamend the Company Charter Documents; (iv) acquire or agree to acquire (A) by merging or consolidating with, or dispose by purchasing a substantial portion of any material property the stock, or other ownership interests in, or assets or incur, guarantee, assumeof, or increase by any indebtedness other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other liability entity or division thereof or (B) any assets that would be material, individually or in excess the aggregate, to the Company, except purchases of $25,000 other than supplies and inventory in the ordinary and usual course of business consistent with past practice; (hv) authorize capital expenditures in excess sell, lease, mortgage, pledge, xxxxx x Xxxx on or otherwise encumber or dispose of $25,000 other than any of its properties or assets, except (A) in the ordinary and usual course of business consistent with past practice; providedpractice and (B) other transactions involving not in excess of $100,000 in the aggregate; (vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, howeverissue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, that --------- -------- guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking economic effect of any of the following actions foregoing, except for (including1) working capital borrowings under revolving credit facilities incurred in the ordinary course of business, without limitation(2) borrowings to fund the payments required by Section 5.9 and (3) indebtedness incurred to refund, making any capital expenditure in connection therewith): refinance or replace indebtedness for borrowed money outstanding on the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination date hereof, or (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (iB) make any material acquisition ofloans, advances or capital contributions to, or investment investments in, assets, shares, capital stock or other securities of any other person or entity person, other than employees of the Company in the ordinary and usual course of business consistent with past practice; (jvii) make or incur any capital expenditure (including expenditures for oil and gas exploration and development), except in the ordinary course of business and, in the case of any single expenditure in excess of $200,000 and any expenditures in the aggregate in excess of $500,000, as may be required previously disclosed in writing to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or Parent; (viii) make any material elections under election relating to Taxes or settle or compromise any collective bargaining agreement or Employee Planmaterial Tax liability; (kix) implement take any change in its accounting principlesextraordinary action that causes the Company's net operating loss carryforwards to be reduced; (x) pay, practicesdischarge or satisfy any claims, liabilities or methodsobligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than as may be required by generally accepted accounting principles; andthe payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms of liabilities reflected or reserved against in, or contemplated by, the Company Balance Sheet; (lxi) authorize waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (xii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (xiii) enter into any new collective bargaining agreement; (xiv) change any accounting principle used by it, except as required by regulations promulgated by the SEC or the Financial Accounting Standards Board; (xv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $100,000, or (B) in consultation and cooperation with Parent, and, with respect to any such settlement, with the prior written consent of Parent; (xvi) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee, except that, the Company may hire additional employees to the extent deemed by its management to be in the best interests of the Company; provided, that the Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees, (B) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Benefit Plan (other than amendments required by law or to maintain the tax qualified status of such plans under the Code) or (C) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (D) grant any stock options or stock awards; or (xvii) authorize any of, or commit or agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except During the period from the date of this Agreement to the Effective Time of the Merger (except as set forth in Exhibit 5.2, and except --------------- for any actions otherwise specifically required to be performed by the Company, or otherwise permitted pursuant to terms of this Agreement), the Company shall conduct and shall cause its business generally subsidiaries to carry on their respective businesses in the usual, regular and ordinary and usual course in all material respects and substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve its intact their current business organizations intact organizations, keep available the services of their current officers and its existing relations employees and preserve their relationships with customers, Governmental Entities, suppliers, employeesinsurers, independent contractors licensors, licensees, distributors and others having business associatesdealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent reasonably possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly set forth in this Agreement, during such period, the Company shall not do any of the following without the approval of Purchaser (which approval not, and shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify permit any of its outstanding shares of capital stock; subsidiaries to: (ci) (A) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to the Company or a wholly-owned subsidiary of the Company, (B) 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 or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into any such shares; or exchangeable issue, deliver, sell or exercisable forgrant any rights, warrants or options to acquire any such shares, voting securities or convertible securities; or issue, deliver, sell or grant any stock appreciation rights, phantom stock or similar rights or enter into A-18 24 any agreement to do any of the foregoing, except for the issuance of Shares upon the exercise of Option Plan options or the Class B Warrants, or optionsthe conversion of the Convertible Debt, putsall as outstanding on the date of this Agreement in accordance with their current terms; (iii) amend its Certificate of Incorporation, warrantsBy-laws or other comparable charter or organizational document; (iv) acquire or agree to acquire (A) by merging or consolidating with, callsor by purchasing a substantial portion of the stock or assets of, commitments or rights of by any kind to acquireother manner, any of its shares of capital stock; (g) transferbusiness or any corporation, leasepartnership, licenseassociation, selljoint venture, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase any indebtedness limited liability company or other liability entity or division thereof or (B) any assets that would be material, individually or in excess the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of $25,000 other than supplies and inventory in the ordinary and usual course of business consistent with past practice; (h) authorize capital expenditures in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; provided(v) sell, howeverlease, that --------- -------- the nothing in this Agreement shall be construed to prohibit (mortgage, pledge, granx x Xxxx xx or require any consent from Purchaser for) the Company taking otherwise encumber or otherwise dispose of any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation its properties or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities except sales of any other person or entity other than inventory in the ordinary and usual course of business consistent with past practice; ; (jvi) except as may be required (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to satisfy contractual obligations existing as acquire any debt securities of the date hereof Company or any of its subsidiaries, guarantee any debt securities of another person, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (vii) make or incur any new capital expenditure or expenditures not set forth in the Company's capital budget for fiscal 1995, or in an amount in excess of that set forth for any such item in such capital budgets (a true and correct copy of which budget has been previously furnished to Parent), except for capital expenditures not in excess of $50,000 as to any single item and $100,000 in the requirements aggregate; (viii) make any election relating to Taxes or settle or compromise any Tax liability; (ix) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of applicable Lawsbusiness consistent with past practice or in accordance with their terms, establishof liabilities reflected or reserved against in, adoptor contemplated by, enter intothe most recent consolidated financial statements (or the notes thereto) of the Company included in the SEC Documents or incurred in the ordinary course of business consistent with past practice; (x) waive the benefits of, makeor agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party; (xi) terminate or amend in any material respectrespect any contract or agreement material to the Company; (xii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or make reorganization; (xiii) except as expressly permitted by this Agreement, enter into any material elections under new collective bargaining agreement or any successor collective bargaining agreement to any collective bargaining agreement or Employee Plan; disclosed in Section 3.1(u) of the Disclosure Schedule; (kxiv) implement change any material accounting principle used by it, except insofar as any such change in its accounting principles, practices, or methods, other than as may be is required by generally accepted accounting principlesprinciples or by the rules and regulations of the SEC; (xv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in A-19 25 settlement or compromise does not exceed $10,000, or (B) in consultation and cooperation with Parent, and , with respect to any such settlement, with the prior written consent of Parent; (lxvi) authorize any of, or commit or agree to take any of, the foregoing actions; or (xvii) excluding inventory purchased for resale in the ordinary course of business, the company will not enter into any agreement to take any contracts or other material business obligations or commitments in excess of the actions referred to in this Section$100,000, or for a term longer than one year.

Ordinary Course. Except as set forth in Exhibit 5.2, and except --------------- for any actions required During the period from the date of this Agreement to be performed by the Company, or otherwise permitted pursuant to this AgreementClosing Date, the Company shall conduct and shall cause its business generally Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary and usual course in all material respects and substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve its intact their current business organizations intact organizations, keep available the services of their current officers and its existing relations employees and preserve their relationships with customers, suppliers, employeeslicensors, independent contractors licensees, distributors and others having business associatesdealings with them to the end that their goodwill and ongoing businesses shall, and in all material respects, be unimpaired at the Closing Date. Except for the matters listed in Section 5.1 of the Company Disclosure Letter, without limiting the generality of the foregoing, during the period from the date of this Agreement to the Closing Date, the Company shall not do any of the following without the approval of Purchaser (which approval not, and shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify permit any of its outstanding shares Subsidiaries, without the prior written consent of capital stock;Holdings, to: (ci) (x) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned Subsidiary of the Company to its parent, (y) split, combine or reclassify an 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 or (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable or exercisable forinto, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any such shares, voting securities or convertible securities (other than (x) the issuance of its shares Common Stock upon the exercise of capital stockEmployee Stock Options and Director Stock Options outstanding on the date of this Agreement in accordance with their present terms, and (y) the issuance of Common Stock pursuant to the Option Agreement); (giii) transferamend its certificate of incorporation, lease, license, sell, mortgage, pledge, encumberby-laws or other comparable charter or organizational documents or reincorporate in any jurisdiction; (iv) acquire or agree to acquire (x) by merging or consolidating with, or dispose by purchasing a substantial portion of any material property or the assets or incur, guarantee, assumeof, or increase by any indebtedness other manner, any business or any corporation, partnership, joint venture, association or other liability in excess of $25,000 other than business organization or division thereof, except for such actions undertaken in the ordinary course of business and usual consistent with past practice and involving no more than $250,000 in the aggregate or (y) any assets that are material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, except purchases of inventory in the ordinary course of business consistent with past practice; (hv) authorize capital expenditures in excess sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of, any of $25,000 other than its properties or assets, except sales of properties or assets no longer used by the Company or its Subsidiaries in the ordinary conduct of its business and usual course sales of business consistent with past practice; provided, however, that --------- -------- the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than inventory in the ordinary and usual ordina course of business consistent with past practice; (jvi) except as may be required (y) incur any Indebtedness for borrowed money or guarantee any such Indebtedness of another person, issue or sell any debt securities or warrants or other rights to satisfy contractual obligations existing as acquire any debt securities of the date hereof Company or any of its Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowing not in excess of $1,000,000 in the aggregate incurred in the ordinary course of business consistent with past practice, the endorsement of checks in the normal course of business and the requirements extension of applicable Lawscredit in the normal course of business or (z) make any loans, establishadvances or capital contributions to, adoptor investments in, any other person, other than to the Company or any direct or indirect wholly owned Subsidiary of the Company; (vii) make or agree to make any new capital expenditures or commitments, purchases of property or acquisitions of other businesses, capital assets or properties which, individually, is in excess of $250,000 or, in the aggregate, are in excess of $1,000,000 or enter intointo any new real property lease with an annual rental of more than $60,000; (viii) make any Tax election (other than in the ordinary course of preparing and filing its Tax returns) or settle or compromise any material Tax liability; (ix) pay, makedischarge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, or liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the SEC Reports or incurred after the date of such financial statements in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality or similar agreement to which the Company or any of its Subsidiaries is a party; (x) adopt any shareholder rights or similar plan or take any other action with the intention of, or which may have the effect of, discriminating against Holdings as a shareholder of the Company (or any successor); (xi) adopt or amend in any material respect, or make respect any material elections under any collective bargaining agreement or Employee Plan; (kxii) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and (l) authorize or enter into any agreement contract, agreement, plan or arrangement covering any director, officer or employee providing for the making of any payments, the acceleration of vesting of any benefit or right or any other entitlement contingent upon (A) the consummation of the transactions contemplated hereby or by the Option Agreement or any acquisition by Holdings of securities of the Company (whether by merger, tender offer, private or market purchases or otherwise) or (B) the 39 termination of employment after the occurrence of any such contingency if such payment, acceleration of entitlement would not have been provided but for such contingency; or amend any existing contract, agreement, plan or arrangement to so provide; or (xiii) authorize any of, or commit or agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except During the period from the date of this Agreement to the Closing Date (except as set forth in Exhibit 5.2, and except --------------- for any actions required to be performed otherwise specifically contemplated by the Company, or otherwise permitted pursuant to terms of this Agreement), the Company shall, and Sellers shall conduct cause the Company to, carry on its business generally businesses in the usual, regular and ordinary and usual course in all material respects and substantially the same manner as conducted at the date hereof, and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organizations intact organization, keep available the services of its current officers and employees and preserve its existing relations relationships with customers, suppliers, employeeslicensors, independent contractors licensees, distributors and others having business associatesdealings with the Company, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, prior to the Closing Date the Company shall not do any of the following will not, and Sellers will not, without the approval prior written consent of Purchaser (which approval shall not be unreasonably withheld):Buyer, permit or allow the Company to: (ai) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock; (cA) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions (other than distributions to the Sellers for amounts not exceeding their respective U.S. federal income tax liabilities) in cashrespect of, shares, stock, securities or property with respect to any of its capital stock, (B) 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 or (C) purchase, redeem or otherwise acquire any shares of capital stock; provided, however, that stock of the Company shall continue or any other securities thereof or any rights, warrants or options to have the right to distribute Standstill Payments among the Stockholdersacquire any such shares or other securities; (dii) repurchaseissue, redeemdeliver, sell, pledge, dispose of or otherwise acquire, directly or indirectly, encumber any of its capital stock or any securities convertible into into, or exchangeable any rights, warrants or exercisable into options to acquire, any of its such capital stock; (eiii) enter into amend the Company Charter Documents; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any material transaction not other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof, or (B) any assets that would be material, individually or in the aggregate, to the Company, except purchases of supplies and inventory in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stock; (g) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; (hv) authorize capital expenditures in excess sell, lease, mortgage, pledge, grant a Lien on or otherwise encumber or dispose of $25,000 other than axx xx xxx xxxperties or assets, except (A) in the ordinary and usual course of business consistent with past practice; providedpractice or (B) other transactions involving not in excess of $100,000.00 in the aggregate; (vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, howeverissue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, that --------- -------- guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking economic effect of any of the following actions foregoing, except for (including1) working capital borrowings under revolving credit facilities incurred in the ordinary course of business, without limitationand (2) indebtedness incurred to refund, making any capital expenditure in connection therewith): refinance or replace indebtedness for borrowed money outstanding on the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination date hereof, or (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (iB) make any material acquisition ofloans, advances or capital contributions to, or investment investments in, assets, shares, capital stock or other securities of any other person or entity person, other than employees of the Company in the ordinary and usual course of business consistent with past practice; (jvii) except as may be required to satisfy contractual obligations existing as make or incur capital expenditures in the aggregate in excess of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or $400,000.00; (viii) make any material elections under election relating to Taxes or settle or compromise any collective bargaining agreement or Employee Planmaterial Tax liability; (kix) implement pay, discharge or satisfy any change in its accounting principlesclaims, practicesliabilities or obligations (absolute, accrued, asserted or methodsunasserted, contingent or otherwise), other than as may be required by generally accepted accounting principles; andthe payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms of liabilities reflected or reserved against in, or contemplated by, the Company Balance Sheet; (lx) authorize waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (xii) enter into any new collective bargaining agreement; (xiii) change any accounting principle used by it, except for changes conforming to regulations promulgated by the Financial Accounting Standards Board; (xiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $50,000.00, or (B) in consultation and cooperation with Buyer, and, with respect to any such settlement, with the prior written consent of Buyer; (xv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee, except that, the Company may hire additional employees to the extent deemed by its management to be in the best interests of the Company; provided, that the Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees; (B) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Benefit Plan (other than amendments required by law or to maintain the tax qualified status of such plans under the Code); (C) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices); or (D) grant any stock options or stock awards; or (xvi) authorize any of, or commit or agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except as set forth in Exhibit 5.2, and except --------------- for any actions required During the -------------------- ---------------- period from the date of this Agreement to be performed by the Company, or otherwise permitted pursuant to this AgreementEffective Time of the Merger, the Company shall, and shall conduct cause its business generally subsidiaries to, carry on their respective businesses in the usual, regular and ordinary and usual course in all material respects and substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve its intact their current business organizations intact organizations, keep available the services of their current officers and its existing relations employees and preserve their relationships with customers, suppliers, employeeslicensors, independent contractors licensees, distributors and others having business associatesdealings with them. Without limiting the generality of the foregoing, and during the period from the date of this Agreement to the Effective Time of the Merger, the Company shall not do any of the following without the approval of Purchaser (which approval not, and shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify permit any of its outstanding shares of capital stock;subsidiaries to: (ci) (x) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (y) 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 or (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable or exercisable for, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of its shares Common Stock (and associated Rights) upon the exercise of capital stockCompany Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms); (giii) transferamend its certificate of incorporation, lease, license, sell, mortgage, pledge, encumberby-laws or other comparable charter or organizational documents; (iv) acquire or agree to acquire (x) by merging or consolidating with, or dispose by purchasing a substantial portion of any material property or the assets or incur, guarantee, assumeof, or increase by any indebtedness other manner, any business or any corporation, partnership, joint venture, association or other liability business organization or division thereof or (y) any assets that are material, individually or in excess the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of $25,000 inventory (other than real property) in the ordinary and usual course of business consistent with past practice; (hA) authorize capital expenditures grant to any employee, officer or director of Company or any of its subsidiaries any increase in excess of $25,000 other than compensation, except in the ordinary and usual course of business consistent with past practice; providedprior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, however(B) grant to any employee, that --------- -------- the nothing in this Agreement shall be construed to prohibit (officer or require any consent from Purchaser for) the director of Company taking or any of its subsidiaries any increase in severance or termination pay, except to the following actions extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (includingC) enter into any employment, without limitationconsulting, making indemnification, severance or termination agreement with any capital expenditure such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in connection therewith): any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the satisfaction and termination ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation; (vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company's credit line with Xxxxxxx Xxxxx; the termination , except insofar as may have been required by a change in GAAP or other applicable laws or regulations; (and payment vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any outstanding balance) of properties or assets of the Company's corporate credit card; any payments to Zion Credit Corporation Company and its subsidiaries having a fair market value in excess of $50,000, except sales or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. inventory (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than real property) in the ordinary and usual course of business consistent with past practice; (jviii) except as may be required (y) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to satisfy contractual obligations existing as acquire any debt securities of the date hereof and the requirements Company or any of applicable Lawsits subsidiaries, establish, adoptguarantee any debt securities of another person, enter into, make, amend in into any material respect, "keep well" or make other agreement to maintain any material elections under any collective bargaining agreement or Employee Plan; (k) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and (l) authorize financial statement condition of another person or enter into any agreement to take arrangement having the economic effect of any of the actions referred foregoing, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company, in the case of clause (y) or (z) above is in an amount which exceeds $50,000; (ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000; (x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund; (xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party; (xii) except as part of the Transactions as contemplated by this Section.Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or

Ordinary Course. Except as set forth in Exhibit 5.2, and except --------------- for any actions required At all times prior to be performed by the Company, or otherwise permitted pursuant to this AgreementClosing, the Seller Parties shall carry on the Company shall conduct its business generally Business in the ordinary Ordinary Course of Business and usual course in all material respects and to the extent consistent with such business, use all reasonable efforts consistent with past practice and policies to preserve intact the Company’s present business organization, keep available the services of its business organizations intact present officers and key employees and preserve its existing relations relationships with customers, supplierssuppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired as a result of the transactions contemplated hereby, employeesprovided, independent contractors and business associatesfurther, without limitation of the foregoing, and subject to the Company provisions of Section 12.2, that they shall not do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld):not: (a) amend its Certificate of Incorporation (allow Trans-West to undertake any operations, enter into any Contracts, other than as contemplated hereby, or like charter documents) incur any Indebtedness or By-laws;other liabilities or obligations. (b) subdivide, split, combine, consolidateissue or sell, or reclassify contract to issue or sell, any of its outstanding shares of capital stock; (c) declare, set aside or pay any dividend or make any other distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its Trans-West’s capital stock or any securities convertible into or exchangeable for shares of capital stock of Trans-West or exercisable into securities, warrants, options or rights to purchase any of its capital stockthe foregoing; (ec) enter into issue or sell, or contract to issue or sell, any material transaction not membership interest or any other equity in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, Company or any securities convertible into or exchangeable for membership interest or exercisable for, any other equity of the Company or options, putssecurities, warrants, calls, commitments options or rights of any kind to acquire, purchase any of its shares the foregoing; (d) purchase or redeem any membership interests of capital stockthe Company; (e) other than distributions to the Members necessary to distribute cash to pay the Tax obligations of the Members prior to Closing arising from the net income earned by the Company prior to Closing, declare or pay any distributions or agree to make any other distribution with respect to any membership interests of the Company; (f) amend the Company’s Articles of Organization or Operating Agreement; (g) transferincrease the compensation paid to any officer, leasedirector or employee of the Company, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than in the ordinary and usual course Ordinary Course of business consistent with past practiceBusiness; (h) authorize capital expenditures in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; provided, however, that --------- -------- the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of deplete the Company's credit line with Xxxxxxx Xxxxx; the termination ’s working capital or fail to pay any obligation in a timely manner (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations except obligations disputed in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions.good faith), (i) make borrow any material acquisition of, amount or investment in, assets, shares, capital stock incur or other securities of become subject to any other person or entity other than liability except (i) current liabilities incurred in the ordinary Ordinary Course of Business, (ii) liabilities under Contracts entered into in the Ordinary Course of Business; and usual course (iii) borrowings under lines of business consistent with past practicecredit existing on such date; (j) except as may be required to satisfy contractual obligations existing as waive any rights of value or suffer any losses in the date hereof and the requirements Ordinary Course of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee PlanBusiness; (k) implement take any other action or enter into any other transaction (including any transactions with employees, Affiliates, members or their respective Family Affiliates) other than in the Ordinary Course of Business or the transactions contemplated by this Agreement and the Ancillary Agreements; (l) (i) make or grant any increase in any Employee Plan, or amend or terminate any existing Employee Plan, or adopt any new Employee Plan or (ii) make any commitment or incur any liability to any labor organization; (m) make any capital expenditures or commitments therefore outside of the Ordinary Course of Business; (n) make any change in accounting or Tax principles, practices or policies from those utilized in the preparation of the Financial Statements; (o) make any write-off or write-down of or make any determination to write-off or write-down any of its assets and properties; (p) make any change in its accounting principlesgeneral pricing practices or policies or any change in its credit or allowance practices or policies, practicesincluding, but not limited to, accelerating the collection of accounts receivable or methods, other than as may be required by generally accepted accounting principles; andobligations owed to the Company in the Ordinary Course of Business. (lq) authorize or enter into any agreement amendment, modification, termination (partial or complete) or grant any waiver under or give any consent with respect to take any Contract that is required to be disclosed in the schedules to this Agreement; or (r) commence or terminate any line of the actions referred to in this Sectionbusiness.

Ordinary Course. Except During the period from the date of this Formation Agreement to the Closing Date (except as set forth in Exhibit 5.2otherwise specifically contemplated by the terms of this Formation Agreement), GE Capital will cause Global to, and except --------------- for any actions required to be performed by the CompanyGlobal will, or otherwise permitted pursuant to this Agreement, the Company shall conduct carry on its business generally in the usual, regular and ordinary and usual course in all material respects and substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organizations intact organizations, keep available the services of its current officers and employees and preserve its existing relations relationships with customers, suppliers, employeeslicensors, independent contractors licensees, distributors and others having business associatesdealings with it, in each case consistent with past practice, to the end that its goodwill and ongoing business shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and the Company except as otherwise expressly contemplated by this Formation Agreement, Global shall not, and GE Capital shall not do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld):permit Global to: (ai) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock; (cA) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, (B) 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 or (C) purchase, redeem or otherwise acquire any shares of capital stock of Global or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable or exercisable forinto, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any of its shares of capital stocksuch shares, voting securities or convertible securities; (giii) transferamend its Certificate of Incorporation or By-laws; (iv) except for those contemplated transactions described on Schedule 4.2(a)(iv) attached hereto, acquire or agree to acquire any business, corporation, partnership, association, joint venture, limited liability company or other entity or division thereof involving the payment of consideration in excess of $1,000,000, individually or in the aggregate, without the written consent of Weatxxxxxxx, xxich consent shall not be unreasonably withheld; (v) incur any Indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument, except for such borrowings that would be repaid in full at Closing; (vi) sell, lease, license, sell, mortgage, pledge, encumber, pledge or granx x Xxxx xx or otherwise encumber or dispose of any material property of its properties or assets assets, except (A) sales or incur, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than leases in the ordinary and usual course of business consistent with past practice; , (hB) authorize capital expenditures as may be required under Global's existing credit or debt facilities, (C) with respect to purchase money security interests, and (D) other transactions not in excess of $25,000 other than 1,000,000 in the ordinary and usual course of business consistent with past practice; provided, however, that --------- -------- the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions.aggregate; (ivii) make any change in any election relating to Taxes or settle or compromise any Tax audit or controversy relating to Global or the Global Compression Business; (viii) except for those contemplated corporate transactions described on Schedule 4.2(a)(viii) attached hereto, adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (ix) change any material acquisition accounting principle used by it, except as required by GAAP; or (x) authorize any of, or investment in, assets, shares, capital stock commit or other securities of any other person or entity other than in the ordinary and usual course of business consistent with past practice; (j) except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee Plan; (k) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and (l) authorize or enter into any agreement agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except as (i) otherwise specifically provided in this Agreement, (ii) as set forth in Exhibit 5.2Section 5.1 of the Company Disclosure Letter or (iii) otherwise consented to in writing by Xxxxxx and Merger Sub, and except --------------- for any actions required from the date of this Agreement to be performed by the Company, or otherwise permitted pursuant to this AgreementEffective Time, the Company shall will conduct its business generally operations only in the ordinary and usual course in all material respects of business and use all will preserve intact its present business organization, take reasonable efforts to keep available the services of its present officers, employees and consultants and to preserve its business organizations intact and its existing relations present relationships with customerslicensors, licensees, suppliers, employees, independent contractors and others with whom the Company has significant business associatesrelationships. Without limiting the generality of the foregoing, and except (x) as otherwise specifically provided in this Agreement or (y) as set forth in Section 5.1 of the Company shall Disclosure Letter, the Company will not do any directly or indirectly, from the date of this Agreement to the following Effective Time, without the approval prior written consent of Purchaser (which approval shall not be unreasonably withheld):Xxxxxx and Merger Sub: (a) amend its propose or adopt any amendment to or otherwise change the Certificate of Incorporation (or like charter documents) or By-lawsthe Bylaws; (b) subdivideauthorize for issuance, sale, pledge, disposition or encumbrance, or issue, sell, pledge, dispose of or encumber (except (x) pursuant to the exercise of Company Stock Options, outstanding on the date hereof, under the Company Stock Option Plans and (y) the issuance of shares pursuant to the ESPP in accordance with past practice or as contemplated by Section 2.2) any of its shares or any of its other securities or any interest relating to or whose value is dependent on the value of any equity interest in the Company or issue any securities convertible into or exchangeable for, options, warrants to purchase, scrip, rights to subscribe for, calls or commitments of any character whatsoever relating to, or enter into any contract, understanding or arrangement with respect to the issuance of, any of its shares or any of its other securities, or enter into any arrangement or contract with respect to the purchase or voting of shares of its shares, or adjust, split, combinereacquire, consolidateredeem, combine or reclassify any of its outstanding shares of securities, or make any other changes in its capital stockstructure; (ci) except in the ordinary course of business, incur (contingently or otherwise) any material liability or other material obligation including, without limitation, any indebtedness for borrowed money, enter into any guarantee of any such obligation of another person or mortgage, pledge or subject to any lien, charge or other encumbrance of their assets, properties or business, or (ii) make any loans, advances or capital contributions to, or investments in, any other person other than advances to employees, for reasonable expenses, related to Company business, in the ordinary course of business; (d) enter into any transaction, commitment, contract, agreement, license or lease, amend or affirmatively renew any such contracts, commitments, licenses or leases other than those that are (i) not material or (ii) in the ordinary course of business and do not involve affiliates of the Company; (e) sell or otherwise dispose of or lease any material part of its properties or assets, including but not limited to the sale or license of any real estate or Intellectual Property, or purchase or otherwise acquire or lease material properties or assets (including real estate), except purchases, sales and other dispositions in the ordinary course of business (excluding sales or other dispositions of assets held for sale in excess of $100,000 per item), or acquire or agree to acquire by merging or consolidating with, or by purchasing all, or substantially all, of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof; (f) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cashrespect of, its outstanding shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (di) repurchase(A) make any change, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not other than in the ordinary course of its business consistent with past practice; (f) issuebusiness, sell, pledge, dispose of, in the compensation payable or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, to become payable to any of its capital stockemployees, agents or consultants or (B) make any securities convertible into change in the compensation payable or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, become payable to any of its shares officers or directors, (ii) enter into or amend any employment, consulting, severance, termination or similar agreement; (iii) adopt any new Plan or amend any existing Plan; (iv) make any loans to any of capital stock; (g) transferits officers, leasedirectors, licenseemployees, sell, mortgage, pledge, encumber, agents or dispose consultants or any changes in its existing borrowing or lending arrangements for or on behalf of any material property of such persons, whether contingent on the Closing or assets otherwise; or incur(v) except to the extent permitted by Section 2.2 hereof, guarantee, assume, or increase take any indebtedness or other liability in excess of $25,000 other than in action to cause to be exercisable any otherwise unexercisable Company Stock Option under the ordinary and usual course of business consistent with past practiceCompany Stock Option Plans; (h) authorize capital expenditures in excess of $25,000 other than make any material changes in the ordinary and usual course type or amount of business consistent with past practice; provided, however, that --------- -------- the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions.its insurance coverages; (i) make any material acquisition oftax election (unless required by law) or settle or compromise any material income tax liability of the Company, except if such action is taken in the ordinary course of business and Xxxxxx shall have been provided reasonable prior notice thereof. The Company shall consult with Xxxxxx before filing or investment incausing to be filed any material Tax Return of the Company or before executing or causing to be executed any agreement or waiver extending the period for assessment or collection of any material Taxes of the Company; (j) cancel any debts or waive, assets, shares, capital stock release or relinquish any material contract rights or other securities of any other person or entity material rights other than in the ordinary and usual course of business consistent with past practice; (j) except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee Planbusiness; (k) implement knowingly take or agree or commit to take any change action that would result in its accounting principles, practices, any of the Company's representations or methods, other than warranties hereunder qualified as may be required by generally accepted accounting principlesto materiality being untrue and any such representations and warranties that are not so qualified being untrue in any material respect; andor (l) authorize make, or enter into commit to make, any agreement to take any capital expenditure in excess of $100,000 including, without limitation, for the actions referred to in this Sectionpurchase of real estate.

Ordinary Course. Except as set forth in Exhibit 5.26.2, and except --------------- for any actions required to be performed by the Company, Dakota or Merger Corp or otherwise permitted pursuant to this Agreement, the Company Dakota shall (and shall cause each Dakota Group Member to) conduct its business generally only in the ordinary and usual course in all material respects and use all reasonable efforts to preserve its business organizations intact and its existing relations with customers, suppliers, employees, independent contractors and business associates, and the Company Dakota shall not (and shall cause each Dakota Group Member not to) do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld):following: (a) sell or pledge or agree to sell or pledge any capital stock owned by it in any of its Subsidiaries; (b) amend its Certificate of Incorporation (or like charter documents) or By-laws; (bc) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock; (cd) declare, set aside or pay any dividend or make any other distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (de) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (ef) enter into any material transaction not in the ordinary course of its business consistent with past practice; (fg) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stockstock other than Dakota Shares or securities directly or indirectly convertible into or exchangeable or exercisable for Dakota Shares in connection with the offering referenced in Section 9.7; (gh) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase modify any indebtedness or other liability other than in excess the ordinary and usual course of $25,000 business consistent with past practice, other than convertible debentures or notes issued by Dakota in connection with the offering referenced in Section 9.7; (i) authorize capital expenditures other than in the ordinary and usual course of business consistent with past practice; (h) authorize capital expenditures in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; provided, however, that --------- -------- the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (ij) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than its wholly-owned Subsidiaries or in the ordinary and usual course of business consistent with past practice; (jk) except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable LawsLaw, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee Plan; (kl) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and (lm) authorize or enter into any agreement to take any of the actions referred to in this Section.

Ordinary Course. Except as set forth in Exhibit 5.2, and except --------------- for any actions required to be performed by the Company, or otherwise permitted pursuant to this Agreement, the Company shall conduct will carry on its business generally in the ordinary and usual course Ordinary Course of Business in all material respects and substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable efforts consistent with past practice and policies to preserve intact its present business organizations intact organizations, keep available the services of its present officers, consultants, and employees and preserve its existing relations relationships with customers, suppliers, employees, independent contractors and business associatesdistributors, and others having business dealings with it. Company will promptly notify Parent of any event or occurrence or emergency which is not in the Ordinary Course of Business of Company and which is material and adverse to Company's business condition. The foregoing notwithstanding, Company will not: (A) (i) increase the compensation payable to, or to become payable to, any employee, director or executive officer (except as permitted by Section 4.5); (ii) grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or employee (except as permitted by Section 4.5); (iii) establish, adopt, enter into, amend, modify or terminate any Employee Benefit Plan or arrangement except as may be required by applicable Law; or (iv) hire any person other than persons to replace existing employees who cease to be employed with the Company shall not do any of prior to the following without Closing, with such replacement persons being hired at the approval of Purchaser (which approval shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-lawssame total cost and salary as the former whom they are replacing; (bB) subdividedeclare or pay any dividend on or make any other distribution in respect of, split, combine, consolidate, or reclassify any of its outstanding shares of its capital stock; (cC) declare, set aside or pay any dividend or make any other distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (di) repurchase, redeem, purchase or otherwise acquire, directly or indirectly, acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, or exercisable into any options, warrants or conversion or other rights to acquire any shares of its capital stock or any such securities or obligations; (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock; (eD) enter into any material transaction not in the ordinary course of its business consistent with past practice; (fi) issue, deliver, award, grant or sell, pledge, dispose of, or encumber, or authorize or propose the issuance, saledelivery, award, grant or sale (including the grant of any Security Interests, Liens, claims, pledges, limitations in voting rights, charges or other Encumbrances) of, any shares of any class of its capital stock (including shares held in treasury), any securities convertible into or exercisable or exchangeable for any other shares, or any rights, warrants or options to acquire, any such shares; and (ii) amend or otherwise modify the terms of any such rights, warrants or options the effect of which will be to make such terms more favorable to the holders thereof; (E) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in, all or a portion of the Assets of, or by any other manner, any corporation, partnership, association or other business, organization or division thereof, or otherwise acquire or agree to acquire any Assets of any other person (other than the purchase of Assets from suppliers or vendors in the Ordinary Course of Business) which are material, individually or in the aggregate, to the Company; (F) sell, lease, license, exchange, mortgage, pledge, dispositiontransfer or otherwise dispose of, or encumbrance agree to sell, lease, license, exchange, mortgage, pledge, transfer or otherwise dispose of, any of its capital stock, material Assets; (G) propose or adopt any securities convertible into amendments to its Articles of Incorporation or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, its Bylaws; (H) change any of its shares methods of capital stockaccounting except as may be required by Law or GAAP; (gI) transfercreate, or permit the creation of, any Lien upon any Assets outside the Ordinary Course of Business; (J) enter into any employment Contract or collective bargaining agreement, or modify the terms of any existing such Contract or agreement; (K) sell, lease, license, sell, mortgage, pledge, encumber, transfer or dispose of assign any material property or assets or incur, guarantee, assume, or increase Assets; (L) make any indebtedness or other liability in excess of $25,000 capital expenditures other than in the ordinary and usual course Ordinary Course of business consistent with past practice; (h) authorize capital expenditures in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; provided, however, that --------- -------- the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than in the ordinary and usual course of business consistent with past practice; (j) except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respectBusiness, or make any material elections under any collective bargaining agreement or Employee Plancapital expenditures which in the aggregate exceed $10,000; (kM) implement any change in its accounting principlesamend or renew, practices, or methods, other than as may be required by generally accepted accounting principles; and (l) authorize or enter into any agreement Contract involving operations outside of the United States; (N) enter into any Contract outside the Ordinary Course of Business; or (O) take or agree to take any action that would or is reasonably likely to result in any representations and warranties of the actions referred to Company set forth in this SectionAgreement being untrue or in any of the conditions to the Merger not being satisfied.

Ordinary Course. Except During the period from the date of this Agreement to the Effective Time of the Merger (except as set forth in Exhibit 5.2, and except --------------- for any actions otherwise specifically required to be performed by the Company, or otherwise permitted pursuant to terms of this Agreement), the Company Parent shall conduct and shall cause its business generally subsidiaries to carry on its respective businesses in the usual, regular and ordinary and usual course in all material respects and substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve its intact their current business organizations intact organizations, keep available the services of their current officers and its existing relations employees and preserve their relationships with customers, Governmental Entities, suppliers, employeesinsurers, independent contractors licensors, licensees, distributors and others having business associatesdealings with them, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent reasonably possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly set forth in this Agreement, during such period, the Company Parent shall not, and shall not do any of the following without the approval of Purchaser (which approval shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify permit any of its outstanding shares of capital stock;subsidiaries to: (ci) (A) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cashrespect of, shares, any of their capital stock, securities (B) split, combine or property with respect to reclassify any of its their capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of their capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock; providedstock of the Parties or any of their subsidiaries or any other securities thereof or any rights, however, that the Company shall continue warrants or options to have the right to distribute Standstill Payments among the Stockholdersacquire any such shares or other securities; (dii) repurchaseissue, redeemdeliver, sell, pledge or otherwise acquire, directly or indirectlyencumber any shares of their capital stock, any of its capital stock other voting securities or any securities convertible into any such shares; or exchangeable issue, deliver, sell or exercisable grant any rights, warrants or options to acquire any such shares, voting securities or convertible securities; or issue, deliver, sell or grant any stock appreciation rights, phantom stock or similar rights or enter into any agreement to do any of its capital stockthe foregoing, except for the issuance of Parent Shares upon the exercise of the Parent Options or the Parent Warrants, all as outstanding on the date of this Agreement in accordance with their current terms; (eiii) enter into amend their Certificates or Articles of Incorporation, By-laws or other comparable charter or organizational document; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any material transaction not other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (B) any assets that would be material, individually or in the aggregate, to the Parent and its subsidiaries taken as a whole, except purchases of supplies and inventory in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stock; (g) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; (hv) authorize capital expenditures in excess sell, lease, mortgage, pledge, xxxxx x Xxxx on or otherwise encumber or otherwise dispose of $25,000 other than any of their properties or assets, except sales of inventory in the ordinary and usual course of business consistent with past practice; provided, however, that --------- -------- the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than in the ordinary and usual course of business consistent with past practice; (jvi) except as may be required (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to satisfy contractual obligations existing as acquire any debt securities of the date hereof Parties or any of their subsidiaries, guarantee any debt securities of another person, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (vii) make or incur any new capital expenditure or expenditures not set forth in the Parent's capital budget for fiscal 1998, or in an amount in excess of that set forth for any such item in such capital budgets (a true and correct copy of which budget has been previously furnished to the requirements other Parties), except for capital expenditures not in excess of applicable Laws$5,000 as to any single item and $10,000 in the aggregate; (viii) make any election relating to Taxes or settle or compromise any Tax liability; (ix) pay, establishdischarge or satisfy any claims, adoptliabilities or obligations (absolute, enter intoaccrued, makeasserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Parent or incurred in the ordinary course of business consistent with past practice; (x) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Parent or any of its subsidiaries is a party; (xi) terminate or amend in any material respectrespect any contract or agreement material to the Parent; (xii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or make reorganization; (xiii) except as expressly permitted by this Agreement, enter into any material elections under new collective bargaining agreement or any successor collective bargaining agreement to any collective bargaining agreement or Employee Plandisclosed in Section 4.2(t) of the Disclosure Schedule; (kxiv) implement change any material accounting principle used by the Parent, except insofar as any such change in its accounting principles, practices, or methods, other than as may be is required by generally accepted accounting principles; andprinciples or by the rules and regulations of the SEC; (lxv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises: (A) of litigation where the amount paid in settlement or compromise does not exceed $10,000, or (B) in consultation and cooperation with the Company, and, with respect to any such settlement, with the prior written consent of the Company; (xvi) authorize any of, or commit or agree to take any of, the foregoing actions; or (xvii) excluding inventory purchased for resale in the ordinary course of business, the Parent will not enter into any agreement to take any contracts or other material business obligations or commitments in excess of the actions referred to in this Section$10,000, or for a term longer than one year.

Ordinary Course. Except as set forth in Exhibit 5.2, and except --------------- for any actions required During the period from the date of this Agreement to be performed by the Company, or otherwise permitted pursuant to this AgreementEffective Time of the Merger, the Company shall, and shall conduct cause its business generally subsidiaries to, carry on their respective businesses in the usual, regular and ordinary and usual course in all material respects and substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve its intact their current business organizations intact organizations, keep available the services of their current officers and its existing relations employees and preserve their relationships with customers, suppliers, employeeslicensors, independent contractors licensees, distributors and others having business associatesdealings with them to the end that their goodwill and ongoing businesses shall be unimpaired at the Effective Time of the Merger. Without limiting the generality of the foregoing, and during the period from the date of this Agreement to the Effective Time of the Merger, the Company shall not do any of the following without the approval of Purchaser (which approval not, and shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify permit any of its outstanding shares of capital stock;subsidiaries to: (ci) (x) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cashrespect of, shares, stock, securities or property with respect to any of its shares capital shares, other than dividends and distributions by any direct or indirect wholly owned subsidiary of capital stock; provided, however, that the Company shall continue to have its parent (except to regular quarterly dividends on the right to distribute Standstill Payments among the Stockholders; Shares declared and paid at times consistent with past practice in an amount not in excess of $0.05 per Share per quarter), (dy) repurchasesplit, redeem, combine or otherwise acquire, directly or indirectly, reclassify any of its capital stock or issue or authorize the issuance of any other securities convertible into in respect of, in lieu of or exchangeable in substitution for shares of its capital stock or exercisable into (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its capital stocksubsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (fii) issue, deliver, sell, pledge, dispose of, pledge or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance ofotherwise encumber any capital shares, any of its capital stock, other voting securities or any securities convertible into or exchangeable or exercisable forinto, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any such shares, voting securities or convertible securities (other than (x) the issuance of its shares Shares upon the exercise of capital stockEmployee Options outstanding on the date of this Agreement in accordance with their present terms and (y) the issuance of Shares upon conversion of the Convertible Debentures); (giii) transferamend its Articles (Certificate) of Incorporation, lease, license, sell, mortgage, pledge, encumberBy-laws or other comparable charter or organizational documents; (iv) acquire or agree to acquire (x) by merging or consolidating with, or dispose by purchasing a substantial portion of any material property or the assets or incur, guarantee, assumeof, or increase by any indebtedness other manner, any business or any corporation, partnership, joint venture, association or other liability business organization or division thereof or (y) any assets that are material, individually or in excess the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of $25,000 other than inventory in the ordinary and usual course of business consistent with past practice; (h) authorize capital expenditures in excess of $25,000 other than practice or in the ordinary and usual course 29 24 fulfillment of business consistent with past practice; provided, however, that --------- -------- the nothing contracts in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than in the ordinary and usual course of business consistent with past practice; (j) except as may be required to satisfy contractual obligations existing as of existence on the date hereof and the requirements copies of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee Planwhich have been made available to Parent; (k) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and (l) authorize or enter into any agreement to take any of the actions referred to in this Section.

Ordinary Course. Except as set forth in Exhibit 5.2During the period from the date of this Agreement to the Closing Date, Holdings and except --------------- for any actions required FDESI covenant that FDESI and Holdings (with respect to be performed by the Company, or otherwise permitted pursuant to this Agreement, the Company business of FDESI) shall conduct its business generally carry on their respective businesses in the usual, regular and ordinary and usual course in all material respects and substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve its intact their current business organizations intact organizations, keep available the services of their current officers and its existing relations employees and preserve their relationships with customers, suppliers, employeeslicensors, independent contractors licensees, distributors and others having business associatesdealings with them to the end that their goodwill and ongoing businesses shall, and in all material respects, be 44 unimpaired at the Company shall not do any Closing Date. Without limiting the generality of the following without foregoing, during the approval period from the date of Purchaser (which approval this Agreement to the Closing Date, FDESI shall not be unreasonably withheld):not: (ai) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify any of its outstanding shares of capital stock; (cx) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, (y) 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 or (z) purchase, redeem or otherwise acquire any shares of capital stock of FDESI or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable or exercisable forinto, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any of its shares of capital stocksuch shares, voting securities or convertible securities; (giii) transferamend its certificate of incorporation, by-laws or other comparable charter or organizational documents or reincorporate in any jurisdiction; (iv) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, except for such actions undertaken in the ordinary course of business and consistent with past practice and involving no more than $250,000 in the aggregate or (y) any assets that are material, individually or in the aggregate, to FDESI; (v) sell, lease, licensemortgage or otherwise encumber or subject to any Lien or otherwise dispose of, sellany of its properties or assets, mortgage, pledge, encumber, or dispose except sales of any material property properties or assets or incur, guarantee, assume, or increase any indebtedness or other liability no longer used by FDESI in excess the conduct of $25,000 other than its business and sales of inventory in the ordinary and usual course of business consistent with past practice; (hvi) authorize capital expenditures (y) incur any Indebtedness for borrowed money or guarantee any such Indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of FDESI, guarantee any debt securities of another person, enter into any "keep well" other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowing on an inter-company basis not in excess of $25,000 other than 1,000,000 in the aggregate incurred in the ordinary and usual course of business consistent with past practice; provided, however, that --------- -------- the nothing endorsement of checks in this Agreement shall be construed to prohibit the normal course of business and the extension of credit in the normal course of business or (or require any consent from Purchaser for) the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (iz) make any material acquisition ofloans, advances or capital contributions to, or investment investments in, assetsany other person, sharesother than to FDESI; (vii) make or agree to make any new capital expenditures or commitments, purchases of property or acquisitions of other businesses, capital stock assets or other securities properties which, individually, is in excess of $50,000 or, in the aggregate, are in excess of $250,000 or enter into any other person or entity new real property lease; (viii) make any Tax election (other than in the ordinary course of preparing and usual filing its Tax returns) or settle or compromise any material Tax liability; (ix) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, or liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of FDESI included in the FDESI Disclosure Letter or incurred after the date of such financial statements in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality or similar agreement to which FDESI is a party; (jx) except adopt any shareholder rights or similar plan or take any other action with the intention of, or which may have the effect of, discriminating against the Company as may be required to satisfy contractual obligations existing as a shareholder of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, FDESI (or any successor); (xi) adopt or amend in any material respect, or make respect any material elections under any collective bargaining agreement or Employee Plan; (kxii) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and (l) authorize or enter into any agreement contract, agreement, plan or arrangement covering any director, officer or employee providing for the making of any payments, the acceleration of vesting of any benefit or right or any other entitlement contingent upon (A) the consummation of the transactions contemplated hereby or by the Option Agreement or any acquisition by the Company of securities of FDESI (whether by merger, tender offer, private or market purchases or otherwise) or (B) the termination of employment after the occurrence of any such contingency if such payment, acceleration of entitlement would not have been provided but for such contingency; or amend any existing contract, agreement, plan or arrangement to so provide. (xiii) authorize any of, or commit or agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except as set forth in Exhibit 5.2GEXA shall, and except --------------- for any actions required to be performed by the Companyshall cause its Subsidiaries to, or otherwise permitted pursuant to this Agreement, the Company shall conduct its business generally carry on their respective businesses in the usual, regular and ordinary and usual course in all material respects substantially the same manner as heretofore conducted and use all its commercially reasonable efforts to preserve its intact their current business organizations intact organizations, retain and its existing relations keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, employeescontractors, independent contractors distributors, licensors, licensees and others having business associates, dealings with them to the end that their goodwill and the Company shall not do any of the following without the approval of Purchaser (which approval ongoing businesses shall not be unreasonably withheld): impaired in any material respect at the Closing Date (ait being understood and agreed by Holdings and GEXA that this Section 4.2(a) amend its Certificate is a material covenant and FPL Group and Holdings is relying on GEXA’s compliance with the provisions of Incorporation (or like charter documentsthis covenant between the date hereof and the Closing Date for purposes of Section 6.2(b) or By-laws; (b) subdividehereof). Without limiting the generality of the foregoing, splitand except as otherwise required by law, combine, consolidate, or reclassify neither GEXA nor any of its outstanding shares Subsidiaries shall, without the prior written consent of capital stock;Holdings: (ci) (x) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, whether payable in cash, stock, property or otherwise (except dividends and distributions by a direct or indirect wholly owned Subsidiary of GEXA to GEXA), (y) 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 or (z) purchase, redeem or otherwise acquire any shares of capital stock of GEXA or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) authorize for issuance, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into or exchangeable or exercisable forinto, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) (other than (x) issuances upon exercise of its shares stock options or warrants outstanding on the date hereof and listed in Section 3.1(c) of capital stockthe GEXA Disclosure Schedule, and (y) issuances of Continental Shares in the ordinary course of business, consistent with past practices and in accordance with the Continental Agreement); (giii) transferexcept as set forth on Section 4.2(a)(iii) of the GEXA Disclosure Schedule, adopt or amend in any material respect any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, warrant, restricted stock, pension, retirement, employment or other employee benefit agreement, trust, plan or other arrangement for the benefit or welfare of any director, officer or employee of GEXA or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of GEXA or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of GEXA or any of its Subsidiaries; (iv) amend its articles of incorporation, by-laws or equivalent organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of GEXA or any of its Subsidiaries; (v) except as set forth on Section 4.2(a)(v) of the GEXA Disclosure Schedule, sell, lease, license, sell, mortgage, pledge, encumber, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any material property of its properties or assets other than (i) disposals that do not exceed $50,000 in the aggregate and that are made in the ordinary course of its business or incur, guarantee, assume, or increase (ii) the sale of electricity to its customers in the ordinary course of business; (vi) incur any indebtedness or other liability in excess of $25,000 Debt (other than in the ordinary and usual course of business consistent with past practicepractices associated with the purchase and sale of electricity and transmission and distribution under existing credit facilities), issue or sell any debt securities or warrants or other rights to acquire any debt securities of GEXA or any of its Subsidiaries, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person, or make any loans, advances or capital contributions to, or investments in, any other Person, other than to GEXA or any direct or indirect wholly owned Subsidiary of GEXA; (hvii) authorize change any accounting principle used by it, unless required by the SEC or the Financial Accounting Standards Board or change any credit practices or collection policies; (viii) enter into any transaction or series of transactions with any Affiliate of GEXA (other than a wholly owned Subsidiary of GEXA) or otherwise that would be required to be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to GEXA or such Subsidiary as would be obtainable by GEXA or such Subsidiary at the time of such transaction with a Person that is not an Affiliate of GEXA; (ix) enter into or amend, modify, supplement, terminate, assign or waive any material provision of any Customer Contract with any customer or potential customer, provided that GEXA and its Subsidiaries may (a) terminate Customer Contracts for default or nonpayment in the ordinary course of business consistent with past practices, and (b) enter into, modify, amend or supplement Customer Contracts in the ordinary course of business consistent with past practices if the terms of such contracts, agreements or arrangements as entered into, amended, modified, or supplemented do not differ in any material adverse respect from the terms set forth in the forms of client contracts attached to Section 4.2(a)(ix) of the GEXA Disclosure Schedule; (x) make any capital expenditures in excess of $25,000 50,000 individually or $250,000 in the aggregate, or, in either case, enter into any binding commitment or contract to make such expenditures; (xi) make any tax election or settle or compromise any tax liability or refund, except as would not reasonably be expected to have a Material Adverse Effect as to GEXA; (xii) except as contemplated by Section 6.2(g) of this Agreement, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $100,000, net of any insurance benefit to GEXA, in the aggregate, other than the payment, discharge or satisfaction in the ordinary and usual course of business consistent with past practice; providedpractice or liabilities reflected in the GEXA SEC Documents incurred in the ordinary course of business and consistent with past practices; (xiii) settle or compromise any pending or threatened suit, however, that --------- -------- the nothing in action or claim relating to this Agreement shall be construed and the transactions contemplated hereby; (xiv) commit or agree in writing or otherwise to prohibit do any act restricted by this Section 4.2; (or require xv) fail to maintain insurance coverages as contemplated by Section 3.1(bb) and file and prosecute any consent from Purchaser forclaims thereunder relating the business of GEXA and its Subsidiaries; (xvi) fail to invest available cash balances, to the Company taking any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees extent not otherwise required by the Stockholders or Xxxx Xxxxx terms of the Company's obligations to such persons or entities; providedGEXA’s existing credit facilities, --------- further, in investments that the Stockholders shall promptly notify -------- Purchaser of such actionswould qualify as Permitted Investments. (ixvii) make (A) grant any waiver of any material acquisition ofterm under, (B) give any material consent with respect to, (C) assign, terminate or amend, in any material respect, any Material Contract (including without limitation the top 100 Customer Contracts) or GEXA Permit, or investment inallow a GEXA Permit to lapse or terminate or fail to renew any GEXA Permit; (xviii) subject to (xvii) and except for Customer Contracts, assetsenter into, sharesterminate, capital stock assign or other securities of amend any other person or entity Contract other than in the ordinary and usual course of business, provided that, if the ordinary course of business consistent with past practice; (j) except as may exception applies, such actions shall only be required to satisfy contractual obligations existing as permitted if the Contract involves total consideration of less than $50,000 in the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or make any material elections under any collective bargaining agreement or Employee Plan; (k) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principlesaggregate; and (lxix) authorize engage in any practices, take any action, or enter into any agreement transaction that would result in any misrepresentation or breach of warranty under Section 3.1 of this Agreement; and (xx) fail to take any balance its purchases and sales of electricity in accordance with the balancing policy of the actions referred to board of directors of GEXA as set forth in this Sectionthe GEXA board resolution dated August 26, 2004.

Ordinary Course. Except as set forth in Exhibit 5.2The Company shall, and except shall cause its --------------- for any actions required to be performed by the CompanySubsidiaries to, or otherwise permitted pursuant to this Agreement, the Company shall conduct its business generally carry on their respective businesses in the usual, regular and ordinary and usual course in all material respects substantially the same manner as heretofore conducted and use all reasonable its best efforts to preserve its intact their current business organizations intact organizations, keep available the services of their current officers and its existing relations employees and preserve their relationships with customers, suppliers, employeescontractors, independent contractors distributors, licensors, licensees and others having business associates, dealings with them to the end that their goodwill and the Company shall not do any of the following without the approval of Purchaser (which approval ongoing businesses shall not be unreasonably withheld): (a) amend its Certificate impaired in any material respect at the Closing Date. Without limiting the generality of Incorporation (or like charter documents) or By-laws; (b) subdividethe foregoing, splitand except as otherwise required by law, combine, consolidate, or reclassify neither the Company nor any of its outstanding shares of capital stock;Subsidiaries shall: (ci) (x) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectlyof, any of its capital stock (except dividends and distributions by a direct or indirect wholly-owned Subsidiaries of the Company to its parent), (y) 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 or (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries or any other securities thereof of any rights, warrants or options to acquire any such shares or other securities; (ii) except for the exercise by the Company of the Goldwyn Option pursuant to the Option 40 Agreement dated as of April 13, 1993 by and among the Company, Xxxxxx Xxxxxxx, Jr. and The Xxxxxx Xxxxxxx Jr. Trust (the "Option Exercise"), authorize for issuance, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into into, or exchangeable any rights, warrants or exercisable into options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) other than isssuances upon exercise of its capital stockemployee and director stock options issued pursuant to employee and non-employee director stock option plans outstanding on the date hereof and listed in Section 3.1(c) of the Company Disclosure Schedule; (eiii) enter into any material transaction not except with respect to annual bonuses made in the ordinary course of its business consistent with past practice; (f) issuepractice and except as contemplated by this Agreement, selladopt or amend in any material respect any bonus, pledgeprofit sharing, dispose ofcompensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or encumberother employee benefit agreement, trust, plan or authorize other arrangement for the benefit or propose welfare of any director, officer or employee of the issuance, sale, pledge, disposition, Company or encumbrance of, any of its capital stock, Subsidiaries or increase in any securities convertible into manner the compensation or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights fringe benefits of any kind to acquiredirector, officer or employee of the Company or any of its shares of capital stock; (g) transfer, lease, license, sell, mortgage, pledge, encumber, Subsidiaries or dispose pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any material property director, officer or assets employee of the Company or incurany of its Subsidiaries (in each case, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than except with respect to employees in the ordinary and usual course of business consistent with past practice); (hiv) authorize capital expenditures amend its certificate of incorporation, by-laws or equivalent organizational documents or alter through merger, liquidation, reorganization, restructuring or in excess any other fashion the corporate structure or ownership of $25,000 any Subsidiary of the Company; (v) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material properties or assets; (vi) acquire or agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other than manner, any business or any corporation, partnership, joint venture, association or other business organization or 41 division thereof or (y) any assets that are material, individually or in the ordinary and usual course of business consistent with past practice; providedaggregate, however, that --------- -------- the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking and its Subsidiaries taken as a whole; (vii) except for borrowings permitted under credit facilities filed as exhibits to the Company SEC Documents, incur any Debt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial condition of another Person or enter into any arrangement having the economic effect of any of the following actions (including, without limitation, making any capital expenditure in connection therewith): the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than in the ordinary and usual course of business consistent with past practice; (j) except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respectforegoing, or make any material elections under loans, advances or capital contributions to, or investments in, any collective bargaining agreement other Person, other than to the Company or Employee Planany direct or indirect wholly-owned Subsidiary of the Company; (kviii) implement change any change in its accounting principlesprinciple used by it, practices, or methods, other than as may be unless required by generally accepted accounting principlesthe SEC or the Financial Accounting Standards Board; and (lix) authorize or except for the Option Exercise, enter into any agreement to take transaction or series of transactions with any Affiliate of the actions referred Company (other than a wholly-owned Subsidiary of the Company) or otherwise that would be required to in this Sectionbe disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to the Company or such Subsidiary as would be obtainable by the Company or such Subsidiary at the time of such transaction with a Person that is not an Affiliate of the Company.

Ordinary Course. Except During the period from the date of this Agreement to the Closing Date (except as set forth in Exhibit 5.2otherwise specifically contemplated by the terms of this Agreement), each Company shall, and except --------------- for any actions required to be performed by the CompanySeller shall cause each Company to, or otherwise permitted pursuant to this Agreement, the Company shall conduct carry on its business generally businesses in the usual, regular, and ordinary and usual course in all material respects and substantially the same manner as conducted at the date hereof, and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organizations intact organization, keep available the services of its current officers and employees and preserve its existing relations with relationships with, customers, suppliers, employeeslicensors, independent contractors and business associateslicensees, distributors, and others having business dealings with the Company Company, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement, prior to the Closing Date the Companies will not, and Seller will not, without the prior written consent of Buyer, permit or allow the Companies to: (i) (A) declare, set aside, or pay any dividends on, or make any other distributions (other than distributions to the Seller for amounts not do exceeding their respective income tax liabilities) in respect of, any of the following without the approval of Purchaser its capital stock, (which approval shall not be unreasonably withheld): (aB) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify any of its outstanding 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; stock or (cC) declare, set aside or pay any dividend or make any other distribution payable in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchasepurchase, redeem, or otherwise acquireacquire any shares of capital stock of each Company or any other securities thereof or any rights, directly warrants or indirectlyoptions to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge, dispose of, or otherwise encumber any of its capital stock or any securities convertible into into, or exchangeable any rights, warrants or exercisable into options to acquire, any of its such capital stock; (eiii) enter into amend the Company Charter Document; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or assets of, or by any material transaction not other manner, any business or any corporation, partnership, association, joint venture, limited liability company, or other entity or division thereof, or (B) any assets that would be material, individually or in the aggregate, to each Company, except purchases of supplies and inventory in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, or any securities convertible into or exchangeable or exercisable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any of its shares of capital stock; (g) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of any material property or assets or incur, guarantee, assume, or increase any indebtedness or other liability in excess of $25,000 other than in the ordinary and usual course of business consistent with past practice; (hv) authorize capital expenditures in excess sell, lease, mortgage, pledge, xxxxx x Xxxx on, or otherwise encumber or dispose of $25,000 other than any of its properties or assets, except (A) in the ordinary and usual course of business consistent with past practice; providedpractice or (B) other transactions involving not in excess of $20,000.00 in the aggregate; (vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, howeverissue or sell any debt securities or warrants or other rights to acquire any debt securities of each Company, that --------- -------- guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the nothing in this Agreement shall be construed to prohibit (or require any consent from Purchaser for) the Company taking economic effect of any of the following actions foregoing, except for (including1) working capital borrowings under revolving credit facilities incurred in the ordinary course of business, without limitationand (2) indebtedness incurred to refund, making any capital expenditure in connection therewith): refinance, or replace indebtedness for borrowed money outstanding on the satisfaction and termination of the Company's credit line with Xxxxxxx Xxxxx; the termination date hereof, or (and payment of any outstanding balance) of the Company's corporate credit card; any payments to Zion Credit Corporation or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. (iB) make any material acquisition ofloans, advances or capital contributions to, or investment investments in, assets, shares, capital stock or other securities of any other person or entity person, other than employees of each Company in the ordinary and usual course of business consistent with past practice; (jvii) except as may be required to satisfy contractual obligations existing as make or incur capital expenditures in the aggregate in excess of the date hereof and the requirements of applicable Laws, establish, adopt, enter into, make, amend in any material respect, or $20,000; (viii) make any material elections under election relating to Taxes or settle or compromise any collective bargaining agreement or Employee Planmaterial Tax liability; (kix) implement any change in its accounting principlespay, practicesdischarge, or methodssatisfy any claims, liabilities, or obligations (accrued, asserted or unasserted, contingent, or otherwise), other than as may be required by generally accepted accounting principles; andthe payment, discharge, or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms of liabilities reflected or reserved against in, or contemplated by, each Company Balance Sheet; (lx) authorize waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which each Company is a party; (xi) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization, or reorganization; (xii) change any accounting principle used by it; (xiii) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises of litigation where the amount paid in settlement or compromise does not exceed $10,000.00; (xiv) (A) enter into any new, or amend any existing, severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director, or employee, except that, each Company may hire additional employees to the extent deemed by its management to be in the best interests of the relevant Company; provided, that the Company may not enter into any employment or severance agreement or any deferred compensation arrangement with any such additional employees; (B) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company benefit plan (other than amendments required by law); (C) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices); or (D) grant any stock options or stock awards; or (xv) authorize any of, or commit or agree to take any of of, the actions referred to in this Sectionforegoing actions.

Ordinary Course. Except as set forth in Exhibit 5.2, and except --------------- for any actions required During the period from the date of this Agreement to be performed by the Company, or otherwise permitted pursuant to this AgreementEffective Time of the Merger, the Company shall, and shall conduct cause its business generally subsidiaries to, carry on their respective businesses in the usual, regular and ordinary and usual course in all material respects and substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve its intact their current business organizations intact organizations, keep available the services of their current officers and its existing relations employees and preserve their relationships with customers, suppliers, employeeslicensors, independent contractors licensees, distributors and others having business associatesdealings with them. Without limiting the generality of the foregoing, and during the period from the date of this Agreement to the Effective Time of the Merger, the Company shall not do any of the following without the approval of Purchaser (which approval not, and shall not be unreasonably withheld): (a) amend its Certificate of Incorporation (or like charter documents) or By-laws; (b) subdivide, split, combine, consolidate, or reclassify permit any of its outstanding shares of capital stock;subsidiaries to: (ci) (x) declare, set aside or pay any dividend dividends on, or make any other distribution payable distributions in cash, shares, stock, securities or property with respect to any of its shares of capital stock; provided, however, that the Company shall continue to have the right to distribute Standstill Payments among the Stockholders; (d) repurchase, redeem, or otherwise acquire, directly or indirectly, any of its capital stock or any securities convertible into or exchangeable or exercisable into any of its capital stock; (e) enter into any material transaction not in the ordinary course of its business consistent with past practice; (f) issue, sell, pledge, dispose of, or encumber, or authorize or propose the issuance, sale, pledge, disposition, or encumbrance of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (y) 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 or (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (ii) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable or exercisable for, or optionsany rights, puts, warrants, calls, commitments warrants or rights of any kind options to acquire, any such shares, voting securities or convertible securities (other than (1) the issuance of its shares Common Stock (and associated Rights) upon the exercise of capital stockCompany Stock Options outstanding on the date of this Agreement in accordance with their present terms and (2) the issuance of Common Stock (and associated Rights) upon the exercise of Convertible Sub Notes in accordance with their terms); (giii) transferamend its certificate of incorporation, lease, license, sell, mortgage, pledge, encumberby-laws or other comparable charter or organizational documents; (iv) acquire or agree to acquire (x) by merging or consolidating with, or dispose by purchasing a substantial portion of any material property or the assets or incur, guarantee, assumeof, or increase by any indebtedness other manner, any business or any corporation, partnership, joint venture, association or other liability business organization or division thereof or (y) any assets that are material, individually or in excess the aggregate, to the Company and its subsidiaries taken as a whole, except purchases of $25,000 inventory (other than real property) in the ordinary and usual course of business consistent with past practice; (hA) authorize capital expenditures grant to any employee, officer or director of Company or any of its subsidiaries any increase in excess of $25,000 other than compensation, except in the ordinary and usual course of business consistent with past practice; providedprior practice or to the extent required under employment agreements in effect as of the date of the most recent financial statements included in the Filed SEC Documents, however(B) grant to any employee, that --------- -------- the nothing in this Agreement shall be construed to prohibit (officer or require any consent from Purchaser for) the director of Company taking or any of its subsidiaries any increase in severance or termination pay, except to the following actions extent required under any agreement in effect as of the date of the most recent financial statements included in the Filed SEC Documents, (includingC) enter into any employment, without limitationconsulting, making indemnification, severance or termination agreement with any capital expenditure such employee having an annual salary greater than $75,000, officer or director, (D) establish, adopt, enter into or amend in connection therewith): any material respect any collective bargaining agreement or Benefit Plan or (E) take any action to accelerate any material rights or benefits, or make any material determinations not in the satisfaction and termination ordinary course of business consistent with prior practice, under any collective bargaining agreement or Benefit Plan, except as otherwise required by applicable law or regulation; (vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company's credit line with Xxxxxxx Xxxxx; the termination , except insofar as may have been required by a change in GAAP or other applicable laws or regulations; (and payment vii) sell, lease, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any outstanding balance) of properties or assets of the Company's corporate credit card; any payments to Zion Credit Corporation Company and its subsidiaries having a fair market value in excess of $50,000, except sales or the landlord's of the Company's Connecticut and Florida locations in connection with the obtaining of releases of any personal guarantees by the Stockholders or Xxxx Xxxxx of the Company's obligations to such persons or entities; provided, --------- further, that the Stockholders shall promptly notify -------- Purchaser of such actions. inventory (i) make any material acquisition of, or investment in, assets, shares, capital stock or other securities of any other person or entity other than real property) in the ordinary and usual course of business consistent with past practice; (jviii) except as may be required (y) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to satisfy contractual obligations existing as acquire any debt securities of the date hereof and the requirements Company or any of applicable Lawsits subsidiaries, establish, adoptguarantee any debt securities of another person, enter into, make, amend in into any material respect, "keep well" or make other agreement to maintain any material elections under any collective bargaining agreement or Employee Plan; (k) implement any change in its accounting principles, practices, or methods, other than as may be required by generally accepted accounting principles; and (l) authorize financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, other than any guarantee of indebtedness or debt securities of Elder Healthcare Developers, LLC (including through the issuance of letters of credit) in an aggregate amount not to exceed $10,000,000, or (z) make any loans, advances or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company, in the case of clause (y) or (z) above is in an amount which exceeds $50,000; (ix) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $5,000,000; (x) make any material tax election, amend any material tax return or settle or compromise any material tax liability or refund; (xi) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than required payments of interest under the terms of the Convertible Sub Notes or the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred in the ordinary course of business consistent with past practice, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party; (xii) except as part of the Transactions as contemplated by this Agreement, enter into any transaction, agreement, arrangement or understanding with V Corp. or any of its affiliates; or (xiii) authorize any of, or commit or agree to take any of, the foregoing actions (it being understood and agreed that the Company shall not be deemed to have breached the foregoing covenant by virtue of the actions referred Company's obligation to repurchase the Convertible Sub Notes at the election of the holders thereof following the consummation of the Merger in this Sectionaccordance with the "Change of Control" provisions of the Indenture).