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

Seller’s Conduct of the Business. From the date of this Agreement until the earlier of the Closing Date or termination of this Agreement, Seller covenants and agrees that the Business shall be conducted only in the ordinary course of business and in a manner consistent with past practice; and Seller shall use its commercially reasonable efforts to preserve substantially intact the Business as conducted by Seller and the Purchased Assets, to keep available the services of the Business Employees and to preserve the current relationships of Seller with customers, suppliers and other Persons with which Seller has significant business relations relating to the Business as conducted by Seller. Seller shall promptly notify Purchaser of any event or occurrence not in the ordinary course of the Business as conducted by Seller, and any event of which Seller is or becomes aware which reasonably would be expected to have a Material Adverse Effect on the Business (even if the likelihood of such event or occurrence has previously been disclosed or could result from any item set forth in the Seller Disclosure Schedule). Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, Seller shall not, from the date of this Agreement until the Closing Date, directly or indirectly, do or propose to do any of the following without the prior written consent of Purchaser (which consent shall not be unreasonably conditioned, withheld or delayed): (a) amend or otherwise modify the material terms of any Purchased Contract; (b) transfer to any person or entity any rights to Seller’s Intellectual Property Rights; (c) sell, lease, license or otherwise dispose of any of the Purchased Assets outside of the ordinary course of business; (d) take any action or fail to take any action that would cause a Material Adverse Effect on the Business; or (e) enter into any contract or agree, in writing or otherwise, to take any of the actions described above in this Section 6.1.

Seller’s Conduct of the Business. From the date of this Agreement Effective Date until the earlier of the Closing Date or termination of this AgreementDate, Seller covenants and agrees that the Business shall be conducted only in in, and Seller shall not take any action except in, the ordinary course Ordinary Course of business Business and in a manner consistent with past practice; and Seller shall use its commercially reasonable best efforts to preserve substantially intact the Business as conducted by Seller and the Purchased Assetsbusiness organization of Seller, to keep available the services of the Business Employees current Contractors of Seller and to preserve the current relationships of Seller with customers, suppliers suppliers, distributors, dealers and other Persons with which Seller has significant business relations relating to the Business as conducted by Sellerrelations. Seller shall promptly notify Purchaser Buyer of any event or occurrence not in the ordinary course Ordinary Course of the Business as conducted by of Seller, and any event of which Seller is or becomes aware which reasonably would be expected to have a Material Adverse Effect on the Business Seller (even if the likelihood of such event or occurrence has previously been disclosed or could result from any item set forth in the Seller Disclosure Schedule). Without limiting the generality of the foregoing, except as expressly contemplated by this AgreementAgreement or disclosed in the Seller Disclosure Schedule, Seller shall not, from the date of this Agreement Effective Date until the Closing Date, directly or indirectly, do or propose to do any of the following without the prior written consent of Purchaser (which consent shall not be unreasonably conditioned, withheld or delayed): Buyer: (a) amend Declare or pay any dividends on or make any other distributions (whether in cash, stock or property) with respect to any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares at cost in connection with any termination of service to Seller; (b) Issue, deliver, sell, or purchase any shares of Seller’s stock; (c) Cause or permit any amendments to its Articles of Incorporation or bylaws that would have an adverse effect on the Transaction; (d) Enter into any commitment or transaction not in the Ordinary Course of Business; (e) Terminate any employees or xxxxx xxxxxxxxx or termination pay to any Contractor; (f) Enter into any transaction with its officers, directors or shareholders or their Affiliates; (g) Amend or otherwise modify the material terms of any Purchased Contract; Seller Contract or Governmental Approval; (bh) transfer Transfer to any person or entity Person any rights to Seller’s Intellectual Property Rights; ; (ci) sellSell, lease, license or otherwise dispose of any of the Purchased Assets Seller’s assets outside of the ordinary course Ordinary Course of business; Business; (dj) take Commence a Proceeding other than for the routine collection of bills; (k) Acquire or agree to acquire by merging, consolidating or entering into a joint venture arrangement with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the financial condition, results of operations, business or properties of Seller taken as a whole; (l) Adopt, amend or terminate any employee benefit plans, programs, policies or other arrangements, or enter into any employment contract, pay any special bonus or special remuneration to any director, employee or consultant, or increase the salaries or wage rates of its employees other than pursuant to scheduled employee reviews under Seller’s normal employee review cycle, or in connection with the hiring of employees other than officers in the Ordinary Course of Business, in all cases consistent with past practice; (m) Incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others; (n) Revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable other than in the Ordinary Course of Business and consistent with past practice; (o) Pay, discharge or satisfy any Liability, other than the payment, discharge or satisfaction of obligations in the Ordinary Course of Business or Liabilities reflected or reserved against in Seller’s Financial Statements; (p) Make any material tax election other than in the Ordinary Course of Business and consistent with past practice, change any material tax election, adopt any material tax accounting method other than in the Ordinary Course of Business and consistent with past practice, change any material tax accounting method, enter into any closing agreement, or settle any Tax claim or assessment applicable to any Tax claim or assessment; (q) Fail to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith; (r) Waive or commit to waive any rights with a value in excess of Ten Thousand Dollars ($10,000), or forgive any indebtedness owed to Seller; (s) Cancel, materially amend or renew any insurance policy other than in the Ordinary Course of Business; (t) Take any action or fail to take any action that would cause a Material Adverse Effect on the BusinessEffect; or or (eu) enter Enter into any contract or agree, in writing or otherwise, to take any of the actions described above in this Section 6.1, or any action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent it from performing or cause it not to perform its covenants hereunder.

Seller’s Conduct of the Business. From the date of this Agreement April 20, 2004 until the earlier of the Closing Date or termination of this AgreementDate, Seller covenants and agrees that the Business shall be conducted only in in, and Seller shall not take any action except in, the ordinary course of business and in a manner consistent with past practice; and Seller shall use its commercially reasonable best efforts without requirement to incur any expenses other than in the ordinary course to preserve substantially intact the Business as conducted by Seller and the Purchased Assetsbusiness organization of Seller, to keep available the services of the Business Employees current officers, employee and consultants of Seller and to preserve the current relationships of Seller with customers, suppliers and other Persons persons with which Seller has significant business relations relating to the Business as conducted by Sellerrelations. Seller shall promptly notify Purchaser Buyer of any event or occurrence not in the ordinary course of the Business as conducted by business of Seller, and any event of which Seller is or becomes aware which reasonably would be expected to have a Material Adverse Effect material adverse effect on the Business Seller (even if the likelihood of such event or occurrence has previously been disclosed or could result from any item set forth in the Seller Disclosure Schedule). Without limiting the generality of the foregoing, except as expressly contemplated by this AgreementAgreement or disclosed in the Seller Disclosure Schedule, Seller shall not, from the date of this Agreement until the Closing Date, directly or indirectly, do or propose to do any of the following without the prior written consent of Purchaser (which consent shall not be unreasonably conditioned, withheld or delayed): Buyer: (a) amend Issue, deliver, or sell any shares of Seller's stock; (b) Cause or permit any amendments to its Articles of Incorporation or bylaws that would have an adverse effect on the transaction; (c) Enter into any commitment or transaction not in the ordinary course of business; (d) Terminate any employees or xxxxx xxxxxxxxx or termination pay to any director, officer, employee or consultant; (e) Enter into any transaction with its officers, directors or stockholders or their affiliates other than a distribution on its capital stock; (f) Amend or otherwise modify the material terms of any Purchased Contract; of Seller's contracts; (bg) transfer to any person or entity any rights to Seller’s Intellectual Property Rights; (c) sellSell, lease, license or otherwise dispose of any of the Purchased Assets Seller's assets outside of the ordinary course of business; ; (dh) take Commence a proceeding of any nature other than for the routine collection of bills; (i) Acquire or agree to acquire by merging, consolidating or entering into a joint venture arrangement with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the financial condition, results of operations, business or properties of Seller taken as a whole; (j) Adopt, amend or terminate any employee benefit plans, programs, policies or other arrangements, or enter into any employment contract, pay any special bonus or special remuneration to any director, employee or consultant, or increase the salaries or wage rates of its employees; (k) Incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others; (l) Fail to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith; (m) Waive or commit to waive any rights or forgive any indebtedness owed to Seller; (n) Take any action or fail to take any action that would cause have a Material Adverse Effect material adverse effect on the Business; or or (eo) enter Enter into any contract or agree, in writing or otherwise, to take any of the actions described above in this Section SECTION 6.1, or any action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent it from performing or cause it not to perform its covenants hereunder.

Seller’s Conduct of the Business. From (a) Except as set forth on Schedule 4.2(a), from the date of this Agreement Signing Date until the earlier of the Closing Date or termination of this AgreementDate, Seller covenants and agrees that the Business to conduct its business only in, and Seller shall be conducted only in not take any action, except in, the ordinary course of business and in a manner consistent with past practice; and Seller shall use its commercially reasonable efforts to preserve substantially intact the Business as conducted by Seller and the Purchased Assetsbusiness organization of Seller, to keep available the services of the Business Employees current Service Providers of Seller and to preserve the current relationships of Seller with customers, suppliers and other Persons with which Seller has significant business relations relating to the Business as conducted by Sellerrelations. Seller shall promptly notify Purchaser Parent of any event or occurrence not in the ordinary course of the Business as conducted by business of Seller, and any event of which Seller is or becomes aware which reasonably would be expected to have a Material Adverse Effect on the Business . (even if the likelihood of such event or occurrence has previously been disclosed or could result from any item set forth in the Seller Disclosure Schedule). b) Without limiting the generality of the foregoingSection 4.2(a), except as expressly contemplated by this AgreementAgreement or disclosed in the Seller Disclosure Schedule, Seller shall not, from the date of this Agreement Signing Date until the Closing Date, directly or indirectly, do or propose to do any of the following without the prior written consent of Purchaser (Parent, which consent shall not be unreasonably conditionedwithheld: (i) Declare or pay any non-cash dividends on or make any other non-cash distributions with respect to any of its equity interests, withheld or delayed): split, combine or reclassify any of its securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its equity interests, or repurchase or otherwise acquire, directly or indirectly, any of its equity interests except from former Service Providers in accordance with agreements providing for the repurchase of equity interests in connection with any termination of service to Seller. Notwithstanding the foregoing, Seller may, upon obtaining prior written approval from Parent, issue equity securities to physician participants in Seller in exchange for such physician participants reducing their collective share of the “shared savings” generated by Seller which is distributed to physician participants; if Seller wishes to issue equity securities to physician participants pursuant to this paragraph, Seller shall provide Parent with a written request setting forth details of such proposed issuance, including the names of physician participants to whom equity securities are to be issued and the amount of equity securities to be issued to each physician participant; Parent will cease approving such requests at a specified time prior to the anticipated Closing Date; (aii) amend Declare or pay any dividends on or make any other distributions with respect to any of its equity interests, or repurchase or otherwise acquire, directly or indirectly, any of its equity interests, that would, individually or in the aggregate, reasonably be expected to result in (A) the fair value and fair market value of Seller’s assets failing to exceed its liabilities, (B) Seller’s remaining assets to be unreasonably small in relation to Seller’s present and intended future business (without regard to whether the Merger are consummated or not) or (C) Seller not being able to pay its debts as they become due; (iii) Cause or permit any amendments to Seller’s Articles of Organization, Operating Agreement or equivalent documents; (iv) Enter into any commitment or transaction not in the ordinary course of business; (v) Terminate any Service Providers or gxxxx xxxxxxxxx or termination pay to any Service Provider; (vi) Enter into any material transaction with its officers, directors or equity holders, or their Affiliates, except (A) as provided in any equity incentive plan or award agreement entered into in connection therewith, or (B) other agreements relating to compensation or (C) pursuant to a binding agreement effective as of the date hereof and disclosed to Parent in writing; (vii) Amend or otherwise modify the terms of any Material Contract to which Seller is a party; (viii) Amend or otherwise modify the material terms of any Purchased Contract; Governmental Approval; (bix) transfer Transfer to any person or entity Person any rights to Seller’s Intellectual Property Rights; Rights other than non-exclusive licenses granted to end-user customers in the ordinary course of business consistent with past practice; (cx) sellSell, lease, license or otherwise dispose of any of the Purchased Assets Seller’s assets outside of the ordinary course of business; ; (dxi) take Commence a Proceeding other than for the routine collection of bills; (xii) Acquire or agree to acquire by merging, consolidating or entering into a joint venture arrangement with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Entity or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the financial condition, results of operations, business or properties of Seller taken as a whole; (xiii) Adopt, amend or terminate any Service Provider benefit plans, programs, policies or other arrangements, or enter into any employment or Service Provider contract, pay any special bonus or special remuneration to any current or former Service Provider, or increase the salaries or wage rates of its Service Providers other than pursuant to scheduled Service Provider reviews under Seller’s normal Service Provider review cycle, in all cases consistent with past practice; (xiv) Incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others; (xv) Pay, discharge or satisfy any Liability, other than the payment, discharge or satisfaction of obligations in the ordinary course of business or liabilities reflected or reserved against in Seller’s Financial Statements; (xvi) Make any Tax election other than in the ordinary course of business and consistent with past practice, change any Tax election, adopt any Tax accounting method other than in the ordinary course of business and consistent with past practice, change any tax accounting method, file any Tax Return (other than any estimated tax returns, payroll tax returns or sales tax returns) or any amendment to a Tax return, enter into any closing agreement, settle any Tax claim or assessment, or consent to any extension or waiver of the limitation period, applicable to any Tax claim or assessment (but in each case only if such action would reasonably be expected to result in an Seller Material Adverse Effect, and if such action would not reasonably be expected to result in an Seller Material Adverse Effect, then Seller shall only be obligated to notify Parent of such action); (xvii) Fail to pay or otherwise satisfy its monetary obligations as they become due, except such as are being contested in good faith; (xviii) Waive or commit to waive any rights with a value in excess of $25,000, or forgive any indebtedness owed to Seller; (xix) Cancel, amend or renew any insurance policy other than in the ordinary course of business; (xx) Take any action or fail to take any action that would could reasonably be expected to cause or result in a Seller Material Adverse Effect on the BusinessEffect; or or (exxi) enter Enter into any contract or agree, in writing or otherwise, to take any of the actions described above in this Section 6.14.2(b), or any action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent it from performing or cause it not to perform its covenants hereunder.