Common use of Conduct of the Business Pending Closing Clause in Contracts

Conduct of the Business Pending Closing. From and after the date hereof until the Closing Date, except as set forth in the disclosure schedules hereto or unless Buyer shall otherwise consent in writing, the Company and each its Subsidiaries shall: (a) carry on its business in the ordinary course in substantially the same manner in which it previously has been conducted and, to the extent consistent with such business, use its reasonable best efforts to preserve intact its present business organization, to keep available in all material respects the services of its present officers and employees, and to preserve for its business the good will of the customers, suppliers and others having business relations with it, (b) not amend its Certificate of Incorporation or Bylaws, or other organizational documents, (c) not adopt a plan of liquidation or dissolution, and not merge or consolidate with, or purchase substantially all or a material portion of the assets of, or otherwise acquire any business of any person, (d) not take any action described in Section 5.2(a)-(g), nor otherwise take any action or omit to take any actions which action or omission would result in a breach or inaccuracy of any of their representations and warranties contained herein in any material respect at, or as of any time prior to the Closing, (e) maintain its books of account and records in its usual, regular and ordinary manner, consistent with its past practice, (f) not take any action or omit to take any action which will result in a violation of any applicable law or cause a breach of any agreements, contracts or commitments by it (including, without limitation, the Contracts), except for violations or breaches which, individually or in the aggregate, would not have a Material Adverse Effect, (g) not issue, redeem, repurchase, split or reclassify any capital stock or other equity securities or issue, become a party to, redeem or repurchase any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to its issued or unissued capital stock, or its other equity securities, if any, or grant any stock appreciation, phantom stock or similar rights, (h) not agree or commit to do any of the foregoing referred to in clauses (a) - (g), and (j) promptly advise Buyer of any fact, condition, occurrence or change known to the Investors or the Company that would cause of breach of this Section 7.2 or would have a Material Adverse Effect.

Conduct of the Business Pending Closing. From and after (a) Except as otherwise expressly provided by this Agreement, or with the prior written consent of Purchaser, between the date hereof until and the Closing DateClosing, each Seller shall: (i) conduct the Business only in the Ordinary Course of Business; (ii) use commercially reasonable efforts to (A) preserve the present business operations and organization (including officers and Employees) of such Seller and (B) preserve the present relationships with Persons having business dealings with such Seller (including customers and suppliers); [***]; (iii) maintain (A) all of the Purchased Assets and properties of Sellers to be leased to Purchaser in connection herewith in their current condition, ordinary wear and tear excepted, subject to sales of inventory in the Ordinary Course of Business and (B) insurance upon all of the assets and properties of such Seller in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of such Seller in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, except as set forth in the disclosure schedules hereto or unless Buyer shall otherwise consent in writing, the Company Ordinary Course of Business and each its Subsidiaries shall: (aC) carry on its business in the ordinary course in substantially the same manner in which it previously has been conducted and, to the extent consistent with such business, use its reasonable best efforts to preserve intact its present business organization, to keep available comply in all material respects the services with all contractual and other obligations of its present officers and employees, and to preserve for its business the good will of the customers, suppliers and others having business relations such Seller; and (v) comply in all material respects with it, all applicable Laws. (b) not amend its Certificate Without limiting the generality of Incorporation the foregoing, except as otherwise expressly provided by this Agreement or Bylawswith the prior written consent of Purchaser, neither Seller shall: (i) except in the Ordinary Course of Business, (A) increase the salary or other compensation of any Employee, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee or (C) enter into or increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus, equity or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or other organizational documentswith any of the members, directors, officers, Employees, agents or representatives of such Seller or otherwise modify or amend or terminate any such plan or arrangement; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness, (cB) not adopt a plan modify the terms of liquidation any Indebtedness or dissolutionother Liability or (C) make any loans, and not merge or consolidate withadvances of capital contributions to, or purchase substantially all investments in any other Person; (iii) (A) make, change or revoke any material Tax election, settle or compromise any material Tax claim or Liability or enter into a settlement or compromise, or change (or make a request to any Taxing Authority to change) any material portion aspect of its method of accounting for Tax purposes, or amend any material Tax Return or (B) prepare or file any Tax Return unless such Tax Return shall have been prepared in a manner consistent with past practice and such Seller shall make available to Purchaser a copy thereof (together with supporting papers); (iv) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be encumbered, any of the properties or assets of(whether tangible or intangible) of such Seller; (v) except in the Ordinary Course of Business, sell, assign, license, grant any non-assertion with respect to, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (for the avoidance of doubt, the disposal of vehicles no longer in service of the Business shall be considered done in the Ordinary Course of Business); (vi) enter into or agree to enter into any merger or consolidation with any other corporation, partnership or other entity, or engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (vii) cancel or compromise any debt or claim or waive or release any material right, except in the Ordinary Course of Business; (viii) enter into any commitment for capital expenditures in excess of $25,000 for any individual commitment and $75,000 for all commitments in the aggregate; (ix) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (x) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (xi) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (xii) enter into any Contract that restrains, restricts, limits or impedes the ability of the Business, or the ability of Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personpersons; (▇▇▇▇) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, supplement or waive any rights under any (dA) not Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License or (B) Permit; (xiv) except in the Ordinary Course of Business, settle or compromise any pending or threatened Legal Proceeding or any claim or claims (for the avoidance of doubt, the settlement or other disposition of workers’ compensation and automobile liability claims shall be considered done in the Ordinary Course of Business if such claim results in a payment by a Seller that is less than the sum of the accrued reserve for such claim as of the Balance Sheet Date plus $100,000); (xv) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections of receivables (unless past due), or fail to pay or delay payment of payables or other Liabilities; (xvi) take any action described which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xvii) amend the certificate of incorporation or bylaws (or equivalent thereof) of such Seller except as contemplated by this Agreement; (xviii) increase or decrease inventory levels beyond such Seller’s normal historic inventory levels when operating in the Ordinary Course of Business; or (xix) agree to do anything (A) prohibited by this Section 5.2(a)-(g)7.3, nor otherwise take any action or omit to take any actions (B) which action or omission would result in a breach or inaccuracy of make any of their the representations and warranties contained herein of any Seller in this Agreement or any of the Seller Documents untrue or incorrect in any material respect at, or as of any time prior to the Closing, (e) maintain its books of account and records in its usual, regular and ordinary manner, consistent with its past practice, (f) not take any action or omit to take any action which will would result in a violation of any applicable law or cause a breach of any agreements, contracts or commitments by it (including, without limitation, the Contracts), except for violations or breaches which, individually or in the aggregate, would not have a Material Adverse Effect, (g) not issue, redeem, repurchase, split or reclassify any capital stock or other equity securities or issue, become a party to, redeem or repurchase any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to its issued or unissued capital stock, or its other equity securities, if any, or grant any stock appreciation, phantom stock or similar rights, (h) not agree or commit to do any of the foregoing referred to in clauses (a) - (g), and (j) promptly advise Buyer of any fact, condition, occurrence or change known conditions to the Investors Closing not being satisfied or the Company (C) that would cause of breach of this Section 7.2 or would have a Material Adverse Effect.

Conduct of the Business Pending Closing. From and after Except as is set forth in Schedule 5.8, between the date hereof until and the Closing Date, except as set forth in the disclosure schedules hereto or unless Buyer shall otherwise consent in writinghereunder, the Company ▇▇▇▇▇/ProfitKey Seller will cause ▇▇▇▇▇ and each its Subsidiaries shall: ProfitKey, the Process Seller will cause Process and the Foresight Seller will cause Foresight, to (unless otherwise consented to by Purchaser which consent will not be unreasonably withheld): (a) carry on conduct its business Business in the ordinary course Ordinary Course; (b) not enter into any Contract with any party, other than Contracts entered into in substantially the same manner Ordinary Course, and not amend, modify or terminate any Contract other than in which it previously has been conducted and, to the extent consistent with such business, Ordinary Course without the prior written consent of Purchaser; (c) use its commercially reasonable best efforts to preserve intact its present business organizationintact, to keep available in all material respects the services of its present officers and employeesEmployees, and to preserve for its business the good will relationships with its customers and others with whom it deals consistent with past practice; (d) maintain in full force and effect all of the customers, suppliers insurance policies listed on Schedule 3.19; (e) continue to maintain all of its usual books and others having business relations records in accordance with it, its past practices and not to make any material Tax elections; (bf) not amend its Certificate of Incorporation articles or Bylawsincorporation, bylaws or other organizational documents, ; (cg) not adopt a plan declare or make any non-cash dividend or other non-cash payment on or with respect to the Equity Interests, redeem or otherwise acquire any securities or issue any securities or any, option, warrant or right relating thereto; (h) not pay any bonuses to any of liquidation its Employees, other than in the Ordinary Course or dissolution, as required by pre-existing Contracts; (i) not waive any right or cancel any material claim; (j) not increase the compensation or the rate of compensation payable to any of its Employees; (k) maintain its entity existence and not merge or consolidate withwith any other entity; (l) comply with all material respects with (i) provisions of any Contract applicable to it and (ii) all applicable Laws consistent with past practices; (m) Not make any capital expenditures in excess of $5,000 per expenditure and/or $10,000 in the aggregate; (n) neither discuss nor negotiate with any other Person or entity the sale or other transfer, or purchase substantially all or a material portion Encumbrance (other than Permitted Encumbrances), of the assets of, or otherwise acquire any business the Equity Interests of any person, the Company; (do) not take incur any action described in Section 5.2(a)-(g), nor otherwise take any action or omit to take any actions which action or omission would result in a breach or inaccuracy of any of their representations and warranties contained herein in any material respect at, or as of any time prior Indebtedness; (p) keep the assets necessary to the Closing, (e) maintain conduct of its books of account Business in good order and records in its usual, regular and ordinary mannerrepair, consistent with its past practice, practice and subject to ordinary wear and tear; (fq) not take any action or omit to take any action which will result in a violation of any applicable law or cause a breach of any agreements, contracts or commitments deposit all funds received by it into such Company’s principal bank account; and (including, without limitation, r) use commercially reasonable efforts to effectuate the Contracts), except for violations or breaches which, individually or in the aggregate, would not have a Material Adverse Effect, (g) not issue, redeem, repurchase, split or reclassify any capital stock or other equity securities or issue, become a party to, redeem or repurchase any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to its issued or unissued capital stock, or its other equity securities, if any, or grant any stock appreciation, phantom stock or similar rights, (h) not agree or commit to do any of the foregoing referred to in clauses (a) - (g), and (j) promptly advise Buyer of any fact, condition, occurrence or change known to the Investors or the Company that would cause of breach of transactions contemplated by this Section 7.2 or would have a Material Adverse EffectAgreement.

Conduct of the Business Pending Closing. From and after Except as set forth on Schedule 5.8, between the date hereof until and the Closing Datehereunder, except as set forth Purchaser will cause the Company to (unless otherwise consented to by Seller which consent will not be unreasonably withheld or unless disclosed in the disclosure schedules hereto or unless Buyer shall otherwise consent in writing, the Company and each its Subsidiaries shall: Disclosure Schedules): (a) carry on conduct the Business in its business Ordinary Course; (b) not enter into any Contract with any party, other than Contracts entered into in the ordinary course Ordinary Course, and not amend, modify or terminate any Contract other than in substantially the same manner in which it previously has been conducted and, to Ordinary Course without the extent consistent with such business, prior written consent of Purchaser; (c) use its commercially reasonable best efforts to preserve intact its present business organizationintact, to keep available in all material respects the services of its present officers and employeesEmployees, and to preserve for its business the good will relationships with its customers and others with whom it deals consistent with past practice; (d) maintain in full force and effect all of the customers, suppliers insurance policies listed on Schedule 3.19; (e) continue to maintain all of its usual books and others having business relations records in accordance with it, its past practices and not to make any material Tax elections; (bf) not amend its Certificate of Incorporation articles or Bylawsincorporation, bylaws or other organizational documents, ; (cg) not adopt a plan declare or make any non-cash dividend or other non-cash payment on or with respect to the Stock, redeem or otherwise acquire any securities or issue any securities or any, option, warrant or right relating thereto; (h) not pay any bonuses to any of liquidation its Employees, other than in the Ordinary Course or dissolution, as required by pre-existing Contracts; (i) not waive any right or cancel any material claim; (j) not increase the compensation or the rate of compensation payable to any of its Employees; (k) maintain its entity existence and not merge or consolidate withwith any other entity; (l) comply with all material respects with (i) provisions of any Contract and (ii) all applicable Laws consistent with past practices; (m) Not make any capital expenditures in excess of $5,000 per expenditure and/or $10,000 in the aggregate; (n) neither discuss nor negotiate with any other Person or entity the sale or other transfer, or purchase substantially all or a material portion Encumbrance (other than Permitted Encumbrances), of the assets of, or otherwise acquire any business of any person, the Stock; (do) not take incur any action described in Section 5.2(a)-(g), nor otherwise take any action or omit to take any actions which action or omission would result in a breach or inaccuracy of any of their representations and warranties contained herein in any material respect at, or as of any time prior Indebtedness for borrowed money; (p) keep the assets necessary to the Closing, (e) maintain conduct of its books of account Business in good order and records in its usual, regular and ordinary mannerrepair, consistent with its past practice, practice and subject to ordinary wear and tear; (fq) not take any action or omit to take any action which will result in a violation of any applicable law or cause a breach of any agreements, contracts or commitments deposit all funds received by it into such Company’s principal bank account; and (including, without limitation, r) use commercially reasonable efforts to effectuate the Contracts), except for violations or breaches which, individually or in the aggregate, would not have a Material Adverse Effect, (g) not issue, redeem, repurchase, split or reclassify any capital stock or other equity securities or issue, become a party to, redeem or repurchase any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to its issued or unissued capital stock, or its other equity securities, if any, or grant any stock appreciation, phantom stock or similar rights, (h) not agree or commit to do any of the foregoing referred to in clauses (a) - (g), and (j) promptly advise Buyer of any fact, condition, occurrence or change known to the Investors or the Company that would cause of breach of transactions contemplated by this Section 7.2 or would have a Material Adverse EffectAgreement.

Conduct of the Business Pending Closing. From and after (a) Except as otherwise expressly required by this Agreement or with the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), between the date hereof until and the Closing DateClosing, except as set forth in the disclosure schedules hereto or unless Buyer shall otherwise consent in writing, Sellers and the Company and each its Subsidiaries shall: (a) carry on its business shall conduct the Business in the ordinary course in substantially the same manner in which it previously has been conducted and, to the extent consistent with such business, of business and use its their commercially reasonable best efforts to preserve intact its the present business organization, to keep available in all material respects the services of its present officers and employees, and to preserve for its business the good will goodwill of the customers, suppliers and others having business relations with it, Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided on Schedule 6.10 or with the prior written consent of Buyer (which consent shall not amend its Certificate be unreasonably withheld, delayed or conditioned), Seller and the Company shall not: (i) except in the Ordinary Course of Incorporation Business, declare, set aside, make or Bylawspay any dividend or other distribution in respect of the capital stock of or other securities of, or other ownership interests in, the Company or any of the Subsidiaries or repurchase, redeem or otherwise acquired any outstanding equity interests or other securities of, or other ownership interests in, the Company or any of the Subsidiaries; (ii) transfer, issue, sell, pledge, encumber, or dispose of the equity interests or other securities of, or other ownership interests in, the Company or any of the Subsidiaries or granted options, warrants, calls or other rights to purchase or otherwise acquired equity interests or other securities of, or other ownership interests in, the Company or any of the Subsidiaries except J▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇ may exercise his outstanding warrant and option interests; (iii) effect any recapitalization, reclassification, stock split, combination or like change in the capitalization of the Company or any of the Subsidiaries, or amend the terms of any outstanding securities of the Company or any of the Subsidiaries; (iv) amend the organizational documentsdocuments of the Company or any of the Subsidiaries; (v) (A) increase the salary or other compensation of any director, manager, officer or Internal Employee or consultant, except in the Ordinary Course of Business, (cB) not adopt a grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any director, officer, Internal Employee or consultant, (C) increase the coverage or benefits available under any (or create any new) severance, retention, change in control or similar pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan of liquidation or dissolutionarrangement made to, and not merge or consolidate withfor, or purchase substantially all or a material portion with any of the directors, managers, officers, Internal Employees, agents or representatives of the Company or any of the Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, severance, retention, change in control, special pay, consulting, non-competition or similar agreement or arrangement with any directors, managers or officers of the Company or any of the Subsidiaries (or amend any such agreement) to which the Company or any of the Subsidiaries is a party; (vi) except in the Ordinary Course of Business, (A) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness; (B), pay, repay, discharge, purchase, repurchase or satisfy any Indebtedness of the Company or any of the Subsidiaries; or (C) modify the terms of any Indebtedness or other Liability; (vii) subject itself to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be encumbered, any of the properties or assets (whether tangible or intangible) of, or used by, the Company or any of the Subsidiaries; (viii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of, or used by, the Company or the Subsidiaries, other than for fair consideration in the Ordinary Course of Business; (ix) enter into or agree to enter into any merger or consolidation with any corporation or other entity, or engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities, of any other Person; (x) cancel or compromise any debt or claim or waive or release any material right of the Company or any of the Subsidiaries except in the Ordinary Course of Business; (xi) enter into any commitment for capital expenditures of the Company and the Subsidiaries in excess of $5,000 for any individual commitment and $10,000 for all commitments in the aggregate; (xii) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any of the Subsidiaries or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to the Company or any of the Subsidiaries; (xiii) introduce any material change with respect to the operation of the Company or any of the Subsidiaries, including any material change in the types, nature, composition or quality of its products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products or change its pricing, discount, allowance or return policies or grant any pricing, discount, allowance or return terms for any customer or supplier not in accordance with such policies; (xiv) enter into any transaction or enter into, modify or renew any Contract which by reason of its size, nature or otherwise is not in the Ordinary Course of Business; (xv) except for transfers of cash pursuant to normal cash management practices in the Ordinary Course of Business, make any investments in or loans to, or paid any fees or expenses to, or enter into or modify any Contract with any Related Persons; (xvi) make a change in its accounting or Tax reporting principles, methods or policies; (A) make, change or revoke any Tax election, settle or compromise any Tax claim or Liability or enter into a settlement or compromise, or change (or make a request to any Taxing Authority to change) any material aspect of its method of accounting for Tax purposes, or (B) prepare or file any Tax Return (or any amendment thereof) unless such Tax Return is prepared in a manner consistent with past practice and the Company provides Buyer a copy thereof (together with supporting papers) at least three (3) Business Days prior to the due date thereof for Buyer to review and approve; (xviii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Company or any Subsidiary to compete with or conduct any business or line of business in any persongeographic area; (xix) terminate, amend, restate, supplement, abandon or waive any rights under any (dA) not take Material Contract (including any action described in Section 5.2(a)-(gReal Property Lease, Personal Property Lease or Intellectual Property License), nor otherwise take other than in the Ordinary Course of Business or (B) Company Permit; (xx) settle or compromise any action pending or omit to take threatened Legal Proceeding or any actions which action claim or omission claims for, or that would result in a breach or inaccuracy loss of any of their representations and warranties contained herein in any material respect atrevenue of, or as of any time prior to the Closing, (e) maintain its books of account and records in its usual, regular and ordinary manner, consistent with its past practice, (f) not take any action or omit to take any action which will result in a violation of any applicable law or cause a breach of any agreements, contracts or commitments by it (including, without limitation, the Contracts), except for violations or breaches whichan amount that could, individually or in the aggregate, would reasonably be expected to be greater than $15,000; (xxi) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xxii) take any action which may adversely affect the ability of the Parties to consummate the transactions contemplated by this Agreement; (xxiii) enter into any new line of business, or discontinue any existing line of business; (xxiv) (A) delay or postpone the payment of accounts payable or other liabilities, other than those being disputed in good faith, or (B) accelerate or cause the acceleration of the collection or receipt of any accounts receivable, other than in the Ordinary Course of Business; (xxv) fail to keep in full force and effect all insurance policies, except for insurance policies that relate to a Plan, as of the date hereof (or insurance policies having substantially similar coverage); (xxvi) agree to do anything prohibited by this Section 6.10 or that could be reasonably expected to have a Material Adverse Effectmaterial adverse effect to the Company. (c) Nothing contained in this Agreement is intended to or shall give Purchaser, (g) not issuedirectly or indirectly, redeem, repurchase, split the right to control or reclassify any capital stock or other equity securities or issue, become a party to, redeem or repurchase any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to its issued or unissued capital stock, or its other equity securities, if any, or grant any stock appreciation, phantom stock or similar rights, (h) not agree or commit to do any direct the operations of the foregoing referred to in clauses (a) - (g), and (j) promptly advise Buyer of any fact, condition, occurrence or change known to the Investors Business or the Company that would cause of breach prior to the Closing. Prior to the Closing, Seller shall exercise, consistent with the terms and conditions of this Section 7.2 or would have a Material Adverse EffectAgreement, control and supervision over the operations of the Business and the Company.

Conduct of the Business Pending Closing. From Between the Effective Date and after the date hereof until the Closing Date, except as set forth in and subject to any limitations and restrictions created by the disclosure schedules hereto lack of available funds or the provisions of the Bankruptcy Case, unless Buyer shall otherwise consent consents in writing, (i) Seller shall conduct the Company Business only in, and each its Subsidiaries shall: Seller shall not take any action except in, the ordinary course of business consistent with past practice, (ii) Seller shall use commercially reasonable efforts to keep available the services of Seller Employees and to preserve the current relationships of the Business with such of the patients, suppliers, physicians and other persons with which Seller has significant business relations so to preserve substantially intact the Business, and (iii) Seller shall use commercially reasonable efforts to preserve intact the Acquired Assets. By way of amplification and not limitation, between the Effective Date and the Closing Date, the Seller shall not, and shall neither cause nor permit any of Seller’s Affiliates, Members, officers, directors, managers, employees and agents to, directly or indirectly, do, or agree to do, any of the Case 14-00279 Doc 478 Filed 08/15/14 Entered 08/15/14 16:29:05 Desc Main Document Page 21 of 111 692183/15/PHOENIX following with respect to the Business or the Acquired Assets, without the prior written consent of Buyer, except as permitted by an order of the Bankruptcy Court: (a) carry on its business Sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber, or authorize the sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of the Business, or any membership interests of Seller (including any membership interests held by any Member), or any of the Acquired Assets except in the ordinary course of business and in substantially the same a manner in which it previously has been conducted and, to the extent consistent with past practice; provided that the aggregate amount of any such businesssale or disposition (other than a sale or disposition of products or other inventory in the ordinary course of business consistent with past practice, use its reasonable best efforts as to preserve intact its present which there will be no restriction on the aggregate amount), or pledge, grant, transfer, lease, license, guarantee or encumbrance of such property or assets will not exceed $10,000; (b) Acquire (including by merger, consolidation or acquisition of stock or assets) for or in connection with the Business any interest in any corporation, partnership, other business organization, to keep available person or any division thereof or any assets, other than (i) acquisitions of assets in all material respects the services ordinary course of its present officers and employeesbusiness consistent with past practice that are not, and to preserve for its business in the good will aggregate, in excess of the customers, suppliers and others having business relations with it, (b) not amend its Certificate of Incorporation or Bylaws$10,000, or other organizational documents, (ii) purchases of inventory for resale or consumption (whether for cash or pursuant to an exchange) in the ordinary course of business and consistent with past practice; (c) not adopt a plan of liquidation Enter into, amend, terminate, cancel or dissolution, and not merge make any material change in any Contract or consolidate with, or purchase substantially all or a material portion of the assets of, or otherwise acquire any business of any person, Personal Property Lease; (d) not take Make or authorize any capital expenditure, dividends or distributions; (e) Increase the compensation payable or to become payable to any Seller Employee, except for increases in the ordinary course of business in accordance with past practices in salaries or wages of such employees, or grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any Seller Employee, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any Seller Employee; (f) Modify any material accounting policies, procedures or methods; (g) Take any action described that could result in Section 5.2(a)-(g), nor otherwise take the representations and warranties set forth in Article IV above becoming false or inaccurate; or (h) Take any action or omit to take any actions which action or omission would result in a breach or inaccuracy of any of their representations and warranties contained herein in any material respect at, or as of any time prior to the Closing, (e) maintain its books of account and records in its usual, regular and ordinary manner, consistent with its past practice, (f) not take any action or omit fail to take any action which will that could result in a violation of any applicable law or cause a breach of any agreements, contracts or commitments by it (including, without limitation, the Contracts), except for violations or breaches which, individually or in the aggregate, would not have a Material Adverse Effect, (g) not issue, redeem, repurchase, split or reclassify any capital stock or other equity securities or issue, become a party to, redeem or repurchase any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to its issued or unissued capital stock, or its other equity securities, if any, or grant any stock appreciation, phantom stock or similar rights, (h) not agree or commit to do any of the foregoing referred to in clauses (a) - (g), and (j) promptly advise Buyer of any fact, condition, occurrence or change known to the Investors or the Company that would cause of breach of this Section 7.2 or would have a Seller Material Adverse Effect.

Conduct of the Business Pending Closing. From and after Except as set forth on Schedule 7.6, from the date hereof until the earlier of the Closing DateDate or the termination of this Agreement in accordance with its terms: (a) Sellers shall conduct their operations in the Ordinary Course of Business, and they shall use their commercially reasonable efforts to preserve the present relationships between Sellers and their respective suppliers, distributors, customers and other Persons having business relationships with them; and (b) without limiting the generality of the foregoing, neither Seller shall, except with Buyer’s prior written consent: (i) make or grant any increases in salary or other compensation or bonuses to employees or grant any employee any severance or termination pay or establish, adopt, enter into or amend in any material respect any Employee Benefit Plan, except as set forth required by Law; (ii) make any general adjustment in the disclosure schedules hereto type or unless Buyer shall otherwise consent hours of work of its employees; (iii) acquire, exchange, lease, license or dispose of any properties or assets of a Company, other than in writingthe Ordinary Course of Business; (iv) enter into or amend any agreement, arrangement or transaction with Posteluk or any of his Affiliates, except for the Company amendments to real estate leases contemplated by Section 6.4(f) and each cash distributions to Posteluk as Sellers’ sole member; (v) amend or repeal any of Sellers’ organizational or governing documents; (vi) incur any indebtedness or grant or permit any of its Subsidiaries shall: assets or property to become subject to, any Lien (aother than Permitted Liens); (vii) carry on its business terminate or amend any agreement any material Acquired Contract or enter into any new material agreement, except in the ordinary course of business; (viii) change any method of accounting for Tax purposes; (ix) make or amend any elections for Tax purposes; (x) adopt a taxable year other than the calendar year; (xi) engage in substantially the same manner in which it previously has been conducted and, to the extent consistent with such business, use its reasonable best efforts to preserve intact its present business organization, to keep available in all material respects the services of its present officers and employees, and to preserve for its business the good will any other transaction outside of the customersOrdinary Course of Business, suppliers and others having business relations with it, except as may be contemplated by this Agreement; or (bxii) not amend its Certificate of Incorporation enter into any agreement or Bylaws, or other organizational documents, (c) not adopt a plan of liquidation or dissolution, and not merge or consolidate with, or purchase substantially all or a material portion of the assets of, or otherwise acquire any business of any person, (d) not take any action described in Section 5.2(a)-(g), nor otherwise take any action or omit arrangement to take any actions which action or omission would result in a breach or inaccuracy of any of their representations and warranties contained herein in any material respect at, or as of any time prior to the Closing, (e) maintain its books of account and records in its usual, regular and ordinary manner, consistent with its past practice, (f) not take any action or omit to take any action which will result in a violation of any applicable law or cause a breach of any agreements, contracts or commitments by it (including, without limitation, the Contracts), except for violations or breaches which, individually or in the aggregate, would not have a Material Adverse Effect, (g) not issue, redeem, repurchase, split or reclassify any capital stock or other equity securities or issue, become a party to, redeem or repurchase any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to its issued or unissued capital stock, or its other equity securities, if any, or grant any stock appreciation, phantom stock or similar rights, (h) not agree or commit to do any of the foregoing referred actions. Notwithstanding the foregoing, Sellers are expressly permitted to in clauses (a) - (g)make distributions to their sole member, Posteluk, and (j) promptly advise Buyer of any fact, condition, occurrence or change known to pay down the Investors or the Company that would cause of breach of this Section 7.2 or would have a Material Adverse Effectprincipal and interest on their indebtedness.

Conduct of the Business Pending Closing. From and after During the period from the date hereof of this Agreement until the Closing Dateor the earlier termination of this Agreement pursuant to Section 10.01 (the “Interim Period”), except as required by Law, as expressly contemplated by this Agreement, as set forth in on Schedule 7.01 or with the disclosure schedules hereto prior consent of Buyer, which consent shall not be unreasonably withheld, conditioned or unless Buyer shall otherwise consent in writingdelayed, the Company and each its Subsidiaries shall: shall (ai) carry on its business Business in the ordinary course in substantially the same manner in which it previously has been conducted andall material respects, to the extent (ii) use commercially reasonable efforts consistent with such business, use past practice to maintain its reasonable best efforts to preserve intact its present business organizationorganization intact, to keep available (without any requirement to provide additional compensation other than annual increases in all material respects the ordinary course of business) the services of its present current officers and employees, employees and to preserve for preserve, in all material respects, its business the good will of the relationships and goodwill with customers, suppliers suppliers, licensors, business partners, employees and others having material business relations with itit and (iii) terminate the employment or other business relationship of any employee, contractor, manager, officer or agent engaged by the Company and who is subject to the exclusion, debarment and eligibility provisions of applicable Law and has been so excluded, debarred or is otherwise ineligible to participate in any Government Programs pursuant to such Laws during the Interim Period. Without limiting the generality of the foregoing, except as required by Law, as expressly contemplated by this Agreement or as set forth on Schedule 7.01, the Company shall not, during the Interim Period, without the prior consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, do any of the following: (a) sell, lease, transfer, or assign any of its material assets, tangible or intangible (including Proprietary Rights) other than inventory sold for a fair consideration in the ordinary course of business; (b) not amend its Certificate enter into any Contract (or series of Incorporation related Contracts with the same counterparty or Bylawssuch counterparty’s Affiliates) or Permit (or series of related Permits), either (i) involving more than $250,000 on an annualized basis (individually or in the aggregate with respect to such counterparty or such counterparty’s Affiliates), or other organizational documents, (ii) outside the ordinary course of business and having a stated value of more than $100,000 on an annualized basis (individually or in the aggregate with respect to such counterparty or such counterparty’s Affiliates); (c) not adopt a plan of liquidation enter into any material Contract with any Governmental Entity or dissolutionaccelerate, and not merge or consolidate withterminate, modify, or purchase substantially all cancel any material Contract with any Governmental Entity to which the Company is a party or a material portion of the assets of, or otherwise acquire any business of any person, by which it is bound; (d) enter into any Contract (or series of related Contracts with the same counterparty or such counterparty’s Affiliates) with any Related Person or Affiliate of the Company or any Selling Party outside the ordinary course of business, that will not take any action described in Section 5.2(a)-(g), nor otherwise take any action be terminated at or omit to take any actions which action or omission would result in a breach or inaccuracy of any of their representations and warranties contained herein in any material respect at, or as of any time prior to the Closing, ; (e) maintain its books waive any right of account and records in its usual, regular and ordinary manner, consistent with its past practice, material value to the Company; (f) not take any action or omit to take any action which will result accelerate, terminate (other than in a violation of any applicable law or cause a breach of any agreements, contracts or commitments by it (including, without limitation, the Contractsaccordance with its terms), except for violations materially modify, or breaches which, individually cancel any Contract (or in series of related Contracts with the aggregate, would not have same counterparty or such counterparty’s Affiliates) involving more than $50,000 on an annualized basis to which the Company is a Material Adverse Effect, party or by which it is bound; (g) not issueexpressly allow any third party to impose any Lien (other than Permitted Liens) upon any of the Company’s assets, redeem, repurchase, split tangible or reclassify intangible (including any Proprietary Rights); (h) make any capital stock expenditure (or series of related capital expenditures) involving more than $50,000; (i) make any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans, and such acquisitions); (j) issue any note, bond, or other debt security or create, incur, assume, or guarantee any Indebtedness, other than (i) accrued interest or borrowings under any Contract with respect to Indebtedness listed on a Schedule to this Agreement and (ii) capital leases with an aggregate dollar amount not to exceed $250,000; (k) delay or postpone the payment of accounts payable and other Liabilities outside the ordinary course of business; (l) declare, set aside, or pay any non-cash dividend or make any non-cash distribution with respect to its equity securities interests; (m) enter into any employment Contract with any executive-level employee or issueany collective bargaining agreement, become a party towritten or oral, redeem grant any material salary, wage or repurchase any subscriptions, warrants, rights, options, convertible securities severance or other agreements similar obligation to any executive-level employee of the Company that materially increases the Company’s liabilities to such employee or commitments materially modify the terms of any character relating to such existing Contract or agreements; (n) adopt, amend, modify or terminate any Benefit Plan (other than annual renewals thereof in the ordinary course of business), any profit sharing, incentive, severance, policy, program or arrangement or any other Contract or commitment for the benefit of any of its issued current or unissued capital stockformer directors, officers, independent contractors and employees for any amounts that are not otherwise included as a Sellers’ Expense hereunder; (o) pay, or its commit to pay (whether or not in writing), any severance, termination, retention, change in control or similar payment to any current or former employee, independent contractor or director (regardless of whether such severance, termination, retention, change in control or similar payment has been paid pursuant to any Benefit Plan) other equity securitiesthan pursuant to the terms of a Contract listed on Schedule 4.09(a) or that will otherwise be paid in full by the Company prior to or at the Closing; (p) make any Tax election, if anyadopt or change any accounting method or policy (whether or not for Tax purposes), file any amended Tax Return, consent to or enter into any closing agreement or similar agreement with any Taxing Authority, consent to or settle or compromise any Tax claim or assessment or take any position inconsistent with past practice on any Tax Return; (q) make or grant any stock appreciationbonus or any wage, phantom stock salary or compensation increase in excess of $10,000 per year (on an individual basis) to any employee, manager or independent contractor, except (i) pursuant to the express terms of any Contract which is described on Schedule 4.09(a) or (ii) in connection with the hiring of non-executive level employees in the ordinary course of business; (r) transfer, assign or grant any license or sublicense of any rights under or with respect to any Proprietary Right other than in the ordinary course of business; (s) fail to (i) maintain insurance policies in effect as of the date hereof, and (ii) in the event of material casualty, loss or damage, to any material assets of the Company, repair or replace such assets with assets of comparable quality; (t) change its accounting policies and practices as in effect on the date of the latest Audited Financial Statements except as required by Law or GAAP or change its fiscal year; (u) amend its certificate of formation or operating agreement or similar rightsgoverning documents in a manner than would, or would reasonably be expected to, prevent or delay the consummation of this Agreement or the transactions contemplated hereby or could reasonably be expected to create any additional Liability upon the Company following the Closing, or Buyer or their respective Affiliates; and (hv) not agree or commit (whether or not in writing) to do any of the foregoing referred to in clauses (a) - (g), and (j) promptly advise Buyer of any fact, condition, occurrence or change known to the Investors or the Company that would cause of breach of this Section 7.2 or would have a Material Adverse Effectforegoing.

Conduct of the Business Pending Closing. From and after the date hereof until the Closing DateClosing, except (x) as set forth required by applicable law, (y) as otherwise expressly contemplated by this Agreement, or (z) with the prior written consent of Purchaser: (a) the Company shall, and Seller shall cause the Company to, conduct the Business only in the disclosure schedules hereto or unless Buyer ordinary and usual course consistent with past practices; (b) the Company shall, and Seller shall otherwise consent in writingcause the Company to, use commercially reasonable efforts to (A) preserve the present business operations, organization and goodwill of the Company and each its Subsidiaries shall: Subsidiaries, and (aB) carry on preserve the present relationships with customers, suppliers, licensors and licensees of the Company and its Subsidiaries; and (c) the Company shall not, and Seller shall not permit the Company to: (i) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary and usual course of business and consistent with past practice of liabilities and obligations incurred in the ordinary and usual course of business and consistent with past practice; (ii) borrow any amount or incur or become subject to any other liabilities (absolute or contingent), other than trade payables in the ordinary course in substantially the same manner in which it previously has been conducted andof business; (iii) declare or made any payment or distribution of cash or other property to Seller or purchase or redeem, or make any agreements to purchase or redeem, any of its equity securities; (iv) issue, deliver, sell, pledge or encumber, or authorize, propose or agree to the extent consistent with issuance, delivery, sale, pledge or encumbrance of, any shares of capital stock or bonds or any other security (or any right to acquire such businesscapital stock or other security, use its reasonable best efforts to preserve intact its present business organization, to keep available in all material respects including options) of the services Company or any of its present officers and employeesSubsidiaries, and to preserve for its business or any right, options or warrants with respect thereto; (v) effect any recapitalization, reclassification or like change in the good will capitalization of the customers, suppliers and others having business relations with it, (b) not amend Company or any of its Certificate of Incorporation or BylawsSubsidiaries, or other organizational documents, (c) not adopt a plan of liquidation declare or dissolution, and not merge or consolidate withpay dividends on, or purchase substantially all make other distributions in respect of, any of its capital stock, or a material portion 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, redeem or otherwise acquire, or modify or amend, any shares of capital stock of the assets ofCompany or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (vi) cancel any debts owing to the Company or waive any claims or rights, except in the ordinary course of business; (vii) sell, transfer, or otherwise acquire dispose of, any business of any personthe Assets; (viii) dispose of, (d) not take any action described in Section 5.2(a)-(g), nor otherwise take any action or omit fail to take reasonable steps to protect, or permit to lapse, any actions which action rights for the use of, any Intellectual Property, or omission would result in a breach dispose of, fail to take reasonable steps to protect, or inaccuracy of disclose to any of their representations and warranties contained herein Person any Proprietary Information or Confidential Information; (ix) make any change in any material respect atits methods of accounting or accounting practices; (x) write off as uncollectible any notes or accounts receivable, or as other than in the ordinary course of any time prior to the Closing, (e) maintain its books of account and records in its usual, regular and ordinary manner, business consistent with its past practice, ; (fxi) not take make any action capital expenditures or omit to take capital expenditure commitments; (xii) enter into any action which will result transaction or series of related transactions providing for payments in a violation excess of any applicable law or cause a breach of any agreements, contracts or commitments by it (including, without limitation, the Contracts), except for violations or breaches which, individually or $25,000 in the aggregate, whether or not in the ordinary course of business; (xiii) make any material change in the manner in which products or services are developed or marketed; (xiv) loan or advance any amount to, or make any payments to or receive any payments from, or sell, transfer or lease any of its assets to, any Affiliate, except in the ordinary course of business consistent with past practice; (xv) discharge or satisfy any Encumbrance or pay any obligation or liability (absolute or contingent), other than current liabilities paid in the ordinary course of business consistent with past practices; (xvi) make any change in the cash management or working capital management of the Company and its Subsidiaries other than in the ordinary course of business; (xvii) (A) terminate, cancel or request any material change in, or agree to any material change in, any Subsisting Contract, or (B) enter into any contract which would not have constitute a Material Adverse EffectSubsisting Contract as defined herein, other than in the ordinary course of business consistent with past practices; (gxviii) not issueadopt, redeemagree to adopt, repurchaseor make any announcement regarding the adoption of (i) any new pension, split or reclassify any capital stock retirement or other equity securities employee benefit plan, program or issuepolicy or (ii) any amendment to any existing plan, become a party topolicy or program; (xix) increase the compensation, redeem bonuses or repurchase any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments benefits of any character relating to its issued or unissued capital stockemployee, officer, director, or consultant of the Company or any of its Subsidiaries, other equity securitiesthan annual increases in the ordinary course of business consistent with past practices at the regularly scheduled times; (xx) amend or modify any of the organizational documents of the Company; (xxi) make any material election with respect to Taxes or make any change in any such election; (xxii) change its methods of accounting in effect at November 30, if any2005, except as required by changes in GAAP as agreed to by the Company's independent public accountants or grant as may be required by applicable law; (xxiii) make any stock appreciationcharitable contributions or pledges; (xxiv) settle any pending Legal Proceeding to which the Company or any of its Subsidiaries is a party, phantom stock or similar rightsexcept as otherwise listed on Schedule 4.06(c)(xxiv); or (xxv) suffer, (h) not authorize, agree or commit to do take any of the foregoing referred to actions set forth in clauses this subparagraph (a) - (gc), and (j) promptly advise Buyer of any fact, condition, occurrence or change known to the Investors or the Company that would cause of breach of this Section 7.2 or would have a Material Adverse Effect.