Common use of Conduct of Business Pending the Effective Time Clause in Contracts

Conduct of Business Pending the Effective Time. At all times from the execution of this Agreement until the Effective Time, except as set forth in Part 5.11 or as expressly permitted elsewhere in this Agreement, DGLP shall, and shall cause Subsidiary to, conduct the Business in the Ordinary Course of Business consistent with past practice and in compliance in all material respects with all applicable Legal Requirements, and use commercially reasonable efforts in light of its available cash, to preserve substantially intact the Business and goodwill, keep available the services of its officers and employees and preserve the relationships with those Persons having business dealing with DGLP or Subsidiary with respect to the Business. Furthermore, except as set forth in Part 5.11 or as expressly permitted elsewhere in this Agreement, DGLP agrees not to take any of the following actions (and to cause Subsidiary not to take such actions) without the prior written consent of Buyer: (a) amend its Governing Documents; (b) (i) issue, deliver, pledge, transfer, dispose of or encumber any shares of capital stock or other equity or voting interests of DGLP or Subsidiary or any securities convertible into, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciate rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked to the value of DGLP’s common stock or the value of DGLP or Subsidiary or any part thereof, provided, however, that none of the foregoing shall prohibit the issuance of DGLP or Subsidiary common stock upon the exercise of valid stock options or the conversion of restricted stock units, in each case outstanding as of the date of this Agreement;

Conduct of Business Pending the Effective Time. At all times from the execution of this Agreement until the Effective Time, except as set forth in Part 5.11 Section 6.1 of the Seller Disclosure Schedule or as expressly permitted or required elsewhere in this Agreement, DGLP Seller shall, and shall cause each Subsidiary of Seller to, conduct the Business its business in the Ordinary Course of Business ordinary course consistent with past practice and in compliance in all material respects with all applicable Legal RequirementsLaws (including the rules of NASDAQ, excluding any stockholder voting requirements contained therein) and accounting standards (including GAAP), and use commercially reasonable efforts in light of its available cashcash to, to preserve substantially intact the Business its business organizations and goodwill, keep available the services of its officers and employees and preserve the relationships with those Persons having business dealing dealings with DGLP Seller or any Subsidiary with respect to the Businessof Seller. Furthermore, except as set forth in Part 5.11 Section 6.1 of the Seller Disclosure Schedule or as expressly permitted elsewhere in this Agreement, DGLP Seller agrees not to take any of the following actions (and to cause each Subsidiary of Seller not to take such actions) without the prior written consent of Buyer:Parent (which will not be unreasonably withheld): (a) amend its Governing Documentsarticles of organization, certificate of incorporation or bylaws, joint venture documents, partnership agreements or equivalent organizational documents; (b) (i) issue, deliver, sell, pledge, transfer, dispose of or encumber any shares of capital stock or other equity or voting interests of DGLP Seller or each Subsidiary of Seller or any securities convertible into, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciate appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked to the value of DGLP’s common stock Seller Common Stock or the value of DGLP Seller or each Subsidiary of Seller or any part thereof, provided, however, however that none of the foregoing shall prohibit the issuance of DGLP or Subsidiary common stock Seller Common Stock (and the issuance of associated Seller Rights) upon the exercise of valid stock options Seller Stock Options, the vesting of Seller Restricted Stock Units, issuances under the ESPP or the exercise of Seller Warrants (and in each case the issuance of associated Seller Rights), in each case as set forth in Section 5.2(b), or (ii) effect any stock split, stock combination, stock reclassification, reverse stock split, stock dividend, recapitalization or other similar transaction; (c) grant, confer or award any option, right, warrant, deferred stock unit, conversion right or other right not existing on the date hereof to acquire any of its shares of capital stock or shares of deferred stock, restricted stock awards, restricted stock units, stock appreciation rights, “phantom” stock awards or other similar rights that are linked to the value of Seller Common Stock or the value of Seller or each Subsidiary of Seller or any part thereof (whether or not pursuant to existing Seller Stock Plans); (d) (i) except to the extent required under existing plans or arrangements set forth in Section 5.13(a) of the Seller Disclosure Schedule, increase any compensation or benefit (other than in the ordinary course of business consistent with past practice to non-Key Employees) of, or enter into or amend in any material respect any employment or severance agreement with (or pay any amounts (other than in the ordinary course of business consistent with past practice to non-Key Employees) under any Seller Benefit Plans or Seller Other Plans not otherwise due to) any Seller Personnel, (ii) grant any bonuses, other than in the ordinary course of business consistent with past practice (including grants of bonuses to new hires), to any Seller Personnel, (iii) adopt any new Seller Pension Plan, Seller Benefit Plan or Seller Other Plan (including any stock option, stock benefit or stock purchase plan) or amend or modify any existing Seller Pension Plan, Seller Benefit Plan or Seller Other Plan in any material respect, or accelerate the vesting of any compensation (including equity-based awards) for the benefit of any Seller Personnel or grant or amend in any material respect any award under any Seller Pension Plan, Seller Benefit Plan or Seller Other Plan (including the grant of any equity or equity-based or related compensation), (iv) provide any funding for any rabbi trust or similar arrangement, or take any other action to fund or secure the payment of any compensation or benefit, (v) grant to any Seller Personnel any right to receive any severance, change-in-control, retention, termination or similar compensation or benefits or increases therein (other than, in the case of any non-Key Employee, the payment of cash severance or the provision of continued welfare benefits in the ordinary course of business consistent with past practice), (vi) hire or otherwise employ any individual other than in the ordinary course of business consistent with past practice or (vii) terminate any Key Employee other than for cause (including misconduct or breach of company policy); (i) declare, set aside or pay any dividend or make any other distribution or payment (whether in cash, stock or other property or any combination thereof) with respect to any shares of its capital stock or other equity or voting interests (other than dividends or distributions from a wholly-owned Subsidiary of Seller to another Subsidiary of Seller or to Seller) or (ii) directly or indirectly redeem, purchase or otherwise acquire any of its shares of capital stock of, or other equity or voting interest in, any of Seller or each Subsidiary of Seller, or any options, warrants, calls or rights to acquire any such stock or other securities, other than in connection with Tax withholdings and exercise price settlement upon the exercise of Seller Stock Options, the vesting of Seller Restricted Stock Units or Seller Restricted Stock Awards or the exercise of Seller Warrants, in each case outstanding as of on the date of this Agreement; (f) (i) transfer, sell, lease, sublease, license, sublicense or otherwise dispose of any material assets or properties of Seller or any Subsidiary of Seller or (ii) mortgage or pledge any of the property or assets of Seller or any Subsidiary of Seller, or subject any such property or assets to any other Encumbrance (except Permitted Encumbrances), other than, in the case of both (i) and (ii), in the ordinary course of business consistent with past practice; (g) except in the ordinary course of business consistent with past practice, enter into, or amend or terminate any Seller Contract or any lease or sublease (excluding contracts with respect to capital expenditures, which are governed by clause (h) below); provided that in no event shall Seller enter into any procurement contracts which require or involve the payment by Seller or any Subsidiary of Seller of more than $250,000 individually or $1,000,000 in the aggregate; (h) make any capital expenditures in excess of $250,000 individually or $1,000,000 in the aggregate; (i) (A) merge with, enter into a consolidation with or otherwise acquire a material portion of the outstanding equity interests in any Person or acquire any portion of the assets or business of any Person (or any division or line of business thereof) or (B) otherwise acquire (including, through leases, subleases and licenses of real property) any assets, except in the ordinary course of business consistent with past practice; provided that no acquisitions that make it more difficult in any material respect to obtain any approval or authorization required in connection with the transactions contemplated hereby under any Law or that would reasonably be expected to prevent, delay, or impede consummation of the transactions contemplated hereby shall be permitted without consent; (j) write down or write up or fail to write down or write up the value of any receivables or revalue any assets of Seller other than in the ordinary course of business and in accordance with GAAP; (k) create, incur or assume any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become liable or responsible (whether, directly, contingently or otherwise) for the indebtedness of another Person, enter into any agreement to maintain any financial statement condition of another Person or enter into any arrangement or amend or modify any existing arrangement having the economic effect of any of the foregoing, except for (i) letters of credit or replacement letters of credit entered into in the ordinary course of business and consistent with past practice; (ii) any indebtedness owed to Seller by any of its direct or indirect wholly-owned Subsidiaries; or (iii) purchase money debt, capital leases or guarantees in the ordinary course of business not involving indebtedness of more than $1,000,000 individually or $2,500,000 in the aggregate; (l) change any of its methods, principles or practices of financial accounting currently in effect other than as required by GAAP as concurred by its independent registered accountants; (i) modify or amend in a manner that is adverse in a material respect to Seller or any Subsidiary of Seller, or accelerate, terminate or cancel, any Seller Contract, (ii) enter into, amend or modify any agreement or arrangement with Persons that are Affiliates, or (iii) enter into, extend or renew any contract which, if executed prior to the date of this Agreement, would have been required to be disclosed pursuant to Section 5.15, other than, in each case, in the ordinary course of business consistent with past practice; (n) transfer or license on an exclusive basis to any Person any rights to Seller Intellectual Property Assets; (o) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of Seller or any Subsidiary of Seller; (p) form any Subsidiary; (q) settle, pay or discharge any litigation, investigation, or arbitration, other than the settlement, payment, discharge or satisfaction (i) in the ordinary course of business consistent with past practice or (ii) of any actions, suits, claims, investigations or proceedings instituted or threatened against Seller or any of its directors, officers or Affiliates, including by any Seller Stockholder, before any court or Governmental Authority relating to this Agreement, the Support Agreements, the Merger or the other transactions contemplated hereby, or seeking damages or discovery in connection with this Agreement, the Support Agreements, the Merger or the other transactions contemplated hereby; (r) knowingly take or fail to take any action in breach of this Agreement for the purpose of (or which would be reasonably expected to) materially delaying or preventing the consummation of the transactions contemplated hereby (other than as required by Law); and (s) authorize any of, or commit, resolve, offer or agree to take any of, the foregoing actions or any other action inconsistent with the foregoing.

Conduct of Business Pending the Effective Time. At all times During the period from the execution date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except (a) as set forth may be required by Law, (b) to the extent Parent shall otherwise consent in Part 5.11 writing, which consent shall not unreasonably be withheld, delayed or conditioned, and (c) as otherwise expressly permitted elsewhere in required by this Agreement, DGLP the Company shall, and shall cause Subsidiary its Subsidiaries to, conduct the Business its business in the Ordinary Course of Business consistent with past practice and in compliance ordinary course in all material respects with all applicable Legal Requirementsrespects, and use in substantially the same manner as heretofore conducted (including by using its commercially reasonable efforts in light of its available cash, to preserve substantially intact the Business and goodwill, keep available the services of its the current officers and key employees of the Company and preserve each of its Subsidiaries). Without limiting the relationships with those Persons having business dealing with DGLP or Subsidiary generality of the foregoing, except (i) as may be required by Law, (ii) to the extent Parent shall otherwise consent in writing, which consent, solely with respect to the Business. Furthermorematters in Sections 5.1(c)(i), except 5.1(c)(ii), 5.1(c)(vii), 5.1(c)(viii), 5.1(e)(i), 5.1(f)(ii), 5.1(f)(iii), 5.1(g), 5.1(n) and 5.1(p) below, shall not unreasonably be withheld, delayed or conditioned, and (iii) as set forth in Part 5.11 or as otherwise expressly permitted elsewhere in required by this Agreement, DGLP during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company agrees not to take any of the following actions (and to cause Subsidiary its Subsidiaries not to take such actions) without the prior written consent of Buyer:): (a) amend its Governing Organizational Documents; (b) (i) issue, deliver, sell, pledge, transfer, dispose of or encumber any shares of capital stock or other equity or voting interests of DGLP the Company or Subsidiary any of its Subsidiaries or any securities convertible into, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciate appreciation rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked to the value of DGLP’s common stock the Company Common Stock or the value of DGLP the Company or Subsidiary any of its Subsidiaries or any part thereof, ; provided, however, that none of the foregoing shall prohibit the issuance of DGLP or Subsidiary common stock Company Common Stock upon the exercise of valid stock options or the conversion of restricted stock units, in each case Company Stock Options outstanding as of the date of this Agreement, or (ii) effect any stock split, stock combination, stock reclassification, reverse stock split, stock dividend, recapitalization or other similar transaction with respect to the Company Common Stock or capital stock or other equity interests of the Company or any of its Subsidiaries; (c) except as set forth in Section 5.1(c) of the Company Disclosure Schedule or as required pursuant to the terms of Company Contracts in existence as of the date hereof, (i) increase any compensation or benefit payable to any Company Personnel other than, in the case of Company Personnel who are not executive officers or directors, in the ordinary course of business consistent with past practice, or enter into or amend any employment, retention or severance agreement with any Company Personnel, (ii) grant any bonuses to any Company Personnel (including grants of bonuses to new hires) other than, in the case of Company Personnel who are not executive officers or directors, in the ordinary course of business consistent with past practice, (iii) adopt any new Company Plan, (including any stock option, stock benefit or stock purchase plan) or amend or modify any existing Company Plan, (iv) accelerate the vesting of any compensation (including equity-based awards) for the benefit of any Company Personnel or grant or amend any award under any Company Plan (including the grant of any equity or equity-based or related compensation), (v) provide any funding for any rabbi trust or similar arrangement, or take any other action to fund or secure the payment of any compensation or benefit, (vi) grant to any Company Personnel any right to receive any severance, change-in-control, retention, termination or similar compensation or benefits or increases therein (other than, in the case of any Company Personnel who are not executive officers or directors, the payment of cash severance or the provision of continued welfare benefits in the ordinary course of business consistent with past practice), (vii) terminate any Company Personnel other than for cause (including poor performance, misconduct or breach of company policy), or (viii) agree to extend or enter into any new or modified collective bargaining agreement; (i) declare, set aside or pay any dividend or make any other distribution or payment (whether in cash, stock or other property or any combination thereof) with respect to any shares of its capital stock or other equity or voting interests (other than dividends or distributions from a wholly-owned Subsidiary of the Company, other than Interlake Acquisition Corporation Limited, to another wholly-owned Subsidiary of the Company or to the Company) or (ii) directly or indirectly redeem, purchase or otherwise acquire any of its shares of capital stock of, or other equity or voting interest in, any of the Company or any of its Subsidiaries, or any options, warrants, calls or rights to acquire any such stock or other securities, other than in connection with Tax withholdings and exercise price settlement upon the exercise of Company Stock Options outstanding on the date of this Agreement; (e) (i) transfer, sell, lease, sublease, license, sublicense or otherwise dispose of any material assets or properties of the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice or (ii) mortgage or pledge any material assets or properties of the Company or any of its Subsidiaries, or subject any such assets or property to any other Encumbrance (except Permitted Encumbrances); (f) except as set forth on Section 5.1(f) of the Company Disclosure Schedule, (i) other than as permitted by Section 6.4, enter into any agreement (or amend or modify any existing agreement) that if in existence (or effective) as of the date hereof would be required to be listed on Section 3.15 of the Company Disclosure Schedule by virtue of Section 3.15(a)(ii), (a)(iv), (a)(vii), (a)(ix), (a)(xi) or (a)(xiv), (ii) except in the ordinary course of business consistent with past practice or as permitted by Section 6.4, enter into any agreement (or amend or modify any existing agreement) that, if in existence (or effective) as of the date hereof, would be required to be listed on Section 3.15 of the Company Disclosure Schedule by virtue of the subsections of Section 3.15 that are not referred to in Section 5.1(f)(i), or (iii) except in the ordinary course of business consistent with past practice, otherwise terminate any Company Contract or any Company Lease, provided, that, for purposes of clarity the termination or expiration of any Company Contract or Company Lease in accordance with its terms shall not be deemed to be a breach of this Section 5.1(f)(iii); (g) except as set forth in the capital expenditure budget set forth on Section 5.1(g) of the Company Disclosure Schedule or, make or authorize any capital expenditures that individually, or in the aggregate, exceed $250,000 (with respect to expenditures related to non-operational emergencies) or individually, or in the aggregate, exceed $1,000,000 (with respect to expenditures related to operational emergencies); (h) merge with, enter into a consolidation with or otherwise acquire any interest in any Person or acquire any business of any Person (or any division or line of business thereof); (i) except as set forth on Section 5.1(i) of the Company Disclosure Schedule, (i) incur or assume any Indebtedness, except pursuant to the Company’s existing employee loan guaranty program used in connection with the relocation of Company employees; (ii) make or cancel, or waive any rights with respect to, any material loans, advances or capital contributions to, or investments in, any Person (other than to wholly-owned Subsidiaries of the Company); or (iii) pledge or otherwise encumber shares of capital stock of the Company or its Subsidiaries; (j) change any of its methods, principles or practices of financial accounting currently in effect, except (i) as required by GAAP, Regulation S-X of the Exchange Act, or as required by a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization), (ii) as required by a change in applicable Law or (iii) as disclosed on Schedule 5.1(j) of the Company Disclosure Schedule; (k) except as set forth on Section 5.1(k) of the Company Disclosure Schedule, make or change any Tax election, adopt or change any Tax accounting method, or prepare or file any Tax Return, including any amended Tax Return, that is materially inconsistent with past practice or, with respect to any such Tax Return, make any material election or adopt any material method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods; (l) except as set forth on Section 5.1(l) of the Company Disclosure Schedule, enter into any closing agreement with respect to Taxes, settle or compromise any material Tax claim or assessment, consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment, or file any material Tax Return or any amended Tax Return; (m) enter into, materially amend or materially modify any agreement with any Affiliates or officers or directors of the Company; (n) transfer or license to any Person any rights to Intellectual Property, other than in the ordinary course of business consistent with past practice; (o) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any of its Subsidiaries; (p) except as set forth on Section 5.1(p) of the Company Disclosure Schedule, commence, settle or compromise any pending or threatened Action that is material to the business of the Company and its Subsidiaries, taken as a whole, or that otherwise involves the payment by the Company or any of its Subsidiaries of an amount individually, or in the aggregate for all settlements entered into pursuant to this Section 5.1(p), in excess of $250,000 (excluding any amounts that may be paid under existing insurance policies); (q) make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly-owned Subsidiary of the Company) in excess of $250,000 in the aggregate; or (r) authorize any of, or commit, resolve, offer or agree to take any of, the foregoing actions or any other action inconsistent with the foregoing.

Conduct of Business Pending the Effective Time. At all times from the execution Each of this Agreement until the Effective TimeMid Am and Citizens agrees, as to itself and its subsidiaries, that, except insofar as the other party shall otherwise consent in writing (such consent not to be unreasonably withheld) or except as otherwise expressly contemplated by this Plan or the Stock Option Agreements or as set forth in Part 5.11 paragraph 6.1 of its Disclosure Letter: (a) The business of it and its subsidiaries will be conducted only in the ordinary and usual course and, to the extent consistent therewith, it and its subsidiaries will use all reasonable best efforts to preserve intact their business organizations and assets and maintain their rights, franchises and existing relations with customers, suppliers, employees and business associates and to take no action that would (i) adversely affect the ability of any of them to obtain (A) any Regulatory Approval, (B) the accountants' letters referred to in Section 7.1(g) or (C) the opinions of tax counsel referred to, in the case of Mid Am, in Section 7.2(c) and in the case of Citizens, in Section 7.3(c), or (ii) adversely affect its ability to perform its obligations under this Plan or the Stock Option Agreements. (b) It will not (i) sell or pledge, agree to sell or pledge, or permit any Lien to exist on, any stock owned by it or any of its material subsidiaries; (ii) other than as expressly contemplated by Section 2.5 and Section 2.6, amend or restate its articles of incorporation or code of regulations; (iii) other than as referred to in Section 4.4, split, combine or reclassify any outstanding capital stock; (iv) other than as permitted elsewhere by Section 6.2, declare, set aside or pay any dividend or distribution payable in this Agreementcash, DGLP shallstock or other property with respect to any of its capital stock; or (v) except for acquisitions made by Mid Am National Bank and Trust Company, as trustee under Mid Am's Employee Stock Ownership Pension Plan, as amended and restated, and shall cause Subsidiary toMid Am's Employee Stock Ownership and Savings Plan, conduct as amended and restated, and by the Business trustee under Citizen's Employee Stock Ownership Plan, as amended and restated, repurchase, redeem or otherwise acquire, or permit any subsidiary to purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or any securities convertible into or exercisable for any shares of its capital stock. (c) Neither it nor any of its subsidiaries will (i) issue, sell, pledge, dispose of or encumber, or authorize or propose the issuance, sale, pledge, disposition or encumbrance of, any shares of, or securities convertible or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of, any class, except pursuant to this Plan, the Stock Option Agreements, or in connection with acquisitions announced prior to the date hereof; (ii) transfer, lease, license, guarantee, sell, mortgage, pledge or dispose of any other material property or assets or encumber any property or assets other than to a direct or indirect wholly owned subsidiary of it; (iii) cancel, release, assign or modify any material amount of indebtedness of any other individual, bank, corporation, partnership, trust, association or other entity or organization (any of the foregoing, a "Person") other than in the Ordinary Course ordinary and usual course of Business business consistent with past practice; or (iv) authorize capital expenditures other than in the ordinary and usual course of business. (d) Except for internal reorganizations involving existing subsidiaries, or in satisfaction of debts previously contracted in good faith, neither it nor any of its subsidiaries will make any material acquisition of, or investment in, assets or stock of any other Person. (e) Other than in the ordinary course of business consistent with past practice, it will not incur or permit any of its subsidiaries to incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person or make any loan or advance. (f) Neither it nor any of its subsidiaries will (i) grant any increase in compensation or benefits to its Employees, except for normal increases consistent with past practice or as required by law; (ii) pay any bonus except as consistent with past practice; (iii) grant any severance or termination pay to any director or Employee except as consistent with past practice; (iv) enter into or amend any employment or severance agreement with any director or Employee (provided that this clause (iv) shall not prohibit either party from approving a renewal or other extension of an existing employment or severance agreement in accordance with its terms and in compliance the ordinary course of business consistent with past practice); (v) grant any increase in fees or other increases in compensation or other benefits to any of its present or former directors; or (vi) effect any material change in retirement benefits for any class of its Employees (unless such change is required by applicable law or, in the opinion of counsel, is necessary or advisable to maintain the tax qualification of any plan under which the retirement benefits are provided). (g) Except as may be required to satisfy contractual obligations existing as of the date hereof and the requirements of applicable law, neither it nor any of its subsidiaries will establish, adopt, enter into or make any new, or amend any existing, collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, employee stock ownership, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors or Employees. (h) Neither it nor any of its subsidiaries will implement or adopt any change in its accounting principles, practices or methods, other than as may be required by generally accepted accounting principles or regulatory accounting principles. (i) Except in the ordinary course of business consistent with past practice, settle any claim, action or proceeding against it, except for any claim, action or proceeding which involves solely money damages in an amount, individually or in the aggregate for all such settlements, that is not material respects with all applicable Legal Requirementsto Citizens or Mid Am and each of their respective subsidiaries, taken as a whole, and use commercially reasonable efforts in light that does not involve or create precedent for claims, actions or proceedings that are reasonably likely to be material to Citizens or Mid Am and each of their respective subsidiaries taken as a whole. (j) Neither it nor any of its available cash, to preserve substantially intact the Business and goodwill, keep available the services of its officers and employees and preserve the relationships with those Persons having business dealing with DGLP subsidiaries will authorize or Subsidiary with respect to the Business. Furthermore, except as set forth in Part 5.11 or as expressly permitted elsewhere in this Agreement, DGLP agrees not enter into an agreement to take any of the following actions (and referred to cause Subsidiary not to take such actions) without the prior written consent of Buyer: in paragraphs (a) amend its Governing Documents; (b) through (i) issue, deliver, pledge, transfer, dispose of or encumber any shares of capital stock or other equity or voting interests of DGLP or Subsidiary or any securities convertible into, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciate rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked to the value of DGLP’s common stock or the value of DGLP or Subsidiary or any part thereof, provided, however, that none of the foregoing shall prohibit the issuance of DGLP or Subsidiary common stock upon the exercise of valid stock options or the conversion of restricted stock units, in each case outstanding as of the date of this Agreement;above.

Conduct of Business Pending the Effective Time. At all times from the execution of this Agreement until the Effective Time, except as set forth in Part 5.11 Section 6.1 of the Seller Letter or as expressly permitted elsewhere in this Agreement, DGLP the Seller shall, and shall cause Subsidiary each of its subsidiaries to, conduct the Business its business in the Ordinary Course of Business ordinary course consistent with past practice and in compliance in all material respects with all applicable Legal Requirements, Laws and regulations and to use commercially reasonable best efforts in light of its available cash, to preserve substantially intact the Business its business organizations and goodwill, goodwill and keep available the services of its officers and employees and preserve the relationships with those Persons having business dealing dealings with DGLP or Subsidiary with respect to the BusinessSeller. Furthermore, except as set forth in Part 5.11 or as expressly permitted elsewhere in this Agreement, DGLP the Seller agrees not to take any of the following actions (and to cause Subsidiary its subsidiaries not to take such actions) without the prior written consent of Buyer:the Parent (which will not be unreasonably delayed): (a) amend its Governing Documentscertificate of incorporation or bylaws, joint venture documents, partnership agreements or equivalent organizational documents except as necessary to permit a Permitted Acquisition to occur; (bA) except (ix) upon the exercise of the Seller Stock Options outstanding as of the date of this Agreement, (y) as approved by the Parent in writing in connection with a Permitted Acquisition or (z) as set forth in Section 6.1(b) of the Seller Letter, issue, deliver, pledgesell, transfer, dispose of pledge or otherwise encumber any shares of its capital stock or other equity or voting interests of DGLP or Subsidiary interests, or any securities convertible into, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciate appreciation rights, “phantom” stock rights, performance units, rights to receive shares of its capital stock or other rights that are linked to the value of DGLP’s common stock the Seller Common Stock or the value of DGLP or Subsidiary the Seller or any part thereofthereof or (B) effect any share split, providedshare combination, howevershare reclassification, that none reverse share split, share dividend, recapitalization or other similar transaction; Table of Contents (c) except as set forth in Section 6.1(b) of the foregoing shall prohibit Seller Letter, grant, confer or award any option, right, warrant, deferred stock unit, conversion right or other right not existing on the issuance date hereof to acquire any of DGLP its shares of capital stock or Subsidiary common shares of deferred stock, restricted stock awards, stock appreciation rights, “phantom” stock awards or other similar rights that are linked to the value of the Seller Common Stock or the value of the Seller or any part thereof (whether or not pursuant to existing Seller Stock Plans); (d) (i) except to the extent required under existing plans or arrangements set forth in Section 5.13(a)(i) or (ii) of the Seller Letter that were in effect on December 31, 2006, increase any compensation or benefit (other than in the ordinary course of business consistent with past practice to non-Key Personnel) of, or enter into or amend in any material respect any employment or severance agreement with (or pay any amounts (other than in the ordinary course of business consistent with past practice to non-Key Personnel) under any Seller Benefit Plan or Seller Benefit Agreement not otherwise due to) any Seller Personnel, (ii) except as set forth in Section 6.1(d) of the Seller Letter, grant any bonuses, other than prior to the date of this Agreement in the ordinary course of business consistent with past practice (including grants of bonuses to new hires), to any Seller Personnel, (iii) adopt any new Seller Benefit Plan or Seller Benefit Agreement (including any stock option, stock benefit or stock purchase plan) or amend or modify any existing Seller Benefit Plan or Seller Benefit Agreement in any material respect, or accelerate the vesting of any compensation (including equity-based awards) for the benefit of any Seller Personnel or grant or amend in any material respect any award under any Seller Benefit Plan (including the grant of any equity or equity-based or related compensation), (iv) except as set forth in Section 6.1d) of the Seller Letter, provide any funding for any rabbi trust or similar arrangement, or take any other action to fund or secure the payment of any compensation or benefit, (v) grant to any Seller Personnel any right to receive any severance, change in control, retention, termination or similar compensation or benefits or increases therein (other than, in the case of any non-Key Personnel, the payment of cash severance or the provision of continued welfare benefits in the ordinary course of business consistent with past practice), (vi) hire or otherwise employ any individual other than non-Key Personnel who are hired in the ordinary course of business consistent with past practice or (vii) terminate any Key Personnel other than for cause (including misconduct or breach of company policy); (e) (A) declare, set aside or pay any dividend or make any other distribution or payment (whether in cash, stock or other property) with respect to any shares of its capital stock or other equity or voting interests (other than dividends or distributions from a wholly owned subsidiary of the Seller to another subsidiary of the Seller or to the Seller) or (B) directly or indirectly redeem, purchase or otherwise acquire any of its shares of capital stock of, or other equity or voting interest in, any of the Seller or any of its subsidiaries, or any options, warrants, calls or rights to acquire any such shares or other securities, other than in connection with tax withholdings and exercise price settlement upon (I) the exercise of valid stock options the Seller Stock Options or (II) the conversion lapse of restricted stock unitsrestrictions on any Seller Restricted Shares, in each case case, outstanding as of on the date of this Agreement; (f) except as set forth in Section 6.1(f) of the Seller Letter, (A) sell, lease, sublease or license (including through a lease, sublease or license) or otherwise dispose of any material assets or properties or any of the capital stock of or other equity interests in any of its subsidiaries or (B) mortgage or pledge any of its property or assets or subject any such property or assets to any security interest or Encumbrance, other than, in the case of both (A) and (B), in the ordinary course of business consistent with past practice;

Conduct of Business Pending the Effective Time. At all times from the execution of this Agreement until (a) Prior to the Effective Time, except as set forth unless Buyer shall otherwise agree in Part 5.11 writing (which agreement shall be deemed made if given by the Chief Executive Officer, Chief Operating Officer or Chief Financial Officer of Buyer), or as otherwise expressly permitted elsewhere in contemplated by this Agreement, DGLP shalleach Target shall and each Seller and each Technology Seller (only in the case of Technology Companies) shall cause Target to conduct the Business of Target, only in the ordinary and usual course consistent with past practice, and shall cause Subsidiary toTarget to use its best efforts to maintain the assets of the Target in substantially their current state of repair, conduct the Business in the Ordinary Course of Business consistent with past practice and in compliance in all material respects with all applicable Legal Requirements, and use commercially reasonable efforts in light of its available cash, to preserve substantially intact the Business and goodwillpresent business organization, keep available the services of its present officers and key employees, and preserve their existing business relationships and goodwill with customers, suppliers, independent contractors, employees and other Persons material to the operation of its business. Without limiting the generality of the foregoing, unless ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall provide prior written notice (including by E-mail) to, and shall receive the prior written consent of, the Chief Executive Officer, Chief Operating Officer or Chief Financial Officer of Buyer, or as otherwise expressly contemplated by this Agreement, prior to the Effective Time Target shall not, and Sellers shall not permit Target to: (i) (1) amend its Certificate of Incorporation, as amended, By-Laws or other organizational documents, (2) split, combine or reclassify any shares of its outstanding capital stock, (3) declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or (4) directly or indirectly redeem or otherwise acquire any shares of its capital stock; (ii) authorize for issuance, issue (except upon the exercise of outstanding stock options and pursuant to the Exchange Agreements) or sell, deliver or agree to issue or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise), or amend any of the terms of any such capital stock; (iii) (1) merge, combine or consolidate with another entity, (2) acquire or purchase an equity interest in or a substantial portion of the assets of another corporation, partnership or other business organization or otherwise acquire any assets outside the ordinary course of business and consistent with past practice or otherwise enter into any material contract, commitment or transaction outside the ordinary course of business and consistent with past practice or (3) sell, lease, license, waive, release, transfer, encumber or otherwise dispose of any of its material assets outside the ordinary course of business and consistent with past practice; (iv) (1) incur, assume or prepay any indebtedness or any other liabilities in excess of $100,000 individually, or in excess of $500,000 in the aggregate (other than trade payables), (2) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person or (3) make any loans, gifts, advances or capital contributions to, or investments in, any other Person; (v) pay, satisfy, discharge or settle any claim, liabilities or obligations (absolute, accrued, contingent or otherwise) against the Target or any of its directors, officers, employees or agents in excess of $100,000 individually, or in excess of $500,000 in the aggregate, except any obligation to a Technology Seller as provided in this Section 5.3; (vi) modify or amend, or waive any benefit of, any non-competition agreement to which such Target is a party; (vii) authorize or make capital expenditures in excess of $500,000 individually, or in excess of $3,000,000 in the aggregate; provided, that IX may set up additional telephony and platform systems and Buyer shall advance IX up to $3,000,000 to set up such telephony and platform systems; (viii) permit any insurance policy naming Target as a beneficiary or a loss payee to be cancelled or terminated other than in the ordinary course of business; (1) adopt, enter into, terminate or amend in any material respect (except as may be required by Applicable Law) any plan, trust, fund, agreement or other arrangement for the current or future benefit or welfare of any director, officer or employee, (2) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee or (3) take any action to fund or in any other way secure, or to accelerate or otherwise remove restrictions with respect to, the payment of compensation or benefits under any employee plan, agreement, contract, arrangement or other Benefit Plan other than in the ordinary course of business; (x) take any action that would fail to preserve and protect the relationships Intellectual Property; (xi) make any material change in its accounting or tax policies or procedures, except as required to comply with those Persons having GAAP; (xii) make any Tax elections or settle or compromise any tax liability or waive or extend the statute of limitations in respect of any such taxes; (xiii) make any payments to or authorize any transaction with any Seller or Technology Seller or their Affiliates, except in the ordinary course of business; (xiv) take any action, or enter into or authorize any contract or transaction, other than in the ordinary course of business; (xv) waive, release or cancel any claims against third parties or debts owing to it, or any rights which have any value; (xvi) terminate, modify, amend or otherwise alter or change any of the terms or provisions of any material Contract in any material respect; or (xvii) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing. (b) Until the Closing or the termination of this Agreement, Target will not make any new commitment that will be binding on Target at the Effective Time to pay any salary or bonus to any employee, except for regular compensation and bonuses (and regular increases thereof) payable in accordance with past practices. (c) From time to time, the three principal executive officers of IX shall meet with the Chief Executive Officer, the President, the Chief Financial Officer and other officers or employees of Buyer (the "Buyer Representatives") in order to review and consult regarding material developments, transactions and proposals relating to its Business. (d) Pending the Effective Time, Buyer will not, and will not permit any of its Affiliates, directors, officers, employees, agents or representatives to, take any action which could reasonably be expected to interfere unreasonably with or adversely affect the business dealing or operations of Target. (e) Prior to the Effective Time, Sellers and Technology Sellers shall prepare and file on a timely basis all Tax Returns of Target which are required to be filed after the Closing Date and prior to the Effective Time and shall cause Target to pay (or establish appropriate reserves in accordance with DGLP or Subsidiary prior practice) all Taxes due with respect to the Businessincome and operations of Target with respect to such period. Furthermore, except as set forth All such Tax Returns shall be accurately and completely prepared in Part 5.11 or as expressly permitted elsewhere in this Agreement, DGLP agrees not to take any of the following actions (and to cause Subsidiary not to take such actions) without the prior written consent of Buyer: (a) amend its Governing Documents; (b) (i) issue, deliver, pledge, transfer, dispose of or encumber any shares of capital stock or other equity or voting interests of DGLP or Subsidiary or any securities convertible into, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciate rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked to the value of DGLP’s common stock or the value of DGLP or Subsidiary or any part thereof, provided, however, that none of the foregoing shall prohibit the issuance of DGLP or Subsidiary common stock upon the exercise of valid stock options or the conversion of restricted stock units, in each case outstanding as of the date of this Agreement;full compliance with all applicable legal requirements.

Conduct of Business Pending the Effective Time. At all times from the execution of Except as permitted or required by this Agreement or otherwise consented to in writing by Cirrus, until the Effective TimeClosing, except the Company shall take all action, or refrain from taking any action, necessary to ensure that: (a) Each of the Company and the Subsidiaries: (i) conducts its operations only according to its usual regular and ordinary course of business in substantially the same manner as set forth in Part 5.11 or as expressly permitted elsewhere in this Agreement, DGLP shallheretofore conducted, and shall cause Subsidiary to, conduct the Business in the Ordinary Course of Business consistent with past practice and in compliance in all material respects with all applicable Legal Requirements, and use uses commercially reasonable efforts in light of to preserve intact its available cashbusiness organization, to preserve substantially intact the Business and goodwill, keep available the services of its officers and current employees and to preserve the its present relationships with those customers, suppliers and other Persons having with which it has a business dealing with DGLP or Subsidiary with respect to the Business. Furthermore, except as set forth in Part 5.11 or as expressly permitted elsewhere in this Agreement, DGLP agrees not to take any of the following actions (and to cause Subsidiary not to take such actions) without the prior written consent of Buyer: (a) amend its Governing Documentsrelationship; (bii) (i) issuepreserves all of its right, deliver, pledge, transfer, dispose of or encumber any shares of capital stock or other equity or voting interests of DGLP or Subsidiary or any securities convertible into, exchangeable or exercisable for or representing the right to subscribe for, purchase or otherwise receive any such shares or interests or any stock appreciate rights, “phantom” stock rights, performance units, rights to receive shares of capital stock or other rights that are linked title and interest in and to the value of DGLP’s common stock or the value of DGLP or Subsidiary or any part thereof, provided, however, that none assets of the foregoing shall prohibit Company and each Subsidiary, including, without limitation, its product designs, layouts, drawings, net lists, engineering documentation, user documentation, masks and other manufacturing tools, firmware and software, and test programs, except such of the issuance assets as are consumed in the ordinary course of DGLP or Subsidiary common stock upon business consistent with past practice between the exercise date hereof and the Closing Date; (iii) maintains in good operating condition and repair, ordinary wear and tear excepted, all of valid stock options or the conversion tangible property of restricted stock units, the Company and each Subsidiary; (iv) maintains in each case outstanding as of force all insurance in effect on the date of this Agreement; (v) maintains all of the Books and Records consistent with past practices; (vi) operates its business in compliance with all applicable laws, rules and regulations; and (vii) extends trade credit only in the ordinary course of business, consistent with past practice. (b) Neither the Company nor any of the Subsidiaries shall: (i) amend its Articles of Incorporation or Bylaws (or similar constitutive documents); (ii) issue or sell, or authorize the issuance or sale of, any shares of its capital stock or any other securities; (iii) issue or sell, or authorize the issuance or sale of, any securities convertible into, or options, warrants or rights to purchase or subscribe to its capital stock or any other securities; (iv) enter into any arrangement or contract with respect to the issuance or sale of any shares of its capital stock or any other securities, or make any changes in its capital structure; (v) sell or agree to sell or create or agree to create any Encumbrance on any stock or other equity interest owned by it in any other Person; (vi) declare, pay or set aside any dividend or other distribution or payment with respect to, or split, combine, redeem or reclassify, or purchase or otherwise acquire, any shares of its capital stock or other securities, or make any other payments to its shareholders or Affiliates; (vii) enter into any contract or commitment with respect to capital expenditures individually or in the aggregate in excess of $100,000; (viii) acquire any interest in the equity, assets or business of any Person; (ix) except to the extent required under applicable law, rule or regulation, or as permitted or required by this Agreement, increase the compensation or fringe benefits of, or pay any bonuses to, any of its directors, officers or employees or grant any severance or termination pay, or enter into any employment, consulting or severance agreement or arrangement with any present or former director, officer or other employee, or establish, adopt, enter into, amend or terminate any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any of its directors, officers or employees; (x) create any Encumbrance on any of its assets or incur or modify any indebtedness or other liability (other than the incurrence of trade payables in the ordinary course of business) or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for the obligations of any Person, or make any loan or other extension of credit; (xi) purchase or sell any assets other than Products in the ordinary course of business; (xii) enter into any capital lease or lease any of its assets; (xiii) enter into any material contract, transaction or activity; (xiv) pay or set aside any dividend or make or set aside any other distribution with respect to, or redeem, purchase or otherwise acquire, any shares of its capital stock or other securities, or make any other payment to the Shareholders or any Affiliate thereof or of the Company or any Subsidiary; (xv) make or rescind any tax election or settle or compromise any tax liability; (xvi) make any change in its accounting policies or procedures or make any changes in any accounting method or, except upon the written advice of its independent auditors, its system of internal accounting controls; (xvii) except in the ordinary course of business, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of claims, liabilities or obligations reflected or reserved against in the Company Financial Statements; (xviii) increase or decrease prices charged to its customers other than in the ordinary course of business; (xix) enter into any contract or transaction with any of its directors, officers, Shareholders or Affiliates, other than as expressly provided in this Agreement; (xx) file or cause to be filed or be a party to any action, suit or proceeding at law or in equity, or any arbitration, or any administrative or other proceeding by or before any Governmental Authority; (xxi) or engage in any new line of business; or (xxii) agree, in writing or otherwise, to take any of the foregoing actions. (c) The Company shall notify Cirrus and Acquisition Sub in writing of any material adverse change since the date hereof in the business, assets, liabilities, operations, results of operations, condition (financial or otherwise) or prospects of the Company or any of the Subsidiaries promptly upon becoming aware thereof.