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

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from the date of this Agreement to the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course of business consistent with past practice. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, (ii) declare, set aside or pay any dividend or distribution payable in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent or any of its Subsidiaries by a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSE; or (d) agree, authorize or otherwise to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from agrees that between the date of this Agreement to and the Effective TimeTime or the time, if any, at which this Agreement is terminated pursuant to Section 8.1, except (a) as set forth in Section 5.2 of the Parent Disclosure Letter, (b) as specifically required by this Agreement, (c) as required by Law or (d) as consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent shall, (i) shall and shall cause each of its Subsidiaries Parent Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice. In addition, including by using reasonable best efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with Governmental Entities and with customers, suppliers and other Persons with whom it and they have material business relations; provided, however, that no action that is specifically permitted by any of clauses (a) through (i) of Section 5.2(ii) shall be deemed a breach of this clause (i), and without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from (ii) agrees that between the date of this Agreement to and the Effective TimeTime or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, (ii) declare, set aside authorize or pay any dividend dividends on or make any distribution payable with respect to its outstanding shares (whether in cash cash, assets, stock or otherwise (other than (A) stock dividends securities of Parent or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(eParent Subsidiaries), (B) quarterly cash except dividends and distributions paid to stockholders or made on a pro rata basis by Parent Subsidiaries in the ordinary course of Parent in amounts business consistent with past practice and (C) the payment of dividends or distributions by a wholly owned Parent Subsidiary to Parent or another wholly owned Parent Subsidiary; (b) split, combine, reduce or reclassify any of its Subsidiaries issued or unissued shares, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, its shares, except for any such transaction by a wholly owned Parent Subsidiary which remains a wholly owned Parent Subsidiary after consummation of such transaction; (c) authorize or announce an intention to authorize, or enter into agreements providing for, any acquisitions of a substantial equity interest in or a substantial portion of the assets of any Person or any business or division thereof, in each case whether by merger, consolidation, combination, acquisition of stock or assets or formation of a joint venture or otherwise that, in any case, would reasonably be expected to prevent or materially delay or impede the consummation of the Transactions; (d) amend the Parent Governing Documents or permit Merger Sub or any Significant Subsidiary of Parent)Parent to adopt any amendments to its governing documents; (e) issue, deliver, grant, sell, pledge, dispose of or encumber, or (iii) redeemauthorize the issuance, purchasedelivery, acquire grant, sale, pledge, disposition or offer to purchase encumbrance of, any shares, voting securities or acquire any shares of its capital stock other equity interest in the Parent or any options, warrants or rights to acquire any of its capital stock Parent Subsidiary or any security securities convertible into or exchangeable for its capital any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares, voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than (i) issuances of Parent Shares in respect of any exercise of Parent stock options or the vesting or settlement of Parent Equity Awards, (ii) transactions between Parent and a wholly owned Parent Subsidiary or between wholly owned Parent Subsidiaries, (iii) issuances of Parent Equity Awards, (iv) merge or consolidate with any Person or acquire any material business other issuances of any Person shares of Parent Stock for an amount not exceeding $100,000,000 in the aggregate and (v) other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of in connection with the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSEFinancing; or (df) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) acquisitions of Parent Shares tendered by holders of Parent Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto (ii) the acquisition by the Parent of Parent Equity Awards in connection with the forfeiture of such awards, (iii) transactions between the Parent and a wholly owned Parent Subsidiary or between wholly owned Parent Subsidiaries and (iv) other acquisitions of shares of Parent Stock for an amount not exceeding $100,000,000 in the aggregate; (g) make or change any material Tax election, change any Tax accounting period for purposes of a material Tax or material method of Tax accounting, file any material amended Tax Return, settle or compromise any audit or proceeding relating to a material amount of Taxes, except in the ordinary course of business, agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes, enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to any material Tax, or surrender any right to claim a material Tax refund; (h) convene any meeting of the holders of Parent Stock for the purpose of revoking or varying the authority of the directors of Parent to allot Parent Stock; or (i) agree, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that between the date hereof and the earlier of the date of the Effective Time or the date, if any, on which this Agreement is validly terminated pursuant to Section 9.1, except as set forth in Section 6.02 6.2 of the Parent Disclosure Letter or otherwise expressly Letter, as specifically permitted or contemplated required by this Agreement (or Agreement, as required by applicable Law or as consented to in writing by the regulations Company (such consent not to be unreasonably withheld, conditioned or requirements of any stock exchange or regulatory organization applicable to Parentdelayed), from the date of this Agreement to the Effective Time, Parent shallshall not, and shall cause each of its Subsidiaries Parent Subsidiary not to, conduct directly or indirectly: (a) amend, modify, waive, rescind, change or otherwise restate the Parent Governing Documents (whether by merger, consolidation, operation of law or otherwise) in a manner that would materially and adversely affect the Company Stockholders, or adversely affect the Company Stockholders relative to other holders of Parent Common Stock; (b) authorize, declare, set aside, make or pay any dividends on or make any distribution with respect to its business outstanding shares of capital stock or other equity interests (whether in cash, assets, stock or other securities of Parent or any Parent Subsidiary), except (i) dividends and distributions paid or made in the ordinary course of business consistent with past practice. In additionby the Parent Subsidiaries to Parent or any other wholly owned Parent Subsidiary and (ii) for transactions that would require an adjustment to the Offer Consideration and the Merger Consideration pursuant to Section 1.1(d) and Section 3.1(d), respectively, and without limiting for which the generality proper adjustment is made; (c) split, combine, subdivide, reduce or reclassify any of its capital stock or other equity interests, except for (i) any such transaction involving only wholly owned Parent Subsidiaries and (ii) any transactions that would require an adjustment to the Offer Consideration and the Merger Consideration pursuant to Section 1.1(d) and Section 3.1(d), respectively, and for which the proper adjustment is made; (d) liquidate (completely or partially), dissolve or adopt any plan or resolution providing for any of the foregoing, except in each case, with respect to Parent, Purchaser or any direct or indirect parent entity of Purchaser; (e) acquire (including by merger, consolidation or acquisition of stock or assets or any other means) or publicly announce an intention to so acquire, or enter into any agreements providing for matters set forth any acquisitions of, any equity interests in Section 6.02 or a material portion of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, Parent shall not (unless required by applicable Law or the regulations or requirements assets of any stock exchange Person (or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld business or delayed: (adivision thereof) that (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, (ii) declare, set aside or pay any dividend or distribution payable in cash or otherwise (other than would require (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to filing by Parent or any of its Subsidiaries by of a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer Notification and Report Form pursuant to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case HSR Act with respect to this clause such acquisition or (iv)B) any pre-closing approvals, if such action would be reasonably likely to delay the consummation consents, waivers or clearances under any Antitrust Laws of the Offer; jurisdictions set forth on Section 7.2 of the Parent Disclosure with respect to such acquisition and (bii) take any action or omit to take any action that is intended would, or would reasonably be expected to, prevent (A) any waiting period (or extensions thereof) applicable to result in the Transactions under the HSR Act from expiring or terminating prior to the Outside Date or (B) Parent or Purchaser from obtaining, prior to the Outside Date, any of the conditions required pre-closing approvals, consents, waivers or clearances applicable to the Offer Transactions under any Antitrust Laws of the jurisdictions set forth in Annex A or on Section 7.2 of the conditions to the Merger in Article VII not being satisfiedParent Disclosure Letter; (cf) take any action, or knowingly fail to take any action, which action or failure to act would, or would be reasonably expected to, prevent the Offer and the Merger, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; (g) subject to Section 7.2, take or cause to be taken any action that would result in a failure reasonably be expected to maintain materially impede or prevent the trading consummation of the Parent Stock Transactions on or before the NYSEOutside Date; or (dh) agreeagree or authorize, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that, during the Interim Period, except as set forth in Section 6.02 6.2 of the Parent Disclosure Letter or described in this Agreement, unless Target shall otherwise expressly permitted consent in writing (which consent shall not be unreasonably withheld or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parentdelayed), from the date of this Agreement to the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, will conduct its business only in the ordinary and usual course of business consistent with past practice. In addition, and without will use commercially reasonable efforts to keep available the services of its respective current key officers and preserve its respective current relationships with their advisors, suppliers and other Persons with whom they have business relationships. Without limiting the generality of the foregoing, and as an extension thereof, except for matters as set forth in Section 6.02 6.2 of the Parent Disclosure Letter or otherwise expressly permitted by described in this Agreement, from during the date of this Agreement to the Effective TimeInterim Period, Parent shall not (unless required by applicable Law do, or the regulations or requirements of any stock exchange or regulatory organization applicable agree to Parent)do, and nor shall not Parent permit any of its Subsidiaries toto do, do or agree to do, directly or indirectly, any of the following without the prior written consent of the Company, Target (which consent shall not be unreasonably withheld or delayed: (a) ): (i) amend make or propose to amend Parent’s certificate of incorporation enter into any material agreements or bylaws or similar governing documents, commitments; (ii) declareincur or assume any material Liabilities, set aside other than in connection with the transactions contemplated hereby; (iii) declare or pay any dividend dividends on or distribution payable make other distributions (whether in cash cash, stock or otherwise (other than (Aproperty) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders in respect of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent or any of its Subsidiaries by a Subsidiary capital stock; (iv) split, combine or reclassify any of Parent)its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (v) repurchase, redeem or otherwise acquire any shares of its capital stock; (vi) issue, deliver or sell, or (iii) redeemauthorize or propose the issuance, purchasedelivery or sale of, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security securities convertible into or exchangeable for any such shares of its capital stock, or (iv) merge any rights, warrants or consolidate with any Person or options to acquire any material business such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, (vii) award or grant, or authorize or propose the award or grant of any Person options, warrants or other rights of any kind to acquire any stock or other securities of Parent or any of its Subsidiaries or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of Parent or any of its Subsidiaries, other than a merger, consolidation the issuance or acquisition among wholly-owned Subsidiaries grant of options to employees of the Surviving Corporation; (viii) modify or adjust any outstanding options, warrants or other rights of any kind to acquire any stock or other securities of Parent or any of its Subsidiaries to acquire shares of Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause Common Stock; (iv), if such action would be reasonably likely to delay the consummation of the Offer; (bix) take any action that would, or omit to take any action that is intended or would could reasonably be expected to to, result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; ; (cx) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSE; or (d) agree, authorize or enter into any agreement or otherwise make any commitment to take do any of the foregoing actions. Notwithstanding the foregoing; or (xi) solicit, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiationsdiscussions, discussions and Contracts relating toor enter into any agreements or arrangements, and may consummatewhether written or oral, acquisitions of other Persons with any Person regarding (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (iA) the fair market value acquisition (through any means) of the total consideration Parent (including licenseor any of it is assets or properties) by any Person, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iiiB) the negotiation investment in or consummation acquisition of (through any means) Parent, or any Affiliate of Parent, of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the MergerPerson.

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)agrees that, from between the date of this Agreement to and the Effective Time, except as set forth in Section 5.2 of the Parent shallDisclosure Schedule or as contemplated by any other provision of this Agreement, unless the Company shall otherwise agree in writing, which agreement shall not be unreasonably withheld or delayed, the businesses of Parent and the Parent Subsidiaries shall be conducted only in, and Parent and the Parent Subsidiaries shall cause each of its Subsidiaries tonot take any action except in, conduct its business in the ordinary course of business consistent with past practicebusiness. In addition, By way of amplification and without limiting the generality of the foregoingnot limitation, except for matters as set forth in Section 6.02 5.2 of the Parent Disclosure Letter Schedule or otherwise expressly permitted as contemplated by any other provision of this Agreement, from the date of this Agreement to the Effective Time, Parent shall not (unless required by applicable Law Laws or the regulations NASDAQ regulations) cause or requirements of permit Parent or any stock exchange Parent Subsidiary, or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries their officers, directors, employees and agents, to, do between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following following, without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) amend or otherwise change its Articles of Incorporation or By- laws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, (i) amend or propose to amend Parent’s certificate any shares of incorporation or bylaws or similar governing documents, (ii) declare, set aside or pay any dividend or distribution payable in cash or otherwise (other than (A) capital stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent or any of its Subsidiaries by a Parent Subsidiary of Parent)any class, or (iii) redeem, purchase, acquire securities convertible or offer to purchase exchangeable or acquire exercisable for any shares of its such capital stock stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable or exercisable securities, or any other ownership interest (including, without limitation, any phantom interest) of Parent or any Parent Subsidiary or (ii) other than in the ordinary course of business and in a manner consistent with past practice, any property or assets of Parent or any Parent Subsidiary, except (A) the issuance of Parent Common Stock upon the exercise of Parent Options, the grant of options to purchase up to an additional 50,000 shares of Parent Common Stock under the existing Parent stock option plans and the issuance of shares upon exercise thereof, (B) pursuant to contracts or agreements in force at the date of this Agreement and (C) that Parent may adopt and amend a share purchase rights plan of the type created by the Rights Agreement, with such terms and provisions as Parent may determine (except that any such plan and amendment shall exempt the transactions contemplated by this Agreement); (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except (i) for regular quarterly cash dividends at a rate not in excess of $.0625 per share of Parent Common Stock declared and paid in accordance with past practice, and (ii) for dividends paid by any Parent Subsidiary to Parent or a Parent Subsidiary in the ordinary course) or enter into any security convertible into or exchangeable for agreement with respect to the voting of its capital stock; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (i) acquire (including, without limitation, by merger, consolidation, or (ivacquisition of stock or assets) merge any interest in any corporation, partnership, other business organization, person or consolidate with any Person or acquire any material business of any Person division thereof (other than a mergerwholly owned Parent Subsidiary) or any assets, consolidation other than acquisitions of assets in the ordinary course of business; (ii) incur any indebtedness for borrowed money or acquisition among wholly-owned Subsidiaries issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person for borrowed money, except for (A) indebtedness for borrowed money incurred in the Company ordinary course of business or a merger consolidation in connection with transactions otherwise permitted under this Section 5.2, (B) indebtedness incurred to refinance any existing indebtedness or acquisition involving solely the Company and its wholly-owned Subsidiaries)(C) other indebtedness for borrowed money under existing credit facilities; or (iii) enter into or amend any contract, in each case with respect to this clause (iv)agreement, commitment or arrangement that, if such action fully performed, would not be reasonably likely to delay the consummation of the Offerpermitted under this Section 5.2(e); (bf) take any action with respect to accounting policies or omit to procedures, other than actions in the ordinary course of business and consistent with past practice or except as required by changes in GAAP; (g) take any action that would prevent or impede the Merger from qualifying (A) for "pooling-of-interests" accounting treatment or (B) as a reorganization within the meaning of Section 368 of the Code; (h) take any action that is intended or would may reasonably be expected to result in any of the conditions to the Offer its representations and warranties set forth in Annex A this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfiedsatisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable Law; (ci) take amend any action that would result existing plan or program to provide, or adopt a new plan or program providing, for the payment to any class of employees of any additional compensation or benefits in a failure to maintain connection with the trading of the Parent Stock on the NYSEtransactions contemplated by this Agreement; or (dj) agree, authorize or enter into any formal or informal agreement or otherwise make any commitment to take do any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from agrees that between the date of this Agreement to and the Effective TimeTime or the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except (i) as set forth in Section 6.2 of Parent Disclosure Letter, (ii) as expressly required by this Agreement, (iii) as may be required by Law or (iv) as consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent shall, (x) shall and shall cause each of its Subsidiaries to, conduct its business in all material respects in the ordinary course of business and use commercially reasonable efforts to preserve its business organization intact, and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors and tenants, and shall not, and (y) shall not permit any of its Subsidiaries to: (a) amend its declaration of trust, limited partnership agreement, operating agreement, bylaws, limited liability company agreement or equivalent organizational documents or waive any provision of Article VII of the Parent Declaration; (b) split, combine, subdivide or reclassify any shares of beneficial interest of Parent or any of its Subsidiaries; (c) declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or any of its Subsidiaries or other equity securities or ownership interests in Parent or any of its Subsidiaries, except for (A) the authorization and payment by Parent of dividends, payable monthly in accordance with past practice for the period up to the Closing Date at a rate not to exceed a monthly rate of $0.0425 per Parent Common Share, and (B) the declaration and payment of dividends or other distributions to Parent by any directly or indirectly wholly owned Parent Subsidiary; provided, however, that, notwithstanding the restriction on dividends and other distributions in this Section 6.2(c), Parent and its Subsidiaries shall, subject to Section 6.7, be permitted to make Special Distributions; (d) except as required by a Parent Benefit Plan, redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any Parent Equity Interests, except from holders of (i) Restricted Parent Shares, Parent RSUs, Parent PSUs, or Trustee RSUs in full or partial payment of any purchase price and any applicable Taxes payable by such holder upon the lapse of restrictions on the Restricted Parent Shares, Parent RSUs, Parent PSUs or Trustee RSUs and (ii) fractional interests of Parent Equity Interests solely with respect to the fractional interests; (e) except as required by any Parent Leases, acquire or agree to acquire (including by merger, consolidation or acquisition of stock or assets) any real property, personal property (other than personal property at a total cost of less than Two Million U.S. Dollars ($2,000,000) in the aggregate), corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof, except (A) acquisitions by Parent or any wholly owned Parent Subsidiary of or from an existing wholly owned Parent Subsidiary or joint venture partners pursuant to existing purchase rights or options or (B) the pending acquisitions set forth on Section 6.2(e) of Parent Disclosure Letter (the pending acquisitions described in this clause (B), the “Parent Pending Acquisitions”); (f) sell, pledge, lease, assign, transfer dispose of or encumber, or effect a deed in lieu of foreclosure with respect to, any property or assets or voluntarily exercise any purchase or sale rights or rights of first offer pursuant to any agreement with a Parent Joint Venture where the exercise of any such right is not otherwise required under the circumstances pursuant to the terms of the applicable agreement, except (A) as set forth on Section 6.2(f) of Parent Disclosure Letter, (B) pledges and encumbrances on property and assets in the ordinary course of business and that would not be material to any Parent Property or any assets of Parent or any of its Subsidiaries, (C) with respect to property or assets with a value of less than Two Million U.S. Dollars ($2,000,000) in the aggregate, and (D) sales to joint venture partners pursuant to existing purchase rights or options; (g) incur, create, assume, refinance or replace any Indebtedness for borrowed money or issue or amend or modify the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Parent Subsidiary), except (A) Indebtedness incurred under Parent’s existing revolving credit facility for working capital purposes in the ordinary course of business (including to the extent necessary to pay dividends permitted under this Agreement and to pay Indebtedness that matures), (B) funding any Parent Pending Acquisitions, or (C) the refinancing of any existing Indebtedness of Parent or any of its Subsidiaries to the extent that (1) the material terms and conditions of any newly incurred Indebtedness are reasonable market terms and (2) the aggregate principal amount of such Indebtedness is not increased as a result of such refinancing; (h) make any material loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, trustees, affiliates, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of another entity, other than (A) by Parent or a wholly owned Parent Subsidiary to Parent or a wholly owned Parent Subsidiary, (B) loans or advances (i) required to be made under any of Parent Leases or ground leases affecting Parent Properties or (ii) made to non-Affiliate tenants in the ordinary course of business and consistent with past practice, or (C) the loans or advances set forth on Section 6.2(h) of Parent Disclosure Letter; (i) enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any rights or claims under, any Parent Material Contract (or any contract that, if existing as of the date of this Agreement, would be a Parent Material Contract), other than (A) any termination or renewal in accordance with the terms of any existing Parent Material Contract that occur automatically without any action by Parent or any of its Subsidiaries, (B) the entry into any modification or amendment of, or waiver or consent under, any mortgage or related agreement to which Parent or any of its Subsidiaries is a party as required or necessitated by this Agreement or the Transactions; provided that any such modification, amendment, waiver or consent does not increase the principal amount thereunder or otherwise materially adversely affect Parent, any of its Subsidiaries or the Company, (C) as may be reasonably necessary to comply with the terms of this Agreement, (D) to preserve the commercial interests of Parent and its Subsidiaries consistent with past practice; provided, that any actions taken by Parent pursuant to this clause (D) shall not have an adverse economic impact on Parent in excess of an aggregate of One Million U.S. Dollars ($1,000,000) per year in the case of a recurring payment or Five Million U.S. Dollars ($5,000,000) in the aggregate in the case of any non-recurring payment obligation, (E) the entry into any amendment, termination, waiver, release, compromise or assignment of any Parent Lease made in the ordinary course of business, or (F) actions permitted under clauses (A) through (C) of Section 6.2(g); (j) except as set forth on Section 6.2(j) of Parent Disclosure Letter, enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any rights or claims under, any Parent Lease (or any lease for real property that, if existing as of the date of this Agreement, would be a Parent Lease), except to preserve the commercial interests of the Company and its Subsidiaries consistent with past practice, provided, that any actions taken by Parent pursuant to this Section 6.2(j) shall not have an adverse economic impact on Parent in excess of an aggregate of One Million U.S. Dollars ($1,000,000) per year in the case of a recurring payment or Five Million U.S. Dollars ($5,000,000) in the aggregate in the case of any non-recurring payment obligation; (k) settle or compromise (A) any material legal action, suit or arbitration proceeding, in each case made or pending against Parent or any of its Subsidiaries, including any such matter relating to Taxes, and (B) any legal action, suit or proceeding involving any present, former or purported holder or group of holders of Parent Common Shares, in each case, where the amount paid by Parent or any of its Subsidiaries in settlement exceeds Five Hundred Thousand U.S. Dollars ($500,000) individually and is not covered by insurance; (l) except as required by Law or by a Parent Benefit Plan, (A) enter into, materially amend or terminate any Parent Benefit Plan, (B) except in the ordinary course of business consistent with past practice. In addition, and without limiting increase the generality compensation or employee benefits of any employee or independent contractor, (C) grant any awards under a Parent Equity Plan, other than with respect to the foregoinggrant of annual equity awards to trustees of Parent, (D) fund any rabbi trust or (E) hire or terminate (other than for cause) any employee of Parent; (m) make any material change to its methods of accounting in effect at December 31, 2014, except for matters set forth as required by a change in Section 6.02 GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of the Parent Disclosure Letter or otherwise expressly permitted by this Agreementbusiness, from the date of this Agreement with respect to the Effective Timeaccounting policies, Parent shall not (unless required by applicable Law GAAP or the regulations SEC; (n) enter into any material new line of business; (o) take any action, or requirements of fail to take any stock exchange or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Companyaction, which consent shall not would reasonably be unreasonably withheld or delayed: (a) (i) amend or propose expected to amend Parent’s certificate of incorporation or bylaws or similar governing documents, (ii) declare, set aside or pay any dividend or distribution payable in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant cause Parent to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid fail to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent qualify as a REIT or any of its Subsidiaries to cease to be treated as a partnership or disregarded entity for federal income tax purposes (other than as contemplated by Section 6.9) or as a qualified REIT subsidiary, a taxable REIT subsidiary or a REIT under the applicable provisions of Section 856 of the Code, as the case may be; (p) adopt a plan of merger, complete or partial liquidation or resolutions providing for or authorizing such merger, liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization, except in connection with any Parent Pending Acquisitions permitted pursuant to Section 6.2(e); (q) amend or modify the compensation terms or any other obligations of Parent contained in the engagement letters entered into with Parent Financial Advisor, in a manner materially adverse to Parent, any of its Subsidiaries or the Company or engage other financial advisers in connection with the transactions contemplated by this Agreement; (r) make any capital expenditures or other investments except (A) in accordance with the Parent CapEx Budget, (B) as required to be made under any of the Parent Leases or ground leases affecting the Parent Properties, (C) as required to be made pursuant to any Law, (D) for ordinary course capital expenditures not to exceed $500,000 in the aggregate or (E) as reasonably required to satisfy any health or safety concerns at any of the Parent Properties; (s) except for (A) issuances by a wholly owned Parent Subsidiary of Parent)to Parent or another wholly owned Parent Subsidiary, or (iiiB) redeemissuances as a result of the exercise of any Restricted Parent Shares or pursuant to a Parent Equity Plan that is settled with Parent Common Shares as of the date of this Agreement, purchaseissue, acquire sell, pledge, dispose, encumber or offer to purchase grant any Parent Common Shares or acquire any shares of its the Parent Subsidiaries’ capital stock stock, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any Parent Common Shares or any of its the Parent Subsidiaries’ capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSEequity interests; or (dt) agreeauthorize, authorize or otherwise enter into any contract, agreement, commitment or arrangement to take do any of the foregoing actionsforegoing. Notwithstanding anything to the foregoingcontrary set forth in this Agreement, but subject to Section 6.7, nothing in this Agreement shall prohibit Parent shall be entitled from taking any action, at any time or from time to (a) repurchasetime, retire that in the reasonable judgment of Parent, upon advice of counsel, is reasonably necessary for Parent to maintain its qualification as a REIT under the Code for any period or refinance outstanding indebtedness portion thereof ending on or debt securities and (b) enter into negotiationsprior to the Effective Time or to avoid incurring entity level income or excise Taxes under the Code, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization including making dividend or other transaction, and regardless distribution payments to shareholders of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration Parent in accordance with this Agreement (including license, royalty Section 6.7) or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Mergerotherwise.

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from agrees that between the date of this Agreement to and the Effective TimeTime or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (a) as set forth in Section 5.2 of the Parent Disclosure Letter, (b) as specifically required by this Agreement, (c) as required by Law or (d) as consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent shall, (i) shall and shall cause each of its Subsidiaries Parent Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice. In addition, and without limiting the generality of the foregoinguse reasonable best efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly suppliers and other Persons with whom it and they have material business relations; provided, however, that no action that is specifically permitted by any of clauses (a) through (i) of Section 5.2(ii) shall be deemed a breach of this Agreementclause (i), from and (ii) agrees that between the date of this Agreement to and the Effective TimeTime or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, shares or other securities of Parent or any Parent Subsidiary), except (i) amend or propose that Parent may continue the declaration and payment of regular quarterly cash dividends on the Parent Shares, not to amend Parent’s certificate of incorporation or bylaws or similar governing documentsexceed $0.17 per share for each quarterly dividend, with usual record and payment dates for such dividends in accordance with past dividend practice, and (ii) declare, set aside for dividends and distributions paid or pay any dividend or distribution payable made on a pro rata basis by a Parent Subsidiary in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders the ordinary course of Parent in amounts business consistent with past practice and (C) the payment of dividends or distributions by a wholly-owned Parent Subsidiary to Parent or any of its Subsidiaries by a Subsidiary of Parent)another wholly-owned Parent Subsidiary; (b) split, combine, reduce or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire reclassify any of its capital stock (excluding the Consolidation, provided that the Consolidation shall not be consummated prior to the Effective Time), or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock, except for any such transaction by a wholly-owned Parent Subsidiary which remains a wholly-owned Parent Subsidiary after consummation of such transaction; (c) except as required by applicable Law or any security Parent Benefit Plan in existence as of the date hereof, (i) increase the compensation or benefits payable or to be provided to any of its directors, officers, employees or consultants, (ii) grant or increase to any of its directors, officers, employees or consultants any severance, termination, change in control or retention pay, (iii) pay or award, or commit to pay or award, any cash bonuses or cash incentive compensation (other than the payment of unpaid cash bonuses or other cash incentive compensation accrued as of December 31, 2015), (iv) enter into any employment, severance, change in control or retention agreement with any of its directors, officers, employees or consultants (other than offer letters that do not otherwise provide for severance, change in control or retention payments or benefits), (v) establish, adopt, enter into, amend or terminate any collective bargaining agreement (other than a renewal of an existing collective bargaining agreement in the ordinary course of business) or Parent Benefit Plan (or a plan or arrangement that would be a Parent Benefit Plan if in existence as of the date hereof), or (vi) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to be provided to any of its directors, officers, employees or consultants; (d) make any material change in financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, applicable Law or SEC policy; (e) authorize or announce an intention to authorize, or enter into agreements providing for, any acquisitions of an equity interest in or the assets of any Person or any business or division thereof, or any mergers, consolidations or business combinations, except for (i) such transactions that collectively do not have purchase prices that exceed $1,000,000 in the aggregate (provided that any such transactions, individually or in the aggregate, would not reasonably be expected to prevent or materially delay or impede the consummation of the Transactions), (ii) capital expenditures otherwise permitted by Section 5.2(ii)(n), (iii) transactions between Parent and a wholly-owned Parent Subsidiary or between wholly-owned Parent Subsidiaries or (iv) the creation of new wholly-owned Subsidiaries organized to conduct or continue activities otherwise permitted by this Agreement; (f) amend the Parent Governing Documents, and shall not permit any Subsidiary of Parent to adopt any amendments to its governing documents; (g) issue, deliver, grant, sell, pledge, dispose of or encumber, or authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any shares in its capital stock (including restricted stock), voting securities or other equity interest in Parent or any Parent Subsidiary or any securities convertible into or exchangeable for any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares in its capital stock, voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units or take any action to cause to be exercisable any otherwise unexercisable Parent Equity Award under any existing Parent Equity Plan (except as otherwise provided by the express terms of any Parent Equity Award outstanding on the date hereof), other than (i) issuances of Parent Shares (A) in respect of any exercise of Parent Options under Parent Equity Awards or the vesting, lapse of restrictions with respect to or settlement of Parent Equity Awards outstanding as of the date hereof, or issued in accordance with this Agreement, in each case, in accordance with their respective terms, or (ivB) merge pursuant to the terms of the Parent Stock Option Plans or consolidate with any Person (ii) transactions between Parent and a wholly-owned Subsidiary of Parent or acquire any material business of any Person (other than a merger, consolidation or acquisition among between wholly-owned Subsidiaries of Parent; (h) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) redemptions or acquisitions of Parent Shares tendered by holders of Parent Equity Awards in order to satisfy obligations to pay the Company or a merger consolidation exercise price and/or Tax withholding obligations with respect thereto, (ii) the redemption or acquisition involving solely by Parent of Parent Equity Awards in connection with the Company forfeiture of such awards and (iii) transactions between Parent and a wholly-owned Parent Subsidiary or between wholly-owned Parent Subsidiaries; (i) redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (i) any Indebtedness for borrowed money among Parent and its wholly-owned Parent Subsidiaries or among wholly-owned Parent Subsidiaries, (ii) Indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any existing Indebtedness for borrowed money of Parent or any of the Parent Subsidiaries maturing on or prior to the six (6) month anniversary of the date of such refinancing, (iii) guarantees by Parent of Indebtedness for borrowed money of Parent Subsidiaries or guarantees by Parent Subsidiaries of Indebtedness for borrowed money of Parent or any Parent Subsidiary, which Indebtedness is incurred in compliance with this clause (i), (iv) Indebtedness for borrowed money incurred pursuant to agreements entered into by Parent or any Parent Subsidiary in effect prior to the execution of this Agreement and set forth in Section 5.2(ii)(i) of the Parent Disclosure Letter; provided that any such Indebtedness shall be drawn solely in the ordinary course of business, and in an aggregate amount not to exceed $28,000,000, and (v) transactions at the stated maturity of such Indebtedness and required amortization or mandatory prepayments; (j) make any loans to any other Person, except for loans among Parent and its wholly-owned Parent Subsidiaries or among Parent’s wholly-owned Parent Subsidiaries; (k) sell, lease, license, transfer, exchange, swap or otherwise dispose of, or subject to any Lien (other than Parent Permitted Liens), any of its properties or assets (including shares in the capital of the Parent Subsidiaries), except (i) pursuant to an existing agreement in effect prior to the execution of this Agreement that is listed on Section 5.2(ii)(k) of the Parent Disclosure Letter, (ii) in the case of Liens, as required in connection with any Indebtedness permitted to be incurred pursuant to Section 5.2(ii)(i), (iii) such transactions with neither a fair market value of the assets or properties nor an aggregate purchase price that exceeds $1,000,000 in the aggregate for all such transactions and (iv) for transactions among Parent and its wholly-owned Parent Subsidiaries or among wholly-owned Parent Subsidiaries; (l) compromise or settle any claim, litigation, investigation or proceeding, in each case made or pending by or against Parent or any of the Parent Subsidiaries (for the avoidance of doubt, including any compromise or settlement with respect to this clause (ivmatters in which any of them is a plaintiff), if or any of their officers and directors in their capacities as such, other than the compromise or settlement of claims, litigation, investigations or proceedings that: (i) is for an amount (in excess of insurance proceeds) not to exceed, for any such action would be reasonably likely compromise or settlement individually or in the aggregate, $5,000,000, (ii) does not impose any injunctive relief on Parent and the Parent Subsidiaries and (iii) does not provide for the license covenant not to delay the consummation assert, or otherwise granting of the Offerany rights, of or under any Intellectual Property; (bm) make or change any material Tax election, change any Tax accounting period for purposes of a material Tax or material method of Tax accounting, file any material amended Tax Return, settle or compromise any audit or proceeding relating to a material amount of Taxes, agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes, enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to any material Tax, surrender any right to claim a material Tax refund, or take any action or omit which would cause Parent to take any action that is intended or would reasonably be expected treated as a domestic corporation for U.S. federal income tax purposes pursuant to result in any Section 7874(b) of the conditions to Code from and after the Offer set forth in Annex A or Closing Date as a result of the conditions to the Merger in Article VII not being satisfiedTransactions; (cn) take any action that would result except in a failure to maintain the trading accordance with Parent’s anticipated monthly capital expenditures for its 2016 fiscal year described on Section 5.2(ii)(n) of the Parent Stock on Disclosure Letter, make any new capital expenditure or expenditures, or commit to do so; (o) except in the NYSEordinary course of business consistent with past practice or in connection with any transaction to the extent specifically permitted by any other subclause of this Section 5.2(ii), (i) enter into any Contract that would, if entered into prior to the date hereof, be a Parent Material Contract, or (ii) materially modify, materially amend or terminate any Parent Material Contract or waive, release or assign any material rights or claims thereunder; or (dp) agree, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 6.02 5.2 of the Parent Disclosure Letter or otherwise expressly Schedule, as permitted or contemplated by any other provision of this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange the Nasdaq, unless the Company shall otherwise agree in writing (which shall not be unreasonably withheld or regulatory organization applicable to Parentdelayed), from the date of this Agreement to the Effective Time, Parent shallwill, and shall will cause each of its Subsidiaries Parent Subsidiary to, (A) conduct its business operations in the ordinary course of business substantially consistent with past practicepractice and (B) use its reasonable best efforts to preserve substantially intact its business organization, goodwill and present relationships with its material customers, material suppliers, key employees and regulatory authorities. In addition, and without Without limiting the generality of the foregoing, except for matters as set forth in Section 6.02 5.2 of the Parent Disclosure Letter Schedule, as permitted or otherwise expressly permitted contemplated by this Agreement, from the date any other provision of this Agreement to the Effective Time, Parent shall not (unless or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)the Nasdaq, Parent shall not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of the Company, Company (which consent shall not be unreasonably withheld or delayed:): (a) (i) Section 5.2.1 amend or propose to amend Parent’s certificate its articles of incorporation or bylaws or similar governing equivalent organizational documents, (ii) declare, set aside ; Section 5.2.2 issue or pay any dividend or distribution payable in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders authorize the issuance of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent or any of its Subsidiaries by a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock Parent Common Stock or securities convertible or exchangeable or exercisable for any shares of Parent Common Stock, or any options, warrants or other rights of any kind to acquire any shares of Parent Common Stock, other than (a) the authorization or issuance of Parent Common Stock or securities convertible or exchangeable or exercisable for any shares of Parent Common Stock, or any options, warrants or other rights of any kind to acquire any shares of Parent Common Stock to the employees or directors of Parent or the Parent Subsidiaries in connection with compensation and benefits arrangements, including in connection with salary stock arrangements in effect on the date of this Agreement (which may be continued at their current levels through the Effective Time at Parent’s sole discretion), (b) without limiting the generality of the preceding clause, the authorization or issuance of Parent Common Stock upon the exercise of Parent Options or warrants outstanding on the date hereof (including the TARP Warrant), (c) the authorization or issuance of Parent Common Stock as may be necessary or desirable to obtain the consent or approval of any Governmental Authority with respect to the Merger and the transactions contemplated hereby, or as may be otherwise necessary or desirable to maintain an appropriate amount of regulatory capital in connection with the consummation of the Merger and the transactions contemplated hereby, (d) the authorization or issuance of Parent Common Stock in accordance with the provisions of Article II in connection with the consummation of the Merger, and (e) to the extent permitted under Section 5.2.6; Section 5.2.3 sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets of Parent or any Parent Subsidiary, except in the ordinary course of business; Section 5.2.4 declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof), with respect to any of its capital stock other than (A) dividends paid by a wholly owned Parent Subsidiary to Parent or any security convertible into other wholly owned Parent Subsidiary or exchangeable for (B) quarterly dividends at or below the rate paid to shareholders in 2011; Section 5.2.5 other than in the case of a wholly owned Parent Subsidiary, reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly (other than cashless exercise of Parent Options), any of its capital stock, other Equity Interests or other securities; Section 5.2.6 acquire (ivincluding, without limitation, by merger, consolidation, or acquisition of stock or assets) merge any interest in any person or consolidate with any Person assets in any transaction that would require the approval of a Banking Authority, other than acquisitions pursuant to which the consideration to be paid by the Parent and the Parent Subsidiaries therefor, in the aggregate, is less than $250,000,000 (in cash or acquire securities of Parent) that would not reasonably be expected to impede or delay the receipt of any Necessary Governmental Approval in any material business respect; Section 5.2.7 take any action that would prevent the Merger from qualifying as a reorganization within the meaning of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries Section 368(a) of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such Code; Section 5.2.8 take any action that would be reasonably likely to materially delay the consummation effectiveness of the OfferRegistration Statement; Section 5.2.9 settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated hereby; Section 5.2.10 (bA) incur, assume or prepay any long-term or short-term debt or issue any debt securities, except for borrowings or prepayments under existing lines of credit or in the ordinary course of business and refinancing of existing indebtedness (it being understood that incurrence or prepayment of indebtedness in the ordinary course of business of Parent Bank includes deposits, FHLB borrowings, repurchase agreements and similar liabilities in the ordinary course of Parent Bank’s business consistent with past practice) and except for borrowings solely for the purpose of satisfying Parent’s obligations under Sections 2.1.5 and 5.19; or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any material obligations of any other person, except for obligations of Parent or any wholly owned Parent Subsidiary incurred in compliance with clause (A); Section 5.2.11 make, change or rescind any Tax election, change a Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any Tax closing agreement, settle any Tax claim or assessment relating to the Parent or any Parent Subsidiaries, surrender any right to claim a refund of Taxes, consent to extension or waiver of the statute of limitations applicable to any Tax, or take any action or omit to take similar action, except in each case for any action such actions that is intended or would not reasonably be expected to result have, individually or in the aggregate, a Parent Material Adverse Effect, taking into account the relative benefits of taking any such action; or Section 5.2.12 authorize or enter into any agreement or otherwise make any commitment to do any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSE; or (d) agree, authorize or otherwise to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, except as set forth in Section 6.02 5.2 of the Parent Disclosure Letter or otherwise expressly Schedule, as specifically permitted or contemplated by any other provision of this Agreement (or Agreement, as required by applicable Law or as consented to in writing by the regulations Company (which consent will not be unreasonably withheld, delayed or requirements of any stock exchange or regulatory organization applicable to Parentconditioned), from the date of this Agreement to the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course of business consistent with past practice. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayednot: (a) amend the Parent Governing Documents in any manner that would reasonably be expected to materially delay, impede or prevent the consummation of the transactions contemplated by this Agreement or amends the terms of the Parent Shares in any manner that would reasonably be expected to be adverse in any material respect to holders of Shares; (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, (iib) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash cash, stock, property or otherwise (other than (Aa combination thereof) stock dividends or distributions for which an appropriate adjustment is effected pursuant with respect to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent or any of its Subsidiaries capital stock, other than the quarterly dividend set forth on Section 5.2(b) of the Parent Disclosure Schedule and any share repurchases pursuant to the share repurchases program approved by a Subsidiary the board of Parent)directors of Parent on July 23, 2015; (c) reclassify, combine, split, subdivide or amend the terms of, directly or indirectly, any of its capital stock or other Equity Interests, or (iii) redeem, purchase, acquire authorize or offer to purchase propose the issuance of any other securities in lieu of or acquire any in substitution for shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or other Equity Interests; (ivd) merge or consolidate Parent with any Person or acquire any material business adopt a plan of any Person (complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other than a merger, consolidation or acquisition among wholly-owned Subsidiaries reorganization of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSEParent; or (de) agree, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that, between the date of this Agreement and the Effective Time, except (i) as set forth in Section 6.02 of the Parent Disclosure Letter Schedule, (ii) for any actions taken by Parent relating to any other acquisitions or otherwise business combinations (including, without limitation, the Nectarine Merger) or (iii) as expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from the date other provision of this Agreement to Agreement, unless the Effective TimeCompany shall otherwise agree in writing, (x) the respective businesses of Parent shalland the Parent Subsidiaries shall be conducted only in, and Parent and the Parent Subsidiaries shall cause each of its Subsidiaries tonot take any action except in, conduct its business in the ordinary course of business consistent with past practice. In addition, practice and without limiting (y) Parent shall use all reasonable efforts to keep available the generality services of such of the foregoingcurrent officers, significant employees and consultants of Parent and the Parent Subsidiaries and to preserve the current relationships of Parent and the Parent Subsidiaries with such of the corporate partners, customers, suppliers and other persons with which Parent or any Parent Subsidiary has significant business relations in order to preserve substantially intact its business organization. By way of amplification and not limitation, except for matters (i) as set forth in Section 6.02 of the Parent Disclosure Letter Schedule, (ii) for any actions taken by Parent relating to any other acquisitions or otherwise business combinations (including, without limitation, the Nectarine Merger) or (iii) as expressly permitted contemplated by any other provision of this Agreement, from neither Parent nor any Parent Subsidiary shall, between the date of this Agreement to and the Effective Time, Parent shall not (unless required by applicable Law directly or the regulations indirectly, do, or requirements of any stock exchange or regulatory organization applicable agree to Parent)do, and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend Parent’s otherwise change its certificate of incorporation or bylaws or similar governing equivalent organizational documents, ; (iib) declare, set aside aside, make or pay any dividend or distribution other distribution, payable in cash cash, stock, property or otherwise (other than (A) stock otherwise, with respect to any of its capital stock, except that any Parent Subsidiary may pay dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or make other distributions to Parent or any of its Subsidiaries by a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfiedParent Subsidiary; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSE; or (d) agreereclassify, authorize combine, split, subdivide or redeem, purchase or otherwise to take acquire, directly or indirectly, any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.its capital stock;

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (a) as set forth in Section 6.02 5.2 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated Letter, (b) as specifically required by this Agreement (including the Restructuring Transactions), (c) as required by Law or (d) as consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent (i) shall and shall cause each Parent Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice and use reasonable best efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers and other Persons with whom it and they have material business relations; provided, however, that no action that is specifically permitted by any of clauses (a) through (p) of Section 5.2(ii) shall be deemed a breach of this clause (i), and (ii) Parent shall not, and shall not permit any Parent Subsidiary to: (a) authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, shares or other securities of Parent or any Parent Subsidiary), except (i) that Parent may continue the declaration and payment of regular quarterly cash dividends on the Parent Shares, not to exceed $0.31 per share for each quarterly dividend, and (ii) for dividends and distributions paid or made on a pro rata basis by a Parent Subsidiary in the ordinary course of business consistent with past practice or by a wholly-owned Parent Subsidiary to Parent or another wholly-owned Parent Subsidiary; (b) split, combine, reduce or reclassify any of its capital stock (excluding the Consolidation, provided that the Consolidation shall not be consummated prior to the Effective Time), or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock, except for any such transaction by a wholly-owned Parent Subsidiary which remains a wholly-owned Parent Subsidiary after consummation of such transaction; (c) except as required by applicable Law or any Parent Benefit Plan, (i) increase the regulations compensation or requirements of benefits payable or to be provided to any stock exchange or regulatory organization applicable to Parent), from the date of this Agreement to the Effective Time, Parent shall, and shall cause each of its Subsidiaries todirectors, conduct its business officers, employees or consultants (other than increases in annual base salaries and incentive compensation opportunities at times and in amounts in the ordinary course of business consistent with past practice. In addition), (ii) grant or increase to any of its directors, officers, employees or consultants any severance, termination, change in control or retention pay, (iii) pay or award, or commit to pay or award, any cash bonuses or cash incentive compensation (other than the payment of accrued and without limiting the generality unpaid cash bonuses or other cash incentive compensation), (iv) enter into any employment, severance, retention or change in control agreement with any of its directors, officers, employees or consultants (other than offer letters that do not otherwise provide for severance, retention or change in control payments or benefits), (v) establish, adopt, enter into, amend or terminate any collective bargaining agreement or Parent Benefit Plan (or a plan or arrangement that would be a Parent Benefit Plan if in existence as of the foregoingdate hereof), or (vi) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to be provided to any of its directors, officers, employees or consultants; (d) make any material change in financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, applicable Law or SEC policy; (e) authorize or announce an intention to authorize, or enter into agreements providing for, any acquisitions of an equity interest in any Person or any business or division of any Person (including by means of an asset purchase), or any mergers, consolidations or business combinations, except for matters (i) such transactions that collectively do not have purchase prices that exceed $25 million in the aggregate (provided that any such transactions, individually or in the aggregate, would not reasonably be expected to prevent or materially delay or impede the consummation of the Transactions), (ii) capital expenditures otherwise permitted by Section 5.2(ii)(n), (iii) transactions between Parent and a wholly-owned Parent Subsidiary or between wholly-owned Parent Subsidiaries or (iv) the creation of new wholly-owned Subsidiaries organized to conduct or continue activities otherwise permitted by this Agreement; (f) amend the Parent Governing Documents, and shall not permit Merger Sub or any Significant Subsidiary of Parent to adopt any amendments to its governing documents; (g) issue, deliver, grant, sell, pledge, dispose of or encumber, or authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any shares in its capital stock (including restricted stock), voting securities or other equity interest in Parent or any Parent Subsidiary or any securities convertible into or exchangeable for any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares in its capital stock, voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units or take any action to cause to be exercisable any otherwise unexercisable Parent Equity Award under any existing Parent Equity Plan (except as otherwise provided by the express terms of any Parent Equity Award outstanding on the date hereof), other than issuances of Parent Shares (i) in respect of any exercise of Parent Share Options under Parent Equity Awards or the vesting, lapse of restrictions with respect to or settlement of Parent Equity Awards, outstanding as of the date hereof or issued in accordance with this Agreement, in each case, in accordance with their respective terms, (ii) pursuant to the terms of the Parent ESPP, or (iii) transactions between Parent and a wholly-owned Parent Subsidiary or between wholly-owned Parent Subsidiaries; (h) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) redemptions or acquisitions of Parent Shares tendered by holders of Parent Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (ii) the redemption or acquisition by Parent of Parent Equity Awards in connection with the forfeiture of such awards and (iii) transactions between Parent and a wholly-owned Parent Subsidiary or between wholly-owned Parent Subsidiaries; (i) redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (i) any Indebtedness for borrowed money among Parent and its wholly-owned Parent Subsidiaries or among wholly-owned Parent Subsidiaries, (ii) Indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any existing Indebtedness for borrowed money of Parent or any of the Parent Subsidiaries maturing on or prior to the six (6) month anniversary of the date of such refinancing, (iii) guarantees by Parent of Indebtedness for borrowed money of Parent Subsidiaries or guarantees by Parent Subsidiaries of Indebtedness for borrowed money of Parent or any Parent Subsidiary, which Indebtedness is incurred in compliance with this clause (i), (iv) Indebtedness for borrowed money incurred pursuant to (A) agreements entered into by Parent or any Parent Subsidiary in effect prior to the execution of this Agreement and set forth in Section 6.02 5.2(ii)(i)(A) of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, (ii) declare, set aside or pay any dividend or distribution payable in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders other agreements that may be entered into following the date hereof and set forth in Section 5.2(ii)(i)(B) of the Parent in amounts consistent with past practice Disclosure Letter, (v) transactions at the stated maturity of such Indebtedness and required amortization or mandatory prepayments and (Cvi) the payment of dividends or distributions Indebtedness for borrowed money not to exceed $100 million in aggregate principal amount outstanding at any time incurred by Parent or any of its the Parent Subsidiaries by a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a mergerin accordance with clauses (i) through (v); provided that nothing contained herein shall prohibit Parent and the Parent Subsidiaries from making guarantees or obtaining letters of credit or surety bonds for the benefit of commercial counterparties in the ordinary course of business consistent with past practice; (j) make any loans to any other Person, consolidation or acquisition except for loans among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company Parent and its wholly-owned Parent Subsidiaries or among Parent’s wholly-owned Parent Subsidiaries; (k) sell, lease, license, transfer, exchange, swap or otherwise dispose of, or subject to any Lien (other than Parent Permitted Liens), any of its properties or assets (including shares in the capital of the Parent Subsidiaries), except (i) pursuant to an existing agreement in effect prior to the execution of this Agreement that is listed on Section 5.2(ii)(k) of the Parent Disclosure Letter, (ii) in the case of Liens, as required in connection with any Indebtedness permitted to be incurred pursuant to Section 5.2(ii)(i), (iii) such transactions with neither a fair market value of the assets or properties nor an aggregate purchase price that exceeds $25 million in the aggregate for all such transactions and (iv) for transactions among Parent and its wholly-owned Parent Subsidiaries or among wholly-owned Parent Subsidiaries; (l) compromise or settle any claim, litigation, investigation or proceeding, in each case made or pending by or against Parent or any of the Parent Subsidiaries (for the avoidance of doubt, including any compromise or settlement with respect to this clause (ivmatters in which any of them is a plaintiff), if or any of their officers and directors in their capacities as such, other than the compromise or settlement of claims, litigation, investigations or proceedings that: (i) is for an amount (in excess of insurance proceeds) not to exceed, for any such action would be reasonably likely compromise or settlement individually or in the aggregate, $50 million, (ii) does not impose any injunctive relief on Parent and the Parent Subsidiaries and (iii) does not provide for the license covenant not to delay the consummation assert, or otherwise granting of the Offerany rights, of or under any Intellectual Property; (bm) make or change any material Tax election, change any Tax accounting period for purposes of a material Tax or material method of Tax accounting, file any material amended Tax Return, settle or compromise any audit or proceeding relating to a material amount of Taxes, agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes, enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to any material Tax, surrender any right to claim a material Tax refund, or take any action which would cause the Company or omit any Company Subsidiary to take any action that is intended or would reasonably be expected to result in any treated as an “expatriated entity” within the meaning of Section 7874(a)(2) of the conditions Code as a result of the Transactions; (n) except in the ordinary course of business consistent with past practice, or in accordance with Parent’s anticipated 2015 or 2016 capital expenditures described on Section 5.2(ii)(n) of the Parent Disclosure Letter, make any new capital expenditure or expenditures, or commit to do so; (o) except in the ordinary course of business consistent with past practice or in connection with any transaction to the Offer extent specifically permitted by any other subclause of this Section 5.2(ii) and excluding any Material Contract of the type described in Section 4.20(a)(ii)(B) (but subject to the other restrictions set forth in Annex A or the conditions this Section 5.2(ii)), (i) enter into any Contract that would, if entered into prior to the Merger in Article VII not being satisfied; date hereof, be a Parent Material Contract, or (cii) take materially modify, materially amend or terminate any action that would result in a failure to maintain the trading of the Parent Stock on the NYSEMaterial Contract or waive, release or assign any material rights or claims thereunder; or (dp) agree, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that, between the date of this Agreement and the Effective Time, except (i) as set forth in Section 6.02 of the Parent Disclosure Letter Schedule, (ii) for any actions taken by Parent relating to any other acquisitions or otherwise business combinations (including, without limitation, the RCA Merger) or (iii) as expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from the date other provision of this Agreement to Agreement, unless the Effective TimeCompany shall otherwise agree in writing, (x) the respective businesses of Parent shalland the Parent Subsidiaries shall be conducted only in, and Parent and the Parent Subsidiaries shall cause each of its Subsidiaries tonot take any action except in, conduct its business in the ordinary course of business consistent with past practice. In addition, practice and without limiting (y) Parent shall use all reasonable efforts to keep available the generality services of such of the foregoingcurrent officers, significant employees and consultants of Parent and the Parent Subsidiaries and to preserve the current relationships of Parent and the Parent Subsidiaries with such of the corporate partners, customers, suppliers and other persons with which Parent or any Parent Subsidiary has significant business relations in order to preserve substantially intact its business organization. By way of amplification and not limitation, except for matters (i) as set forth in Section 6.02 of the Parent Disclosure Letter Schedule, (ii) for any actions taken by Parent relating to any other acquisitions or otherwise business combinations (including, without limitation, the RCA Merger) or (iii) as expressly permitted contemplated by any other provision of this Agreement, from neither Parent nor any Parent Subsidiary shall, between the date of this Agreement to and the Effective Time, Parent shall not (unless required by applicable Law directly or the regulations indirectly, do, or requirements of any stock exchange or regulatory organization applicable agree to Parent)do, and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend Parent’s otherwise change its certificate of incorporation or bylaws or similar governing equivalent organizational documents, ; (iib) declare, set aside aside, make or pay any dividend or distribution other distribution, payable in cash cash, stock, property or otherwise (other than (A) stock otherwise, with respect to any of its capital stock, except that any Parent Subsidiary may pay dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or make other distributions to Parent or any of its Subsidiaries by a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfiedParent Subsidiary; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSE; or (d) agreereclassify, authorize combine, split, subdivide or redeem, purchase or otherwise to take acquire, directly or indirectly, any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.its capital stock;

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from agrees that between the date of this Agreement and the Company Merger Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (a) as set forth in Section 5.2 of the Effective TimeParent Disclosure Letter, (b) as required pursuant to this Agreement, (c) as may be required by Law or (d) as consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent shall, and shall cause each of its the Parent Subsidiaries to, (x) conduct its business in all material respects in the ordinary course of business consistent with past practice (it being understood that this clause (x) shall not restrict Parent from the issuance of any Parent Equity Interests if such issuance is permitted by Section 5.2(d) or the incurrence of any indebtedness or the entry into any transactions if such incurrence or entry is permitted by Section 5.2(i)) and (y) use their respective reasonable best efforts to maintain in all material respects their assets and properties in their current condition (ordinary wear and tear excepted), preserve their business organizations intact in all material respects, and maintain existing relations and goodwill with Governmental Entities, alliances, customers, lenders, tenants, employees and business associates in all material respects. Without limiting the generality of the foregoing, and except (i) as set forth in Section 5.2 of the Parent Disclosure Letter, (ii) as required pursuant to this Agreement, (iii) as required by Law or (iv) as consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), between the date of this Agreement and the Company Merger Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, Parent shall not, and shall not permit any Parent Subsidiary to, directly or indirectly: (a) amend its charter, bylaws or equivalent organizational documents in a manner adverse to the Company; (b) adjust, split, combine, subdivide or reclassify any shares of capital stock of Parent or any Parent Subsidiary; (c) subject to the second sentence of Section 6.16(a), declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent, Parent Equity Interests of Parent, or other equity securities or ownership interests in Parent, except for the authorization and payment by Parent of dividends for the period up to the Closing Date (including the portion of any month in which the Closing occurs) at a rate not to exceed (i) in respect of Parent Common Stock, 100% of Parent’s Cash Available for Distribution (the dividend described in this clause (c)(A)(i), the “Parent Permitted Common Dividend”), (ii) $0.54688 per share of Parent Series A Preferred Stock, (iii) $0.51563 per share of Parent Series B Preferred Stock, (iv) $0.55469 per share of Parent Series C Preferred Stock, (v) $0.53125 per share of Parent Series D Preferred Stock and (vi) $0.54688 per share of Parent Series E Preferred Stock (the dividends described in clauses (c)(A)(ii) – (c)(A)(vi) together with the Parent Permitted Common Dividend, the “Parent Permitted Dividends”); (d) (A) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, directly or indirectly, any capital stock or other Parent Equity Interests, except with respect to the settlement of any Parent RSU Awards pursuant to their terms, (B) grant any Person any right or option to acquire any Parent Equity Interests, (C) issue, deliver or sell any additional capital stock or other Parent Equity Interests, or (D) enter into any Contract with respect to the sale, voting registration or repurchase of any capital stock or other Parent Equity Interests; provided, however, that (1) Parent and/or Parent Subsidiaries, as applicable, may (i) grant annual equity awards to directors of Parent in the ordinary course of business consistent with past practice. In addition, and without limiting (ii) grant equity awards to employees of Parent or a Parent Subsidiary in the generality ordinary course of business consistent with past practice, (iii) issue shares of Parent Common Stock, LTIP Units or other Parent Equity Interests (A) in connection with the settlement of any Parent RSU Awards outstanding as of the foregoingdate hereof, except for matters (B) pursuant to the Parent Equity Plan as in effect as of the date hereof or (C) pursuant to the terms of the agreements or other awards set forth in on Section 6.02 5.2(d) of the Parent Disclosure Letter Letter, (iv) issue Parent Equity Interests in connection with a public offering or otherwise expressly permitted by this Agreement, from on market terms and (v) enter into any Contract with respect to any of the date of this Agreement to the Effective Time, Parent shall not foregoing clauses (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parenti) through (iv), and shall (2) the Parent Subsidiaries may issue equity solely to form special purpose entities that will be wholly owned directly or indirectly by the Company as may be reasonably required for the completion of any pending acquisitions; (e) enter into a line of business that is not permit commercial real estate; (f) knowingly take any action, or knowingly fail to take any action, which action or failure would reasonably be expected to cause Parent to fail to qualify as a REIT; (g) enter into, amend, modify or terminate, or grant any waiver under the NSAM Management Agreement or any similar external management or advisory agreement in a manner that is adverse to the stockholders of its Subsidiaries toParent, taken as a whole; (h) take any action under the Parent Governing Documents or otherwise (including by resolution) that would give dissenters’, appraisal or similar rights to the holders of Parent Common Stock with respect to the Mergers or the other Transactions; (i) incur indebtedness (other than the Debt Financing) or enter a merger agreement, acquisition agreement or disposition agreement or authorize a liquidation, dissolution, consolidation, bankruptcy or other reorganization, in each case that would reasonably be expected to materially delay the Closing or have a material adverse effect on the ability of the Parent, Merger Sub or Partnership Merger Sub to consummate the Mergers; or (j) authorize, or enter into any contract, agreement, commitment or arrangement to do any of the following without foregoing. Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit Parent from taking any action, at any time or from time to time, that in the reasonable judgment of Parent, upon advice of counsel to Parent, is reasonably necessary for Parent to maintain its qualification as a REIT under the Code for any period or portion thereof ending on or prior written consent of to the CompanyCompany Merger Effective Time or to avoid incurring entity level income or excise Taxes under the Code, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, (ii) declare, set aside or pay any including making dividend or other distribution payable in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid payments to stockholders of Parent in amounts consistent accordance with past practice and (C) the payment of dividends this Agreement or distributions to otherwise. If Parent or any of its Subsidiaries by a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit determines that it is necessary to take any action that is intended or would such action, it shall notify the Company as soon as reasonably be expected to result in any of the conditions practicable prior to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading taking of the Parent Stock on the NYSE; or (d) agree, authorize or otherwise to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Mergeraction.

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from agrees that between the date of this Agreement to and the Effective TimeTime or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (a) as set forth in Section 5.2 of the Parent Disclosure Letter, (b) as specifically required by this Agreement, (c) as required by Law or (d) as consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent shall, (i) shall and shall cause each of its Subsidiaries Parent Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice. In addition, including by using reasonable best efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers and other Persons with whom it and they have material business relations; provided, however, that no action that is specifically permitted by any of clauses (a) through (i) of Section 5.2(ii) shall be deemed a breach of this clause (i), and without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from (ii) agrees that between the date of this Agreement to and the Effective TimeTime or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, (ii) declare, set aside authorize or pay any dividend dividends on or make any distribution payable with respect to its outstanding shares (whether in cash cash, assets, stock or otherwise (other than (A) stock dividends securities of Parent or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(eParent Subsidiaries), (B) quarterly cash except dividends and distributions paid to stockholders or made on a pro rata basis by Parent Subsidiaries in the ordinary course of Parent in amounts business consistent with past practice and (C) the payment of dividends or distributions by a wholly owned Parent Subsidiary to Parent or another wholly owned Parent Subsidiary; (b) split, combine, reduce or reclassify any of its Subsidiaries issued or unissued shares, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, its shares, except for any such transaction by a wholly owned Parent Subsidiary which remains a wholly owned Parent Subsidiary after consummation of Parentsuch transaction; (c) authorize or announce an intention to authorize, or enter into agreements providing for, any acquisitions of an equity interest in or the assets of any Person or any business or division thereof, or any mergers, consolidations or business combinations or any acquisitions of equity or assets, mergers, consolidations or business combinations if, in any such case, any such transaction would reasonably be expected to prevent or materially delay or impede the consummation of the Transactions; (d) amend the Parent Governing Documents, and shall not permit Merger Sub to amend its organizational documents; (e) issue, deliver, grant, sell, pledge, dispose of or encumber, or authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any shares (including restricted shares), voting securities or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock other equity interest in Parent or any options, warrants or rights to acquire any of its capital stock Parent Subsidiary or any security securities convertible into or exchangeable for its capital any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares, voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than (i) issuances of Parent Shares in respect of any exercise of Parent Share Options or the vesting, lapse of restrictions with respect to or settlement of Parent Equity Awards, (ii) transactions between Parent and a wholly owned Parent Subsidiary or between wholly owned Parent Subsidiaries, (iii) issuances of Parent Equity Awards, (iv) merge other issuances of Parent Shares for an amount not exceeding $5 million in the aggregate, (v) pledges of equity interests of any Parent Subsidiary pursuant to the terms of any agreement governing existing Indebtedness of Parent or consolidate any Parent Subsidiary, and (vi) in connection with any Person acquisitions of an equity interest in or any assets of any person or any business or division thereof, or any mergers, consolidations or business combinations permitted by clause (c) above; or (f) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) acquisitions of Parent Shares tendered by holders of Parent Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto (ii) the acquisition by Parent of Parent Equity Awards in connection with the forfeiture of such awards, (iii) transactions between Parent and a wholly owned Parent Subsidiary or between wholly owned Parent Subsidiaries and (iv) other acquisitions of Parent Shares for an amount not exceeding $10 million in the aggregate; (g) make or change any material business Tax election, change any Tax accounting period for purposes of a material Tax or material method of Tax accounting, file any Person (other than material amended Tax Return, settle or compromise any audit or proceeding relating to a mergermaterial amount of Taxes, consolidation agree to an extension or acquisition among wholly-owned Subsidiaries waiver of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case statute of limitations with respect to this clause (iv)a material amount of Taxes, if such action would be reasonably likely to delay enter into any “closing agreement” within the consummation meaning of Section 7121 of the Offer; Code (bor any similar provision of state, local, or non-U.S. Law) with respect to any material Tax, surrender any right to claim a material Tax refund, or take any action or omit fail to take any action that is intended which action or inaction would reasonably cause Parent to be expected to treated as a domestic corporation for U.S. federal income tax purposes (including as a result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfiedMerger); (ch) take convene any action that would result in a failure to maintain the trading meeting of the holders of Parent Stock on Shares for the NYSEpurpose of revoking or varying the authority of the directors of Parent to allot Parent Shares; (i) make any material change in financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, applicable Law or SEC policy; or (dj) agree, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters (a) Parent agrees that during the Interim Period, except as set forth in Section 6.02 5.2 of the Parent Disclosure Letter or otherwise Letter, as expressly permitted or contemplated by this Agreement (including with respect to the Financing or Partnership Combination), as may be required by Law or as required consented to in writing by applicable Law the Company (which consent shall not be unreasonably withheld, delayed or the regulations or requirements of any stock exchange or regulatory organization applicable to Parentconditioned), from the date of this Agreement to the Effective Time, Parent shall, and shall cause each of its the Parent Subsidiaries to, (i) conduct its business in all material respects in the ordinary course of business consistent with past practice. In addition, and without (ii) use their respective reasonable best efforts to maintain in all material respects their assets and properties in their current condition (ordinary wear and tear excepted), preserve their business organizations intact in all material respects, and maintain existing relations and goodwill with Governmental Entities, alliances, customers, lenders, tenants, employees and business associates in all material respects and maintain the status of Parent as a REIT and each Parent Subsidiary as a Qualified REIT Subsidiary or a Taxable REIT Subsidiary, as applicable. (b) Without limiting the generality of the foregoingforegoing clause (a), and except for matters as set forth in Section 6.02 5.2 of the Parent Disclosure Letter or otherwise expressly Letter, as permitted by this Agreement, from as required by Law or as consented to in writing by the date of this Agreement to Company (which consent shall not be unreasonably withheld, delayed or conditioned), during the Effective TimeInterim Period, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld directly or delayedindirectly: (a) (i) amend or propose to amend Parent’s certificate of incorporation or its charter, bylaws or similar governing documents, equivalent organizational documents in a manner adverse to the Company; (ii) adjust, split, combine, subdivide or reclassify any shares of capital stock or other Parent Equity Interests; (iii) declare, set aside or pay any dividend on or distribution payable make any other distributions (whether in cash cash, stock, property or otherwise) with respect to shares of capital stock of Parent or other Parent Equity Interests, except for the declaration and payment by Parent of dividends for the period up to the Closing Date (including the portion of any month in which the Closing occurs) in an aggregate amount not to exceed in respect of Parent Common Stock, (x) 100% of Parent’s Cash Available for Distribution minus (y) the amount of any redemption, purchase or other acquisition of any capital stock of Parent or other Parent Equity Interests effected during the Interim Period (the dividend described in this clause (b)(iii), the “Parent Permitted Dividend”); provided, however, that, notwithstanding anything herein to the contrary, Parent and any Parent Subsidiary shall be permitted to make (or increase) dividends or distributions, including under Sections 858 or 860 of the Code, reasonably necessary for Parent to maintain its status as a REIT under the Code and/or avoid or reduce the imposition of any entity-level income or excise Tax under the Code or applicable state Law; (iv) (A) grant any Person any right or option to acquire any Parent Equity Interests, (B) issue, deliver or sell any additional capital stock or other Parent Equity Interests, or (C) enter into any Contract with respect to the sale, voting or registration of any capital stock or other Parent Equity Interests; provided, however, that Parent may grant awards under the Parent Equity Plan and issue shares of Parent Common Stock (x) upon the vesting or exercise of any Parent Equity Awards outstanding as of the date hereof or Parent Equity Awards permitted to be granted after the date hereof under this Agreement, and (y) pursuant to the Parent Equity Plan to the extent required under the terms of the Parent Equity Plan as in effect as of the date hereof or in accordance with the past practices of Parent; provided, further, the Parent Subsidiaries may issue equity solely to form special purpose entities that will be wholly owned directly or indirectly by the Parent as may be reasonably required for the completion of a Parent Permitted Acquisition; (v) acquire or agree to acquire (including by merger, consolidation or acquisition of stock, equity interests or assets) any real property, personal property (other than personal property at a total cost of less than $1,000,000 in the aggregate), corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof; provided, however, that any wholly owned Parent Subsidiary shall be permitted to acquire real property (via acquisition of the fee interest or the equity interest in the entity which owns the fee interest) in the ordinary course of business consistent with past practice with an aggregate value of up to $100,000,000 (each such acquisition, together with any other acquisitions identified on Section 5.2 of the Parent Disclosure Letter, a “Parent Permitted Acquisition”); (vi) sell, pledge, assign, transfer, dispose of or encumber, or effect a deed in lieu of foreclosure with respect to, any Parent Property or other Parent assets, except (A) pledges and encumbrances on property and assets in the ordinary course of business consistent with past practices and that would not be material to any Parent Property, and (B) with respect to any property or assets with a net book value of less than $50,000,000 in the aggregate; (vii) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any Indebtedness or other debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Parent Subsidiary), except (A) Indebtedness under Parent’s existing revolving credit facility in an amount not to exceed $100,000,000, or (B) Indebtedness to or among Parent and the Parent Subsidiaries; (viii) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, affiliates, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of another entity, other than (A) stock dividends by Parent or distributions for which an appropriate adjustment is effected pursuant a wholly owned Parent Subsidiary to Section 1.01(g) Parent or 3.01(e)a wholly owned Parent Subsidiary, (B) quarterly cash dividends paid loans or advances required to stockholders be made under any of the existing Parent Leases or ground leases affecting the Parent Properties, (C) loans or advances to non-affiliate tenants or borrowers in amounts the ordinary course of business consistent with past practice and in connection with capital expenditures for the improvement, maintenance or repair of Parent Property at a capitalization rate to Parent of at least eight percent (8%) or (D) loans or advances to non-affiliate borrowers in the ordinary course of business that constitute Parent Mortgage Agreements with a principal amount of up to $100,000,000 (any such loan also constituting a Parent Permitted Acquisition); (ix) enter into, renew, materially modify or amend, terminate, or waive, release, compromise or assign any rights or claims under, any Company Material Contract (or any contract that, if existing as of the date hereof, would be a Company Material Contract), other than (A) any termination or renewal in accordance with the terms of such existing Company Material Contract that occur automatically without any action by Parent or any Parent Subsidiary, (B) the entry into any modification or amendment of, or waiver or consent under, any mortgage or related agreement to which the Company or any Company Subsidiary is a party as required or necessitated by this Agreement or the Transactions, provided, that any such modification, amendment, waiver or consent does not increase the principal amount thereunder or otherwise adversely affect the Company, any Company Subsidiary or Parent in any material respect or (C) as necessary to comply with the payment terms of dividends this Agreement; (x) enter into, renew, modify, amend or distributions terminate, or waive, release, compromise or assign any rights or claims under, any Material Parent Lease (or any lease for real property that, if existing as of the date hereof, would be a Parent Lease), except (A) in connection with entering into any new lease (or assuming a lease) in the ordinary course of business consistent with past practice in connection with entering into a Parent Permitted Acquisition or (B) renewing, modifying or amending any Parent Lease in existence on the date hereof (1) in the ordinary course of business consistent with past practices or (2) where the change (whether an increase or decrease) in the aggregate annual rent payments under any such new lease, when aggregated together with the changes under any other lease with entities affiliated with the tenant, are not greater than $1,000,000, excluding, in the calculation of such change in rent, any rent increases arising out of landlord funded capital improvements to a Parent Property that result in an increase in rent at a capitalization rate of at least eight percent (8%); (xi) waive, release, assign, commence, settle or compromise any pending or threatened Legal Proceeding (A) of or against Parent or any of its Subsidiaries or (B) involving any present, former or purported holder or group of holders of the Parent Common Stock, that in the case of (A) or (B), (1) requires payment by a Subsidiary Parent of Parent)an amount in excess of $1,000,000 in the aggregate, (2) entails the incurrence of any obligation or liability of Parent in excess of such amount, including costs or revenue reductions or obligations that would impose any material restrictions on the business or operations of Parent or its Subsidiaries, or (iii3) redeem, purchase, acquire imposes any material non-monetary relief or offer an admission of material liability or wrong doing; (xii) fail to purchase or acquire any shares of its capital stock maintain all financial books and records in all material respects in accordance with GAAP (or any optionsinterpretation thereof concurred with by Parent’s independent auditors) or make any material change to its methods of accounting in effect at December 31, warrants 2013, except as required by a change in GAAP (or rights any interpretation thereof concurred with by Parent’s independent auditors) or in applicable Law, or make any change with respect to acquire accounting policies, unless required by GAAP or the SEC or disclosed in any Parent SEC Document filed prior to the date hereof; (xiii) enter into any new line of business; (xiv) form any new funds, joint ventures or non-traded real estate investment trusts or other pooled investment vehicles; (xv) except as otherwise required pursuant to any written agreement or Benefit Plan as in existence on the date hereof or as otherwise required hereunder, (A) hire or terminate any executive officer or director of Parent or any Parent Subsidiary or promote or appoint any Person to a position of executive officer or director of Parent or any Parent Subsidiary, (B) increase, or accelerate the vesting or payment of, compensation or other benefits payable or provided to Parent’s directors or executive officers, or (C) enter into, amend or adopt any Benefit Plan; provided however, that the foregoing clauses (A)-(C) shall not restrict Parent or any of its capital stock Subsidiaries from (1) awarding annual performance-related merit increases in base salaries made in the ordinary course of business to executive officers of Parent by an amount that in the aggregate does not exceed 5% of such officers’ current aggregate annual base salaries, (2) awarding annual performance-related merit increases in base salaries or any security convertible into or exchangeable for its capital stockbase wages made in the ordinary course of business to all employees other than executive officers of Parent by an amount that in the aggregate does not exceed 5% of such employees’ current aggregate annual base salaries and base wages, (3) increasing annual bonus opportunities made in the ordinary course of business consistent with past practice, or (iv4) merge entering into or consolidate with any Person making available to newly hired employees (not including executive officers) or acquire any material business to employees (not including executive officers) in the context of any Person (other than a mergerpromotions based on job performance or workplace requirements, consolidation or acquisition among wholly-owned Subsidiaries including replacement of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries)an open position, in each case in the ordinary course of business, plans, agreements, benefits and compensation arrangements that have a value that is consistent with respect the past practice of making compensation and benefits available to this clause newly hired or promoted employees (iv), if such action would be reasonably likely to delay the consummation of the Offernot including executive officers) in similar positions; (bxvi) take any action or omit fail to take any action, which action that is intended or failure would reasonably be expected to result in cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary to cease to be treated as any of (x) a partnership or disregarded entity for United States federal income tax purposes or (y) a REIT, a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the conditions to applicable provisions of Section 856 of the Offer Code, as the case may be; (xvii) except as set forth in Annex A Section 5.2 of the Parent Disclosure Letter, (A) make, change or rescind any material election relating to Taxes, (B) change a material method of Tax accounting, (C) amend any material Tax Return, (D) settle or compromise any material federal, state, local or foreign Tax liability, audit, claim or assessment, (E) enter into any material closing agreement related to Taxes, (F) knowingly surrender any right to claim any material Tax refund, or (G) give or request any waiver of a statute of limitation with respect to any material Tax Return, except in each case as reasonably necessary to (1) comply with Law or (2) (x) preserve Parent’s qualification as a REIT under the conditions Code or (y) to qualify or preserve the Merger in Article VII not being satisfiedstatus of any Parent Subsidiary as a disregarded entity or partnership for United States federal income tax purposes or as a REIT, Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be; (cxviii) adopt a plan of merger, complete or partial liquidation or resolutions providing for or authorizing such merger, liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization, except in connection with a Company Permitted Acquisition or the Parent Partnership Restructuring; (xix) make or commit to make any capital expenditures that are not in respect of Parent Properties that are in excess of $1,000,000 individually or $4,000,000 in the aggregate; (xx) take any action under the Parent Governing Documents or otherwise (including by resolution) that would result give dissenters’, appraisal or similar rights to the holders of Parent Common Stock with respect to the Merger or the other Transactions; (xxi) authorize, or enter into any contract, agreement or binding commitment or arrangement to do any of the foregoing. Notwithstanding anything to the contrary set forth in a failure this Agreement, nothing in this Agreement shall prohibit Parent from taking any action, at any time or from time to maintain time, that in the trading reasonable judgment of the Parent Stock Board of Directors, upon advice of counsel to Parent, is reasonably necessary for Parent to maintain its qualification as a REIT under the Code for any period or portion thereof ending on or prior to the NYSE; or (d) agreeMerger Effective Time, authorize or otherwise to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization including making dividend or other transaction, and regardless distribution payments to stockholders of the method Parent in accordance with this Agreement or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) otherwise. If Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in proposes any such transaction and (iii) action, it shall notify the negotiation or consummation Company as soon as reasonably practicable prior to the taking of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Mergeraction.

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that between the date hereof and the earlier of the date of the Effective Time or the date, if any, on which this Agreement is terminated in accordance with Article VIII, except as set forth in Section 6.02 5.2 of the Parent Disclosure Letter or otherwise Letter, as expressly permitted or contemplated required by this Agreement (or Agreement, as required by applicable Law or otherwise with the regulations prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or requirements of any stock exchange or regulatory organization applicable to Parentdelayed), from the date of this Agreement to the Effective Time, Parent shall(a) shall use commercially reasonable efforts to, and shall to cause each of its Subsidiaries Parent Subsidiary to, conduct its business in the ordinary course of business consistent with past practice. In additionpractice and use commercially reasonable efforts to (i) preserve intact its and their present business organizations, goodwill and without limiting ongoing businesses, (ii) keep available the generality services of the foregoingits and their present officers and key employees (other than where termination of such services is for cause) and (iii) preserve its and their present relationships with customers, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted by this Agreementsuppliers, from the date of this Agreement to the Effective Timevendors, Parent licensors, licensees, Governmental Entities, employees and other Persons with whom it and they have material business relations and (b) shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld directly or delayedindirectly: (a) (i) amend the Parent Governing Documents (other than in immaterial respects) or propose adopt any material change in the certificate of incorporation, bylaws or equivalent organizational documents of any Parent Subsidiary that would adversely affect the consummation of the Transaction; (ii) authorize, declare, set aside, establish a record date, make or pay any dividends on or make any distribution with respect to amend its outstanding shares of capital stock or other equity interests (whether in cash, assets, stock or other securities of Parent or any Parent Subsidiary), except (i) Parent’s certificate regular quarterly dividend of incorporation or bylaws or similar governing documents$0.015 per Parent Common Share, (ii) declaredividends and distributions paid or made from wholly-owned Parent Subsidiaries to Parent or between wholly-owned Parent Subsidiaries and (iii) for transactions that would require an adjustment to the Merger Consideration pursuant to Section 3.1(c), set aside respectively, and for which the proper adjustment is made; (iii) split, combine, subdivide, reduce or pay reclassify any dividend of its capital stock, except for (i) any such transaction involving only wholly-owned Parent Subsidiaries, and (ii) any transactions that would require an adjustment to the Merger Consideration pursuant to Section 2.1(e), respectively, and for which the proper adjustment is made; (iv) issue, deliver, grant, sell, pledge, transfer, dispose of or distribution payable encumber, or authorize the issuance, delivery, grant, sale, pledge, transfer, disposition or encumbrance of, any shares in cash the capital stock, voting securities or otherwise (other than equity interest in the Parent or any Parent Subsidiary or any securities convertible into or exchangeable or exercisable for any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares, voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than: (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e)the issuance of Parent Common Shares under any existing Parent Equity Plan, (B) quarterly cash dividends paid to stockholders transactions solely between Parent and a wholly-owned Parent Subsidiary or solely between wholly-owned Parent Subsidiaries and (C) issuances of Parent Common Shares through any public or private registered offering or other transaction of up to 10% of the shares of Parent Common Shares issued and outstanding as of the date of this Agreement, in amounts the aggregate; (v) adopt any material plan of merger, consolidation, reorganization, liquidation or dissolution of Parent or any of the material Parent Subsidiaries, adopt resolutions providing for a material complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, file a petition in bankruptcy under any provisions of federal or state bankruptcy applicable Law on behalf of Parent or any material Parent Subsidiaries or consent to the filing of any bankruptcy petition against Parent or any material Parent Subsidiaries under applicable Law; (vi) other than in the ordinary course of business consistent with past practice and (A) enter into any Contract that would, if entered into prior to the date hereof, be a Parent Material Contract, (B) materially modify, materially amend, extend, accelerate, terminate, cancel, exercise or fail to exercise an expiring renewal option or terminate any Parent Material Contract or (C) the payment of dividends waive, release or distributions to Parent assign any material rights or claims thereunder; (vii) make any change in financial accounting policies, practices, principles or procedures or any of its Subsidiaries methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP or applicable Law; (viii) make, change or rescind any material Tax election, adopt or change any Tax accounting period or material method of Tax accounting, file any income or other material Tax Return (other than in a Subsidiary of Parentmanner that is not inconsistent with past practice), settle or (iii) redeem, purchase, acquire or offer to purchase or acquire compromise any shares of its capital stock material liability for Taxes or any optionsTax audit, warrants claim or rights other Proceeding relating to acquire a material amount of Taxes, enter into any “closing agreement” within the meaning of its capital stock Section 7121 of the Code (or any security convertible into similar provision of state, local or exchangeable for its capital stocknon-U.S. Law), surrender any right to claim a material refund of Taxes, or agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes without timely notifying the Company in writing; (ivix) merge enter into any Contract or consolidate transaction with any Person or acquire any material business (including the making of any payment to) a Related Person (other than a merger, consolidation the Company or acquisition among wholly-owned Subsidiaries one of the Company Subsidiaries) or an Affiliate of a merger consolidation or acquisition involving solely Related Person (other than the Company and its wholly-owned or one of the Company Subsidiaries), in each case with respect to this clause (iv), if such action of a type that would be reasonably likely required to delay be disclosed under Item 404 of Regulation S-K under the consummation of the OfferSecurities Act; (bx) take fail to timely file any action report required to be filed by Parent or omit to take any action that is intended or would reasonably be expected to result in any of Parent Subsidiary with the conditions to the Offer set forth in Annex A SEC or the conditions to the Merger in Article VII not being satisfied; (c) take Canadian Securities Administrators or any action that would result in a failure to maintain the trading of the Parent Stock on the NYSEother Governmental Entity; or (dxi) agreeagree or authorize, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding anything to the foregoingcontrary in this Section 5.2, the Parties acknowledge and agree that nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent shall be entitled to or Merger Sub’s operations (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless including for purposes of the method or source of financing for such acquisition), so long as (iHSR Act) prior to the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from agrees that between the date of this Agreement and the First Merger Effective Time or the date, if any, on which this Agreement is terminated in accordance with Article VIII, except (a) as set forth in Section 5.2 of the Parent Disclosure Letter, (b) as expressly required or permitted pursuant to this Agreement, (c) to the Effective Timeextent otherwise required by Law or (d) as consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent shall, (x) shall and shall cause each of its the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course of business and in a manner consistent with past practice. In additionpractice and (y) shall use its commercially reasonable efforts to (A) preserve intact in all material respects its current business organization, goodwill, ongoing businesses and significant relationships with third parties, and without (B) maintain the qualification of Parent as a REIT. Without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from agrees that between the date of this Agreement and the First Merger Effective Time or the date, if any, on which this Agreement is terminated in accordance with Article VIII, except (a) as set forth in Section 5.2 of the Parent Disclosure Letter, (b) as expressly required or permitted pursuant to this Agreement, (c) to the Effective Timeextent otherwise required by Law or (d) as consented to in writing by the Company (which consent shall not be unreasonably withheld, conditioned or delayed) Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend the charter or bylaws of Parent in a manner adverse to the Company; (b) issue or grant any Parent Equity Interests at a price below the per share value of the Parent’s certificate net assets as of incorporation the date of such issuance or bylaws grant; (c) split, combine, subdivide or similar governing documentsreclassify any shares of stock of the Parent or any Parent Subsidiary or any other Parent Equity Interests or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of stock of Parent; (iid) declare, set aside or pay any dividend on or distribution payable make any other distributions (whether in cash cash, stock, property or otherwise (otherwise) with respect to shares of stock of Parent or any Parent Subsidiary or other than equity securities or ownership interests in Parent or any Parent Subsidiary, except for (A) stock the declaration and payment by Parent of regular quarterly dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e)payable in respect of the Parent Preferred Stock in accordance with past practice, (B) quarterly cash the declaration and payment of dividends paid or other distributions to stockholders of Parent in amounts consistent with past practice and by any directly or indirectly wholly owned Parent Subsidiary, (C) the declaration and payment by Parent of regular quarterly dividends payable in respect of the Parent Common Stock in accordance with past practice; (D) the declaration and payment by Parent of a dividend in respect of the Parent Common Stock at or prior to Closing in an amount equal to a pro rata portion of its regularly quarterly dividend, based on the number of days elapsed in the quarter in which the Closing Date occurs to but not including the third (3rd) Business Day after the date on which the Company Stockholder Approval is obtained; and (E) any dividend which the Parent Board determines is or may be necessary to be authorized and declared to enable Parent to maintain its qualification as a REIT and avoid incurring U.S. federal, state or local income or excise taxes under the Code or applicable state or local law, including payment of dividends under Code Sections 858 or distributions 860, with respect to 2016; (e) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any Parent or Equity Interests, except (i) in accordance with Parent’s share repurchase plan as in effect as of the date hereof, (ii) from holders of Parent Equity Awards in amounts necessary for such holders to pay any applicable Taxes payable by such holders upon the lapse of its Subsidiaries by a Subsidiary of Parent), restrictions on the Parent Equity Awards or (iii) redeemas required by the Parent Governing Documents; (f) make, purchasechange or revoke, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business Tax election, enter into any material closing agreement with a Tax authority, file any amended Tax Return with respect to any material Tax or change any material method of any Person (other than a mergeraccounting for Tax purposes or annual Tax accounting period, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), except in each case with respect (A) if required by Law, (B) in the ordinary course of business or (C) if necessary (x) to this clause preserve Parent’s qualification as a REIT under the Code or (iv), if such action would be reasonably likely y) to delay qualify or preserve the consummation status of any Parent Subsidiary as a disregarded entity or partnership for U.S. federal income tax purposes or as a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the OfferCode, as the case may be; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (cg) take any action that would could reasonably be expected to, or fail to take any action, the failure of which could reasonably be expected to, cause Parent to fail to qualify as a REIT; (h) change an annual accounting period or change in any material respect any of the accounting methods used by it materially affecting its assets, liabilities or business, except for such changes required by GAAP or applicable Laws; (i) take any action that could, or fail to take any action, the failure of which could reasonably be expected to, result in Parent or any Parent Subsidiary being required to be registered as an investment company under the Investment Company Act; (j) adopt a failure to maintain plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of Parent (other than the trading of the Parent Stock on the NYSEMergers); or (dk) agreeenter into any Contract with respect to, authorize or otherwise agree to take or make any commitment to take, or cause Parent Board to adopt any resolutions approving, any of the foregoing actionsactions prohibited by this Section 5.2. Notwithstanding anything to the foregoingcontrary set forth in this Agreement, nothing in this Agreement shall prohibit Parent shall be entitled from taking any action, at any time or from time to (a) repurchasetime, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiationsthat in the reasonable judgment of Parent, discussions and Contracts relating toupon advice of counsel to Parent, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing is reasonably necessary for such acquisition), so long as Parent to (i) maintain its qualification as a REIT under the fair market value of Code for any period or portion thereof ending on or prior to the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individuallyFirst Merger Effective Time, (ii) Parent does not issue in excess of 20% of avoid incurring U.S. federal, state or local income or excise Taxes under the then outstanding Parent Stock as consideration in any such transaction and Code or applicable state or local Law or (iii) avoid being required to register as an investment company under the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the MergerInvestment Company Act.

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from agrees that between the date of this Agreement and the date of the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except (a) as set forth in Section 6.2 of the Effective TimeParent Disclosure Letter, (b) as specifically permitted or required by this Agreement, (c) as required by Law or (d) as consented to in writing by the Company (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall, (i) shall and shall cause each of its Subsidiaries Parent Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice. In addition, including by using commercially reasonable efforts to preserve intact its and without limiting the generality of the foregoingtheir present business organizations and to preserve its and their present relationships with customers, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise suppliers, vendors, Governmental Entities and other Persons with whom it and they have material business relations; provided, however, that no action that is expressly permitted by any of clauses (a) through (e) of Section 6.2(ii) shall be deemed a breach of this Agreementclause (i) unless such action constitutes a breach of any such clauses (a) through (e), from and (ii) agrees that between the date of this Agreement and the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to the Effective TimeSection 9.1, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld directly or delayedindirectly: (a) Authorize, declare, set aside, make or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock or other equity interests (whether in cash, assets, stock or other securities of Parent or Parent Subsidiaries), except (i) amend or propose to amend Parent’s certificate regular quarterly dividends determined in good faith by Parent’s board of incorporation or bylaws or similar governing documentsdirectors, (ii) declare, set aside dividends and distributions paid or pay any dividend made on a pro rata basis in the ordinary course of business by Parent Subsidiaries or distribution payable in cash by a wholly owned Parent Subsidiary to Parent or otherwise another wholly owned Parent Subsidiary and (other than (Aiii) stock dividends or distributions for which transactions that would require an appropriate adjustment is effected to the Offer Consideration and the Merger Consideration pursuant to Section 1.01(g1.1(d) or 3.01(eand Section 3.1(e), respectively, and for which the proper adjustment is made; (Bb) quarterly cash dividends paid split, combine, reduce or reclassify any of its issued or unissued shares, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, its shares, except for any such transaction by a wholly owned Parent Subsidiary which remains a wholly owned Parent Subsidiary after consummation of such transaction, except for transactions that would require an adjustment to stockholders the Offer Consideration and the Merger Consideration pursuant to Section 1.1(d) and Section 3.1(e), respectively, and for which the proper adjustment is made; (c) authorize or announce an intention to authorize, or enter into agreements providing for, any acquisitions of an equity interest in or a substantial portion of the assets of any Person or any business or division thereof, or any mergers, consolidations or business combinations or any acquisitions of equity or assets, mergers, consolidations or business combinations that, in each case, would reasonably be expected to prevent or materially delay or impede the consummation of the Transactions; (d) amend the Parent Governing Documents in a manner that would be material and adverse to the holders of Company Shares relative to the treatment of existing holders of Parent Common Stock; (e) issue, deliver, grant, sell, pledge, dispose of or encumber, or authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any shares in amounts consistent with past practice and (C) its capital stock, voting securities or other equity interest in the payment of dividends or distributions to Parent or any of its Subsidiaries by a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security securities convertible into or exchangeable for its capital any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares, voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries)stock based performance units, in each case other than (i) issuances, deliveries, grants, sales, pledges, dispositions or encumbrances or authorizations of any of the foregoing to the extent that such transactions do not require a stockholder vote of Parent’s stockholders pursuant to the rules of Nasdaq, (ii) issuances of shares of Parent Common Stock in respect of any exercise of Parent stock options or the vesting or settlement of Parent Equity Awards, (iii) transactions between Parent and a wholly owned Parent Subsidiary or between wholly owned Parent Subsidiaries, (iv) issuances or grants of Parent Equity Awards and (v) other issuances of or other transactions with respect to this clause (iv), if such action shares of Parent Common Stock in transactions that would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions require an adjustment to the Offer set forth in Annex A or the conditions to Consideration and the Merger in Article VII not being satisfied; (cConsideration pursuant to Section 1.1(d) take any action that would result in a failure to maintain and Section 3.1(e), respectively, and for which the trading of the Parent Stock on the NYSEproper adjustment is made; or (df) agreeagree or authorize, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters (a) Parent agrees that during the Interim Period, except as set forth in Section 6.02 6.2 of the Parent Disclosure Letter or otherwise Letter, as expressly permitted or contemplated by this Agreement (including with respect to the Manager Contribution or the Merger), as may be required by applicable Law or the regulations as consented to in writing by Company (which consent shall not be unreasonably withheld, delayed or requirements of any stock exchange or regulatory organization applicable to Parentconditioned), from the date of this Agreement to the Effective Time, Parent shall, and shall cause each of its Subsidiaries Parent Subsidiary to, (i) conduct its business in all material respects in the ordinary course of business consistent with past practice. In addition, and without (ii) use their respective reasonable best efforts to maintain in all material respects their assets and properties in their current condition (ordinary wear and tear excepted), preserve their business organizations intact in all material respects, and maintain existing relations and goodwill with Governmental Entities, alliances, customers, lenders, tenants, employees and business associates in all material respects and maintain the status of Parent as a REIT and each Parent Subsidiary as a Qualified REIT Subsidiary or a Taxable REIT Subsidiary, as applicable, and provided, that notwithstanding anything to the contrary in this Section 6.2, Parent or any Parent Subsidiary may effect one (1) securitization on customary terms in an amount not to exceed $625,000,000 (the “Parent New Securitization”). (b) Without limiting the generality of the foregoingclause (a) above, and except for matters as set forth in Section 6.02 6.2 of the Parent Disclosure Letter or otherwise expressly Letter, as permitted by this Agreement, from as required by Law or as consented to in writing by Company (which consent shall not be unreasonably withheld, delayed or conditioned), during the date of this Agreement to the Effective TimeInterim Period, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld directly or delayedindirectly: (a) (i) amend or propose to amend Parent’s certificate of incorporation or its charter, bylaws or similar governing equivalent organizational documents, ; (ii) adjust, split, combine, subdivide or reclassify any shares of capital stock or other Parent Equity Interests; (iii) declare, set aside or pay any dividend on or distribution payable make any other distributions (whether in cash cash, stock, property or otherwise) with respect to shares of capital stock of Parent or other Parent Equity Interests, except for (A) the declaration and payment by Parent of quarterly dividends in accordance with past practice for the period up to the Closing Date (including the portion of any month in which the Closing occurs) in an amount not to exceed $0.20 per Parent Common Share per quarter, (B) the declaration and payment of dividends or other distributions by the Parent Operating Partnership in an amount not to exceed $0.20 per Parent OP Unit per quarter, and (C) dividends or other distributions by any Parent Subsidiary (other than by the Parent Operating Partnership), in accordance with the terms of the organizational documents of such Parent Subsidiary; provided, however, that, notwithstanding anything herein to the contrary, Parent and any Parent Subsidiary shall be permitted to make (or increase) dividends or distributions, including under Sections 858 or 860 of the Code, reasonably necessary for Parent to maintain its status as a REIT under the Code or applicable state Law and/or avoid or reduce the imposition of any entity-level income or excise Tax under the Code or applicable state Law; (iv) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, directly or indirectly, any capital stock or other Parent Equity Interests, except any Parent OP Units in accordance with the terms of the Parent Operating Partnership Agreement; (v) (A) grant any Person any right or option to acquire any Parent Equity Interests, (B) issue, deliver or sell any additional capital stock or other Parent Equity Interests or (C) enter into any Contract with respect to the sale, voting or registration of any capital stock or other Parent Equity Interests; provided, however, that Parent may issue Parent Common Shares upon the vesting or exercise of any Parent Equity Awards outstanding as of the date hereof in accordance with the terms and conditions thereof as in effect on the date hereof; provided, further, Parent Subsidiaries may issue equity solely to form special purpose entities that will be wholly owned directly or indirectly by Parent as may be reasonably required for the completion of a Parent Permitted Acquisition; (vi) acquire or agree to acquire (including by merger, consolidation or acquisition of stock, equity interests or assets) any real property, personal property (other than personal property at a total cost of less than $2,000,000 in the aggregate), non-performing loans, corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof; provided, however, that any wholly owned Parent Subsidiary shall be permitted to acquire real property (via acquisition of the fee interest or the equity interest in the entity which owns the fee interest) in the ordinary course of business consistent with past practice with an aggregate value of up to $30,000,000 per month (each such acquisition, together with any other acquisitions identified on Section 6.2 of the Parent Disclosure Letter, a “Parent Permitted Acquisition”); (vii) sell, pledge, assign, transfer, dispose of or encumber, or effect a deed in lieu of foreclosure with respect to, any Parent Owned Property or other Parent tangible assets of Parent or any Parent Subsidiary, except (A) pledges and encumbrances on property and assets in the ordinary course of business consistent with past practices and that would not be material to any Parent Owned Property, and (B) with respect to any tangible property or assets with a net book value of less than $20,000,000 per month in the aggregate; (viii) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any Indebtedness or other debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Parent Subsidiary), except (A) Indebtedness under Parent’s existing revolving credit facilities for working capital purposes in the ordinary course of business consistent with past practice (including to the extent necessary to pay dividends permitted under this Agreement) in an aggregate amount not to exceed $100,000,000 per quarter, or (B) unsecured, unsubordinated Indebtedness to or among Parent and Parent Subsidiaries in the ordinary course of business consistent with past practice; (ix) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, affiliates, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of another entity, other than (A) stock dividends by Parent or distributions for which an appropriate adjustment is effected pursuant a wholly owned Parent Subsidiary to Section 1.01(g) Parent or 3.01(e)a wholly owned Parent Subsidiary, (B) quarterly cash dividends paid loans or advances required to stockholders be made under any of the existing Parent in amounts consistent with past practice and Leases, Parent Residential Leases or ground leases affecting the Parent Properties, or (C) loans or advances to non-affiliate borrowers in the payment ordinary course of dividends business with a principal amount of up to $1,000,000 (any such loan also constituting a Parent Permitted Acquisition); (x) enter into, renew, materially modify or distributions to amend, terminate, or waive, release, compromise or assign any rights or claims under, any Parent Material Contract (or any contract that, if existing as of the date hereof, would be a Parent Material Contract), other than (A) any termination or renewal in accordance with the terms of such existing Parent Material Contract that occur automatically without any action by Parent or any of its Subsidiaries by a Subsidiary of Parent)Parent Subsidiary, (B) the entry into any modification or amendment of, or (iii) redeemwaiver or consent under, purchaseany mortgage, acquire deed of trust, deed to secure debt, similar agreement, or offer related agreement to purchase or acquire any shares of its capital stock which Parent or any optionsParent Subsidiary is a party as required or necessitated by this Agreement or the Transactions; provided, warrants however, that any such modification, amendment, waiver or rights consent does not increase the principal amount thereunder or otherwise adversely affect Parent, any Parent Subsidiary or Company in any material respect, (C) as necessary to acquire any comply with the terms of its capital stock or any security convertible into or exchangeable for its capital stock, this Agreement or (ivD) merge modifications, amendments, terminations, waivers, releases, compromises or consolidate with any Person assignments of rights or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries)claims, in each case that are not material and are made in the ordinary course of business and consistent with past practices; (xi) waive, release, assign, commence, settle or compromise any pending or threatened Legal Proceeding (A) of or against Parent or Parent Subsidiaries or (B) involving any present, former or purported holder or group of holders of the Parent Common Shares, that in the case of (A) or (B), (1) requires payment by Parent of an amount in excess of $1,000,000 in the aggregate or that would require the issuance of any Parent Common Shares, (2) entails the incurrence of any obligation or liability of Parent in excess of such amount, including costs or revenue reductions or obligations that would impose any material restrictions on the business or operations of Parent or Parent Subsidiaries, (3) imposes any material non-monetary relief or an admission of material liability or wrong doing or that would result in any supplement, modification to or amendment of the terms of (a) the Contribution Agreement or any agreement or document relating to the Transactions of which neither the Company, any Company Investor nor their respective affiliates is party or (b) any Parent Material Contract that would not otherwise be permitted pursuant to sub-clause (x) of this Section 6.2(b); (xii) fail to maintain all financial books and records in all material respects in accordance with GAAP (or any interpretation thereof concurred with by Parent’s independent auditors) or make any material change to its methods of accounting in effect at December 31, 2014, except as required by a change in GAAP (or any interpretation thereof concurred with by Parent’s independent auditors) or in applicable Law, or make any change with respect to this clause (iv)accounting policies, if such action would be reasonably likely unless required by GAAP or the SEC or disclosed in any Parent SEC Document filed prior to delay the consummation of the Offerdate hereof; (bxiii) enter into any new line of business; (xiv) form any new funds, joint ventures or non-traded real estate investment trusts or other pooled investment vehicles; (xv) waive, release, assign any material rights or claims or make any payment, direct or indirect, of any liability of Parent or any Parent Subsidiary before the same comes due in accordance with its terms, other than in the ordinary course of business consistent with past practice; (xvi) except as otherwise required pursuant to any written agreement or Benefit Plan as in existence on the date hereof or as otherwise required hereunder, (A) hire or terminate (other than termination for cause) any employee, officer, executive officer or director of Parent or any Parent Subsidiary or promote or appoint any Person to a position of executive officer or director of Parent or any Parent Subsidiary, (B) increase, or accelerate the vesting or payment of, compensation or other benefits payable or provided to Parent’s directors or executive officers, or (C) enter into, materially amend or adopt any Benefit Plan; provided, however, that clauses (A) through (C) above shall not restrict any payment permitted by Section 4.01(k) of the Contribution Agreement; (xvii) take any action or omit fail to take any action, which action that is intended or failure would reasonably be expected to result in cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary to cease to be treated as any of (x) a partnership or disregarded entity for United States federal income tax purposes or (y) a REIT, a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the conditions to applicable provisions of Section 856 of the Offer set forth in Annex A or Code, as the conditions to the Merger in Article VII not being satisfiedcase may be; (cxviii) (A) make, change or rescind any material election relating to Taxes, (B) change a material method of Tax accounting, (C) amend any material Tax Return, (D) settle or compromise any material federal, state, local or foreign Tax liability, audit, claim or assessment, (E) enter into any material closing agreement related to Taxes, (F) knowingly surrender any right to claim any material Tax refund, or (G) give or request any waiver of a statute of limitation with respect to any material Tax Return, except in each case as reasonably necessary to (1) comply with Law or (2) (x) preserve Parent’s qualification as a REIT under the Code or (y) to qualify or preserve the status of any Parent Subsidiary as a disregarded entity or partnership for United States federal income tax purposes or as a REIT, Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be; (xix) adopt a plan of merger, complete or partial liquidation or resolutions providing for or authorizing such merger, liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization, except in connection with a Parent Permitted Acquisition; (xx) amend or modify the engagement letters entered into with the Parent Financial Advisor or the Persons listed on Section 5.26 of the Parent Disclosure Letter, in a manner adverse to Parent, any Parent Subsidiary or Company, or engage other financial advisers in connection with the Transactions; (xxi) other than as permitted clause (vi) above, make or commit to make any recurring capital expenditures that are in excess of $15,000,000 per quarter in the aggregate; (xxii) take any action under the Parent Governing Documents or otherwise (including by resolution) that would result in a failure give dissenters’, appraisal or similar rights to maintain the trading holders of Parent Common Shares with respect to the Parent Stock on Merger or the NYSEother Transactions; or (dxxiii) agreeauthorize, authorize or otherwise enter into any contract, agreement or binding commitment or arrangement to take do any of the foregoing actionsforegoing. Notwithstanding anything to the foregoingcontrary set forth in this Agreement, nothing in this Agreement shall prohibit Parent shall be entitled from taking any action, at any time or from time to (a) repurchasetime, retire that in the reasonable judgment of the Parent Board of Trustees, upon advice of counsel to Parent, is reasonably necessary for Parent to maintain its qualification as a REIT under the Code for any period or refinance outstanding indebtedness portion thereof ending on or debt securities and (b) enter into negotiationsprior to the Merger Effective Time, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization including making dividend or other transaction, and regardless distribution payments to shareholders of the method Parent in accordance with this Agreement or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) otherwise. If Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in proposes any such transaction and (iii) action, it shall notify Company as soon as reasonably practicable prior to the negotiation or consummation taking of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Mergeraction.

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly Schedule, as specifically permitted or contemplated by any other provision of this Agreement (Agreement, or as required by applicable Law or the regulations or requirements of any stock exchange the Exchange, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or regulatory organization applicable to Parentdelayed), from the date of this Agreement to the Effective Time, Parent shallwill, and shall will cause each of its Subsidiaries Parent Subsidiary to, conduct use its commercially reasonable efforts to preserve substantially intact its business in the ordinary course of business consistent with past practiceorganization and goodwill. In addition, and without Without limiting the generality of the foregoing, and as an extension thereof, except for matters as set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly Schedule, as specifically permitted by any other provision of this Agreement, from the date of this Agreement to the Effective Time, Parent shall not (unless or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)the Exchange, Parent shall not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of the Company, Company (which consent shall not be unreasonably withheld withheld, conditioned or delayed:): (a) (i) Section 5.2.1 amend or propose to amend Parent’s certificate otherwise change its articles of incorporation or bylaws or similar governing equivalent organizational documents, (ii) other than pursuant to any investment or business combination transaction that would not otherwise violate Section 5.2.6; Section 5.2.2 declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash cash, stock, property or otherwise a combination thereof), with respect to any of its capital stock (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of by a wholly-owned Parent in amounts consistent with past practice and (C) the payment of dividends or distributions Subsidiary to Parent or any other wholly-owned Parent Subsidiary); Section 5.2.3 issue or authorize the issuance of its Subsidiaries by a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock of, or other Equity Interests in, Parent or any Parent Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities of Parent or any Parent Subsidiary, other than the issuance of (w) Parent Common Stock upon the exercise of Parent Options outstanding on the date hereof or granted in the ordinary course of business, (x) upon the exercise of warrants to purchase Parent Common Stock which are outstanding on the date hereof, (y) Parent Common Stock pursuant to that certain Securities Purchase Agreement entered into by and among Cypress Pharmaceuticals, Inc., a Mississippi corporation (“Cypress”), the holders of all of the outstanding capital stock of Cypress, Parent, and for the limited purposes set forth therein, Xxxxxxx Xxxxx Xxxxxxxxx, or (z) pursuant to any investment or business combination transaction that would not otherwise violate Section 5.2.6; Section 5.2.4 reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSE; or (d) agree, authorize or otherwise to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization Equity Interests or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.securities;

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that between the date hereof and the earlier of the date of the Effective Time or the date, if any, on which this Agreement is validly terminated pursuant to Section 8.1 except as set forth in Section 6.02 5.2 of the Parent Disclosure Letter or otherwise expressly Letter, as specifically permitted or contemplated required by this Agreement (or Agreement, as required by applicable Law or as consented to in writing by the regulations Company (such consent not to be unreasonably withheld, conditioned or requirements of any stock exchange or regulatory organization applicable to Parentdelayed), from the date of this Agreement to the Effective Time, Parent shallshall not, and shall cause each of its Subsidiaries Parent Subsidiary not to, conduct directly or indirectly: (a) amend, modify, waive, rescind, change or otherwise restate the Parent Governing Documents (whether by merger, consolidation, operation of law or otherwise) in a manner that would materially and adversely affect the Company Stockholders, or adversely affect the Company Stockholders relative to other holders of Parent Class A Common Stock; (b) authorize, declare, set aside, make or pay any dividends on or make any distribution with respect to its business outstanding shares of capital stock or other equity interests (whether in cash, assets, stock or other securities of Parent or any Parent Subsidiary), except (i) dividends and distributions paid or made in the ordinary course of business consistent with past practice. In additionpractice by the Parent Subsidiaries to Parent or any other wholly owned Parent Subsidiary and (ii) for transactions that would require an adjustment to the Merger Consideration pursuant to Section 2.1(d) and for which the proper adjustment is made; (c) split, and without limiting the generality combine, subdivide, reduce or reclassify any of the foregoingits capital stock, except for matters (i) any such transaction involving only wholly owned Parent Subsidiaries, and (ii) any transactions that would require an adjustment to the Merger Consideration pursuant to Section 2.1(d) and for which the proper adjustment is made; (d) adopt a plan of complete or partial liquidation or dissolution with respect to Parent, Merger Sub or any direct or indirect parent entity of Merger Sub; (e) acquire (including by merger, consolidation or acquisition of stock or assets or any other means) or publicly announce an intention to so acquire, or enter into any agreements providing for any acquisitions of, any equity interests in or a material portion of the assets of any Person (or any business or division thereof) set forth in on Section 6.02 5.2(e) of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) that (i) amend would require (A) the filing by Parent or propose any Parent Subsidiaries of a Notification and Report Form pursuant to amend Parent’s certificate the HSR Act with respect to such acquisition or (B) any pre-closing approvals, consents, waivers or clearances under any Antitrust Laws of incorporation the jurisdictions set forth on Section 7.1(d)(ii) or bylaws or similar governing documents, Section 7.1(d)(iii) of the Parent Disclosure Letter with respect to such acquisition and (ii) declare, set aside or pay any dividend or distribution payable in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent or any of its Subsidiaries by a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected under applicable Antitrust Law in the United States or in the jurisdictions specified in Section 7.1(d)(ii) or Section 7.1(d)(iii) of the Parent Disclosure Letter to result in (and actually does) cause material additional substantive review of the Merger that would prevent (A) any waiting period (or extensions thereof) applicable to the Transactions under the HSR Act from expiring or terminating prior to the Outside Date or (B) Parent or Purchaser from obtaining, prior to the Outside Date, any of the conditions required pre-closing approvals, consents, waivers or clearances applicable to the Offer Transactions under any Antitrust Laws of the jurisdictions set forth in Annex A on Section 7.1(d)(ii) or the conditions to the Merger in Article VII not being satisfied; (cSection 7.1(d)(iii) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSEDisclosure Letter; provided that in no event shall a breach of this Section 5.2(e) constitute a “willful breach” for any purpose under this Agreement; or (df) agreeagree or authorize, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from agrees that between the date of this Agreement and the date of the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except (a) as set forth in Section 6.2 of the Effective TimeParent Disclosure Letter, (b) as specifically required by this Agreement, (c) as required by Law or (d) as consented to in writing (including via email from the person named in Section 10.5 to receive notices on behalf of the Company hereunder) by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent shall, (i) shall and shall cause each of its Subsidiaries Parent Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice. In addition, including by using commercially reasonable efforts to preserve intact its and without limiting the generality of the foregoingtheir present business organizations and to preserve its and their present relationships with customers, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise suppliers, Governmental Entities and other Persons with whom it and they have material business relations; provided, however, that no action that is expressly permitted by any of clauses (a) through (g) of Section 6.2(ii) shall be deemed a breach of this Agreementclause (i), from and (ii) agrees that between the date of this Agreement and the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to the Effective TimeSection 9.1, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) authorize or pay any dividends on or make any distribution with respect to its outstanding shares (whether in cash, assets, stock or other securities of Parent or Parent Subsidiaries), except (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, regular quarterly dividends in an amount not to exceed $0.51 per quarter and (ii) declare, set aside dividends and distributions paid or pay any dividend or distribution payable made on a pro rata basis by Parent Subsidiaries in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders the ordinary course of Parent in amounts business consistent with past practice and (C) the payment of dividends or distributions by a wholly owned Parent Subsidiary to Parent or any of its Subsidiaries by a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-another wholly owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the OfferParent Subsidiary; (b) take split, combine, reduce or reclassify any action of its issued or omit unissued shares, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, its shares, except for any such transaction by a wholly owned Parent Subsidiary which remains a wholly owned Parent Subsidiary after consummation of such transaction; (c) authorize or announce an intention to take authorize, or enter into agreements providing for, any action that is intended acquisitions of an equity interest in or a substantial portion of the assets of any Person or any business or division thereof, or any mergers, consolidations or business combinations or any acquisitions of equity or assets, mergers, consolidations or business combinations that, in any case, would reasonably be expected to result in any prevent or materially delay or impede the consummation of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading Transactions; Table of the Parent Stock on the NYSE; or Contents (d) agree, authorize or otherwise amend the Parent Governing Documents in a manner that would be adverse to take any the holders of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.Company Shares;

Conduct of Business by Parent Pending the Closing. Except for matters set forth From the Execution Date until the Effective Time, unless the Company shall otherwise consent in Section 6.02 of the Parent Disclosure Letter writing, which consent shall not be unreasonably withheld, or except as otherwise expressly permitted by or contemplated by provided for in this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from the date of this Agreement to the Effective TimeAgreement, Parent shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course of business consistent with past practicepractice and in compliance in all material respects with all applicable Laws and use reasonable best efforts to preserve intact their respective business organizations and goodwill. In addition, addition to and without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or as otherwise expressly permitted by or provided for in this Agreement, from the date of this Agreement to hereof until the Effective Time, without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned, or delayed, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries to, do any of the following without outside the prior written consent ordinary course of the Company, which consent shall not be unreasonably withheld or delayedbusiness consistent with past practices: (a) adopt or propose any material change in its certificate of incorporation or bylaws, except for such amendments (i) required by any applicable Law or the rules and regulations of the SEC or NASDAQ, (ii) as contemplated by the Amended Certificate of Incorporation, or (iii) that would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect; (b) sell, lease, pledge, or otherwise dispose of or encumber any properties or assets of Parent or its Subsidiaries, except for (i) the sale of inventory in the ordinary course of business and (ii) other transactions which would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect; (c) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing; (i) amend or propose to amend Parent’s the certificate of incorporation or bylaws or similar governing documentsdocuments of Parent or any of its Subsidiaries, (ii) split, combine or reclassify their outstanding capital stock or issue or authorize the issuance of any other security in respect or, in lieu of, or in substitution for, shares of its capital stock, (iii) declare, set aside aside, make or pay any dividend or distribution other distribution, payable in cash cash, stock, property or otherwise (otherwise, other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends any dividend on shares of Parent Series B Preferred Stock (iv) create any Subsidiary or distributions to alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of Parent or any of its Subsidiaries Subsidiaries, or (v) enter into any agreement with respect to the voting of its capital stock or other securities held by a Subsidiary Parent or any of Parent)its Subsidiaries; (d) issue, sell, pledge, dispose of, grant, encumber, or agree to issue, sell, pledge, dispose of, grant or encumber any shares of any class of capital stock of Parent or any of its Subsidiaries, or any options, warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for such capital stock, except that Parent may issue Parent Stock upon exercise or conversion, as applicable, of Parent Stock Options, Parent Warrants or Parent Series B Preferred Stock outstanding on the date hereof in accordance with their present terms; (i) issue any debt securities, incur, guarantee or otherwise become contingently liable with respect to any indebtedness for borrowed money or enter into any arrangement having the economic effect of any of the foregoing, (ii) make any loans, advances or capital contributions to, or investments in, any Person, or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock, or the capital stock of its Subsidiaries, or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business the capital stock of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer;; and (bf) take sell, pledge, assign, dispose of, transfer, lease, securitize, or encumber any action businesses, properties or omit to take any action that is intended assets of Parent or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSE; or (d) agree, authorize or otherwise to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Mergerits Subsidiaries.

Conduct of Business by Parent Pending the Closing. Except for matters (a) Prior to Closing, except (1) as set forth in Section 6.02 6.2(a) of the Parent Disclosure Letter or Schedule, (2) as otherwise expressly permitted provided or contemplated required by this Agreement and the Transaction Documents or as may be necessary or appropriate to implement the transactions contemplated hereby and thereby, (or 3) as required by applicable Law (including any obligations as debtor in possession under the Bankruptcy Code) or as otherwise ordered by the regulations Bankruptcy Court, (4) as required under the Plan or requirements (5) with the prior written consent of any stock exchange or regulatory organization applicable to Parent), from the date of this Agreement to the Effective TimeSpyglass, Parent shall, and shall cause each of its Subsidiaries to, conduct its business : (i) Conduct the respective businesses of the MGM Subsidiaries in the ordinary course of business consistent with past practice. In addition, and without taking into account the financial conditions to which the MGM Companies are subject; and (ii) Without limiting the generality of the foregoing, use reasonable efforts to: (A) except for matters as set forth in Section 6.02 6.2(a)(ii)(A) of the Parent Disclosure Letter or Schedule, maintain the present business operations, organization and goodwill of the MGM Companies, (B) maintain the present relationships with customers and suppliers of the MGM Companies and other Persons with which any of the MGM Companies have significant business relations, (C) maintain good relations with the employees of the MGM Companies, (D) maintain reserves, accruals and payables in the ordinary course of business and consistent with past practices, (E) maintain and comply in all material respects with the terms of its Parent Contracts and (F) comply with all applicable Laws, except (in each case) for matters of non-compliance as would not reasonably be expected to have a Parent Material Adverse Effect. (b) Prior to the Closing, except (1) as set forth in Section 6.2(b) of Parent Disclosure Schedule, (2) as otherwise expressly permitted provided or required by this AgreementAgreement and the Transaction Documents or as may be necessary or appropriate to implement the transactions contemplated hereby and thereby, from the date of this Agreement to the Effective Time, Parent shall not (unless 3) as required by applicable Law (including any obligations as debtor in possession under the Bankruptcy Code) or as otherwise ordered by the regulations Bankruptcy Court, (4) as required under the Plan or requirements (5) with the prior written consent of any stock exchange or regulatory organization applicable to Parent)Spyglass, Parent shall not, and shall not permit any of its Subsidiaries to: (i) Repurchase, do redeem or otherwise acquire, or grant any rights or enter into any Contracts or commitments to repurchase, redeem or acquire, any outstanding shares of capital stock or other securities of, or other ownership interests in, Parent or, other than in the ordinary course of business, the MGM Companies; or declare, set aside, make or pay any dividend or other distribution with respect to the capital stock or other securities or ownership interests of Parent, or, other than in the ordinary course of business, the MGM Companies; (ii) Issue or sell any shares of capital stock or other securities of any of the following without the prior written consent MGM Companies or grant options, warrants, calls or other rights to purchase shares of capital stock or other securities of any of the Company, which consent shall not be unreasonably withheld or delayed:MGM Companies; (aiii) Effect any recapitalization, reclassification or like change in the capitalization of any of the MGM Companies; (iiv) amend or propose to amend Parent’s Amend the certificate of incorporation or bylaws or similar governing documentscomparable organizational documents of any of the MGM Companies; (v) Enter into, create, incur or assume any obligations, or enter into any agreement in any case which are other than in the ordinary course of business; (iivi) declareExcept as set forth in Section 6.2(b)(vi) of the Parent Disclosure Schedule and except with respect to one or more movies based upon “The Hobbit” franchise, set aside “greenlight,” commit to or pay commence the production or financing of, or acquisition of any dividend ownership interest or distribution payable Exploitation rights in cash or to, any theatrical motion picture(s) not already “greenlit” (or otherwise committed to or commenced) by any of the MGM Companies prior to the date of the Original Investment Agreement; (other than (Avii) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders Except in the ordinary course of Parent in amounts business consistent with past practice and or in any transaction by Parent with its Subsidiaries, (CA) the payment sell, transfer, lease, license, encumber or otherwise dispose of dividends or distributions to Parent or any of its Subsidiaries by a Subsidiary the assets of Parent), or (iii) redeem, purchase, acquire or offer to purchase the MGM Companies or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, additional material assets; or (ivB) merge terminate or consolidate with any Person or acquire in any material business of respect amend any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the OfferParent Contract; (bviii) take Except in the ordinary course of business consistent with past practice, terminate the services of any action employee of the MGM Companies or omit make any material change to take any action that is intended the compensation or would reasonably be expected benefits provided to result in any of the conditions MGM Companies’ employees; (ix) Fail to use commercially reasonable efforts to keep in full force and effect present insurance policies or other comparable insurance benefiting the Offer assets of any of the MGM Companies and the conduct of their respective businesses; (x) Except as set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (cSection 6.2(b)(x) take any action that would result in a failure to maintain the trading of the Parent Stock on Disclosure Schedule, enter into, create, incur or assume any obligations, or enter into any agreement, in any case with any Affiliates or Related Parties of any of the NYSEMGM Companies, other than any arrangements entered into in the ordinary course with Subsidiaries; or (dxi) Enter into any contract, arrangement or understanding, or agree, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (aactions described in Section 6.2(b) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless any action that would make any of the method representations or source warranties of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty Parent contained in this Agreement untrue or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration incorrect in any such transaction and material respect or prevent Parent from performing or cause Parent not to perform its covenants hereunder or under any other Transaction Document to which it is a party (iiiit being acknowledged that this clause (xi) the negotiation or consummation of any such acquisition is not reasonably likely intended to materially delay prohibit Parent from terminating this Agreement in accordance with Article VIII or prevent rejecting this Agreement on the completion of the Offer or the Mergerterms set forth in Section 6.8).

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that between the date hereof and the earlier of the date of the First Effective Time or the date, if any, on which this Agreement is validly terminated pursuant to Section 8.1, except as set forth in Section 6.02 5.2 of the Parent Disclosure Letter or otherwise expressly Letter, as specifically permitted or contemplated required by this Agreement (or Agreement, as required by applicable Law or as consented to in writing by the regulations Company (such consent not to be unreasonably withheld, conditioned or requirements of any stock exchange or regulatory organization applicable to Parentdelayed), from the date of this Agreement to the Effective Time, Parent shallshall not, and shall cause each of its Subsidiaries Parent Subsidiary not to, conduct directly or indirectly: (a) amend, modify, waive, rescind, change or otherwise restate the Parent Governing Documents (whether by merger, consolidation, operation of law or otherwise) in a manner that would materially and adversely affect the Company Stockholders, or adversely affect the Company Stockholders relative to other holders of Parent Common Stock; (b) authorize, declare, set aside, make or pay any dividends on or make any distribution with respect to its business outstanding shares of capital stock or other equity interests (whether in cash, assets, stock or other securities of Parent or any Parent Subsidiary), except (i) dividends and distributions paid or made in the ordinary course of business consistent with past practice. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of practice by the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, (ii) declare, set aside or pay any dividend or distribution payable in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent or any of its Subsidiaries by a other wholly owned Parent Subsidiary of Parent)and (ii) for transactions that would require an adjustment to the Merger Consideration pursuant to Section 2.1(d) and for which the proper adjustment is made; (c) split, combine, subdivide, reduce or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire reclassify any of its capital stock or other equity interests, except for (i) any security convertible into such transaction involving only wholly owned Parent Subsidiaries, and (ii) any transactions that would require an adjustment to the Merger Consideration pursuant to Section 2.1(d) and for which the proper adjustment is made; (d) liquidate (completely or exchangeable partially), dissolve or adopt any plan or resolution providing for its capital stockany of the foregoing, in each case, with respect to Parent, Merger Sub I or Merger Sub II; (ive) merge or consolidate with any Person or acquire any material business of any Person (other than a including by merger, consolidation or acquisition among whollyof stock or assets or any other means) or publicly announce an intention to so acquire, or enter into any agreements providing for any acquisitions of, any equity interests in or a material portion of the assets of any Person (or any business or division thereof) that (i) would require (A) the filing by Parent or any Parent Subsidiaries of a Notification and Report Form pursuant to the HSR Act with respect to such acquisition or (B) any pre-owned Subsidiaries closing approvals, consents, waivers or clearances under any Regulatory Laws of the jurisdictions set forth on Section 3.4(a) of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case Disclosure Letter with respect to this clause such acquisition and (iv), if such action would be reasonably likely to delay the consummation of the Offer; (bii) take any action or omit to take any action that is intended or would reasonably be expected to result in prevent (A) any waiting period (or extensions thereof) applicable to the Transactions under the HSR Act from expiring or terminating prior to the Outside Date or (B) Parent, Merger Sub I or Merger Sub II from obtaining, prior to the Outside Date, any of the conditions required pre-closing approvals, consents, waivers or clearances applicable to the Offer Transactions under any Regulatory Laws of the jurisdictions set forth in Annex A or on Section 3.4(a) of the conditions to the Merger in Article VII not being satisfiedCompany Disclosure Letter; (cf) take any action, or knowingly fail to take any action, which action or failure to act would or would be reasonably expected to prevent or impede the Mergers, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; (g) subject to Section 6.2, take or cause to be taken any action that would result in a failure reasonably be expected to maintain materially delay, impede or prevent the trading consummation of the Parent Stock Transactions on or before the NYSEOutside Date; or (dh) agreeagree or authorize, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters set forth Prior to the Closing Date, unless the Company shall otherwise agree in Section 6.02 of the Parent Disclosure Letter writing or as otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from the date of this Agreement to the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course of business consistent with past practice. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) The business of Parent shall be conducted only in the ordinary course;; (b) Parent shall not (i) amend directly or propose indirectly redeem, purchase or otherwise acquire or agree to amend Parent’s certificate redeem, purchase or otherwise acquire any shares of incorporation or bylaws or similar governing documents, its capital stock; (ii) amend its charter or Bylaws other than to effectuate the transactions contemplated hereby; or (iii) split, combine or reclassify its capital stock or declare, set aside or pay any dividend or distribution payable in cash cash, stock or otherwise property or make any distribution with respect to such stock; (other than c) Except as contemplated by this Agreement, Parent shall not (Ai) stock dividends issue or distributions for which an appropriate adjustment is effected pursuant agree to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent or issue any of its Subsidiaries by a Subsidiary of Parent)additional shares of, or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights of any kind to acquire any of shares of, its capital stock other than to effectuate the transactions contemplated or permitted pursuant to this Agreement; (ii) acquire or dispose of any assets other than in the ordinary course of business (except for dispositions in connection with Section 7.2(a) hereof); (iii) incur additional Indebtedness or any security convertible other liabilities or enter into or exchangeable for its capital stock, or any other transaction except in the ordinary course of business; (iv) merge enter into any contract, agreement, commitment or consolidate with any Person or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case arrangement with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions foregoing or (v) enter into any contract, agreement, commitment or arrangement to the Offer set forth dissolve, merge, consolidate or enter into any other material business contract or enter into any negotiations in Annex A or the conditions to the Merger in Article VII not being satisfiedconnection therewith; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSE; or (d) agreeParent will not, nor will it authorize any director or authorize or otherwise permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). Parent will promptly advise the Company orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving Parent or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to take be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.; and

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from agrees that between the date of this Agreement and the date of the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except (a) as set forth in Section 6.2 of the Effective TimeParent Disclosure Letter, (b) as specifically required by this Agreement, (c) as required by Law or (d) as consented to in writing (including via email from the person named in Section 10.5 to receive notices on behalf of the Company hereunder) by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent shall, (i) shall and shall cause each of its Subsidiaries Parent Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice. In addition, including by using commercially reasonable efforts to preserve intact its and without limiting the generality of the foregoingtheir present business organizations and to preserve its and their present relationships with customers, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise suppliers, Governmental Entities and other Persons with whom it and they have material business relations; provided, however, that no action that is expressly permitted by any of clauses (a) through (g) of Section 6.2(ii) shall be deemed a breach of this Agreementclause (i), from and (ii) agrees that between the date of this Agreement and the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to the Effective TimeSection 9.1, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) authorize or pay any dividends on or make any distribution with respect to its outstanding shares (whether in cash, assets, stock or other securities of Parent or Parent Subsidiaries), except (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, regular quarterly dividends in an amount not to exceed $0.51 per quarter and (ii) declare, set aside dividends and distributions paid or pay any dividend or distribution payable made on a pro rata basis by Parent Subsidiaries in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders the ordinary course of Parent in amounts business consistent with past practice and (C) the payment of dividends or distributions by a wholly owned Parent Subsidiary to Parent or another wholly owned Parent Subsidiary; (b) split, combine, reduce or reclassify any of its Subsidiaries issued or unissued shares, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, its shares, except for any such transaction by a wholly owned Parent Subsidiary which remains a wholly owned Parent Subsidiary after consummation of Parent)such transaction; (c) authorize or announce an intention to authorize, or enter into agreements providing for, any acquisitions of an equity interest in or a substantial portion of the assets of any Person or any business or division thereof, or any mergers, consolidations or business combinations or any acquisitions of equity or assets, mergers, consolidations or business combinations that, in any case, would reasonably be expected to prevent or materially delay or impede the consummation of the Transactions; (iiid) redeemamend the Parent Governing Documents in a manner that would be adverse to the holders of Company Shares; (e) issue, purchasedeliver, acquire grant, sell, pledge, dispose of or offer to purchase encumber, or acquire authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any shares of in its capital stock stock, voting securities or other equity interest in the Parent or any options, warrants or rights to acquire any of its capital stock or any security securities convertible into or exchangeable for its capital any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares, voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than (i) issuances of shares of Parent Common Stock in respect of any exercise of Parent stock options or the vesting or settlement of Parent Equity Awards, (ii) transactions between Parent and a wholly owned Parent Subsidiary or between wholly owned Parent Subsidiaries, (iii) issuances of Parent Equity Awards and (iv) merge or consolidate with any Person or acquire any material business other issuances of any Person (other than shares of Parent Common Stock for an amount not exceeding a merger, consolidation or acquisition among wholly-owned Subsidiaries number of shares equal to 2% of the Company or a merger consolidation or acquisition involving solely outstanding shares of Parent Common Stock in the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSEaggregate; or (df) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) acquisitions of shares of Parent Common Stock tendered by holders of Parent Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (ii) the acquisition by the Parent of Parent Equity Awards in connection with the forfeiture of such awards, (iii) actions set forth on Section 6.2(f) of the Parent Disclosure Schedule, (iv) transactions between the Parent and a wholly owned Parent Subsidiary or between wholly owned Parent Subsidiaries and (v) other acquisitions of shares of Parent Common Stock for an amount not exceeding a number of shares equal to 2% of the outstanding shares of Parent Common Stock in the aggregate; or (g) agree, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from agrees that between the date of this Agreement and the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (a) as set forth in Section 5.2 of the Effective TimeParent Disclosure Letter, (b) as specifically required by this Agreement, (c) as required by Law or Order or (d) as consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent shall, (i) shall and shall cause each of its Subsidiaries Parent Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice. In addition, including by using reasonable best efforts to (X) preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers and other Persons with whom it and they have material business relations and (Y) keep available the services of the current officers and key employees of Parent and the Parent Subsidiaries; provided, however, that no action that is specifically permitted by any of clauses (a) through (k) of Section 5.2(ii) shall be deemed a breach of this clause (i), and without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from (ii) agrees that between the date of this Agreement and the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to the Effective TimeSection 8.1, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, (ii) declare, set aside authorize or pay any dividend dividends on or make any distribution payable with respect to its outstanding shares (whether in cash cash, assets, stock or otherwise (other than (A) stock dividends securities of Parent or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(eParent Subsidiaries), except (Bi) quarterly cash dividends paid to the stockholders of Parent the Company in amounts an amount not in excess of $0.30 per share, consistent with past practice practice, and (Cii) the payment of dividends or and distributions by a wholly owned Parent Subsidiary to Parent or another wholly owned Parent Subsidiary; (b) split, combine, reduce or reclassify any of its issued or unissued shares, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, its shares, except for any such transaction by a wholly owned Parent Subsidiary which remains a wholly owned Parent Subsidiary after consummation of such transaction; (c) authorize or announce an intention to authorize, or enter into agreements providing for, any acquisitions of an equity interest in or a substantial portion of the assets of any Person or any business or division thereof, or any mergers, consolidations or business combinations or any acquisitions of equity or assets, mergers, consolidations or business combinations that, in any case, would reasonably be expected to prevent or materially delay or impede the consummation of the Transactions; provided that Parent shall consult in advance with the Company with respect to any acquisition in excess of $200,000,000; (d) amend the Parent Governing Documents (other than the Parent Charter Amendment) or permit the Merger Subs to amend any organizational documents; (e) make any material change in financial accounting policies or procedures or any of its Subsidiaries methods of reporting income, deductions or other material items for financial accounting purposes, except as required by a Subsidiary GAAP or SEC policy; (f) issue, deliver, grant, sell, pledge, dispose of Parent)or encumber, or (iii) redeemauthorize the issuance, purchasedelivery, acquire grant, sale, pledge, disposition or offer to purchase encumbrance of, any shares, voting securities or acquire any shares of its capital stock other equity interest in Parent or any options, warrants or rights to acquire any of its capital stock Parent Subsidiary or any security securities convertible into or exchangeable for its capital any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares, voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than (i) issuances of Parent Shares in respect of any exercise of Parent Stock Options, any purchase rights under Parent’s employee stock purchase plan, or the vesting or settlement of Parent Equity Awards, (ii) issuances of Parent Shares issuable pursuant to the terms of the Parent Convertible Notes or pursuant to the terms of the Parent Warrants, (iii) transactions between Parent and a wholly owned Parent Subsidiary or between wholly owned Parent Subsidiaries, (iv) merge issuances of Parent Equity Awards and (v) other issuances of Parent Shares for an amount not exceeding $150,000,000 in the aggregate; (g) directly or consolidate with any Person indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) acquisitions of Parent Shares tendered by holders of Parent Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (ii) the acquisition by Parent of Parent Equity Awards in connection with the forfeiture of such awards, and (iii) transactions between Parent and a wholly owned Parent Subsidiary or between wholly owned Parent Subsidiaries; (h) make (except for elections made in the ordinary course of business) or change any material business Tax election, change any Tax accounting period for purposes of a material Tax or material method of Tax accounting, file any Person (other than material amended Tax Return, settle or compromise any audit or proceeding relating to a mergermaterial amount of Taxes, consolidation except in the ordinary course of business, agree to an extension or acquisition among wholly-owned Subsidiaries waiver of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case statute of limitations with respect to this clause a material amount of Taxes, enter into any “closing agreement” within the meaning of Section 7121 of the Code (iv)or any similar provision of state, if local, or non-U.S. Law) with respect to any material Tax, or surrender any right to claim a material Tax refund; (i) convene any meeting of the holders of Parent Stock for the purpose of revoking or varying the authority of the directors of Parent to allot Parent Stock; (j) enter into any joint development or similar collaboration agreement, except any such action agreement that would not reasonably be reasonably likely expected to prevent or materially delay or impede the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSETransactions; or (dk) agree, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of During the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), period from the date of this Agreement to the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, conduct maintain its existence and carry on its business in the usual, regular and ordinary course in substantially the same manner has heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to keep available the services of its current officers and employees and preserve its relationships with physicians, customers, suppliers, licensers, lessor, third party payors and others having business consistent dealings with past practiceit. In addition, and without limiting the generality of the foregoing, except for matters Except as set forth in Section 6.02 4.2 of the Parent Disclosure Letter or otherwise expressly as specifically permitted by any other provision of this Agreement, from the date of this Agreement to the Effective Time, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parentregulations), between the date of this Agreement and shall not permit any of its Subsidiaries tothe Effective Time, do directly or indirectly, do, or agree to do, any of the following following, without the prior written consent of the Company, which consent shall will not be unreasonably withheld or delayedwithheld: (a) amend or otherwise change Parent's Amended and Restated Articles of Incorporation or Amended and Restated Bylaws in a manner that adversely affects the rights of holders of Parent Common Stock; (ib) amend or propose otherwise change Sub's Certificate of Incorporation or Bylaws; provided, however, that Parent may amend or cause to amend Parent’s certificate be amended ARTICLE FOURTH of incorporation or bylaws or similar governing documentsthe Certificate of Incorporation of Sub to increase the total number of shares of common stock, $.01 par value per share, that Sub shall have authority to issue; (iic) declare, set aside aside, make or pay any dividend or distribution other distribution, payable in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e)cash, (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent or any of its Subsidiaries by a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, property or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a mergerotherwise, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation any of the Offer;Parent's capital stock; or (bd) take any action or omit to take any action that is intended or would could reasonably be expected to (x) make any of its representations or warranties contained in this Agreement that is qualified as to materiality untrue or incorrect, (y) make any of its representations or warranties contained in this Agreement that is not so qualified untrue or incorrect in any material respect or (z) result in any of the conditions to the Offer Closing set forth in Annex A Article VI not being satisfied or in the conditions to consummation of the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSE; or (d) agree, authorize or otherwise to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Mergerdelayed.

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from agrees that between the date of this Agreement and the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (a) as set forth in Section 5.2 of the Effective TimeParent Disclosure Letter, (b) as specifically required by this Agreement, (c) as required by Law or (d) as consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent shall, (i) shall and shall cause each of its Subsidiaries Parent Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice. In addition, including by using reasonable best efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers and other Persons with whom it and they have material business relations; provided, however, that no action that is specifically permitted by any of clauses (a) through (i) of Section 5.2(ii) shall be deemed a breach of this clause (i), and without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from (ii) agrees that between the date of this Agreement and the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to the Effective TimeSection 8.1, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries Parent Subsidiary to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, (ii) declare, set aside authorize or pay any dividend dividends on or make any distribution payable with respect to its outstanding shares (whether in cash cash, assets, stock or otherwise (other than (A) stock dividends securities of Parent or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(eParent Subsidiaries), (B) quarterly cash except dividends and distributions paid to stockholders or made on a pro rata basis by Parent Subsidiaries in the ordinary course of Parent in amounts business consistent with past practice and (C) the payment of dividends or distributions by a wholly owned Parent Subsidiary to Parent or another wholly owned Parent Subsidiary; (b) split, combine, reduce or reclassify any of its Subsidiaries issued or unissued shares, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, its shares, except for any such transaction by a wholly owned Parent Subsidiary which remains a wholly owned Parent Subsidiary after consummation of such transaction; (c) authorize or announce an intention to authorize, or enter into agreements providing for, any acquisitions of an equity interest in or a substantial portion of the assets of any Person or any business or division thereof, or any mergers, consolidations or business combinations or any acquisitions of equity or assets, mergers, consolidations or business combinations that, in any case, would reasonably be expected to prevent or materially delay or impede the consummation of the Transactions; (d) amend the Parent Governing Documents, and shall not permit US Holdco or the Merger Subs or any Significant Subsidiary of Parent)Parent to amend any organizational documents; (e) issue, deliver, grant, sell, pledge, dispose of or encumber, or (iii) redeemauthorize the issuance, purchasedelivery, acquire grant, sale, pledge, disposition or offer to purchase encumbrance of, any shares, voting securities or acquire any shares of its capital stock other equity interest in the Parent or any options, warrants or rights to acquire any of its capital stock Parent Subsidiary or any security securities convertible into or exchangeable for its capital any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares, voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than (i) issuances of Parent Shares in respect of any exercise of Parent stock options or the vesting or settlement of Parent Equity Awards, (ii) transactions between Parent and a wholly owned Parent Subsidiary or between wholly owned Parent Subsidiaries, (iii) issuances of Parent Equity Awards and (iv) merge or consolidate with any Person or acquire any material business other issuances of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries shares of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on for an amount not exceeding $100,000,000 in the NYSEaggregate; or (df) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) acquisitions of Parent Shares tendered by holders of Parent Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto (ii) the acquisition by the Parent of Parent Equity Awards in connection with the forfeiture of such awards, (iii) transactions between the Parent and a wholly owned Parent Subsidiary or between wholly owned Parent Subsidiaries and (iv) other acquisitions of shares of Parent Stock for an amount not exceeding $100,000,000 in the aggregate; (g) make or change any material Tax election, change any Tax accounting period for purposes of a material Tax or material method of Tax accounting, file any material amended Tax Return, settle or compromise any audit or proceeding relating to a material amount of Taxes, except in the ordinary course of business, agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes, enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to any material Tax, or surrender any right to claim a material Tax refund; (h) convene any meeting of the holders of Parent Stock for the purpose of revoking or varying the authority of the directors of Parent to allot Parent Stock; or (i) agree, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that between the date hereof and the earlier of the Effective Time or the date, if any, on which this Agreement is validly terminated pursuant to Section 10.1, except as set forth in Section 6.02 7.2 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or Letter, as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent(including COVID-19 Measures), from as reasonably required in response to COVID-19, or as consented to in writing by the date of this Agreement to the Effective TimeCompany (which consent shall not be unreasonably withheld, conditioned or delayed), Parent (a) shall, and shall cause each of its Subsidiaries Parent Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice and (b) shall not, and shall cause each Parent Subsidiary not to, directly or indirectly: (i) amend, modify, waive, rescind, restate or otherwise change (A) the Existing Parent Charter (other than (I) by amending the Existing Parent Charter in the form of the Parent Charter and by filing the Avian Merger Certificate, in each case as contemplated by and in accordance with this Agreement, or (II) as may be necessary to (and solely to) authorize additional equity in connection with an acquisition permitted under Section 7.2(b)(iv)(C) or in order to make ordinary course issuances of equity incentive grants), (B) the bylaws of Parent (other than by amending the Existing Parent Bylaws in the form of the Parent Bylaws in accordance with this Agreement) or (C) any Parent Subsidiary’s certificate of incorporation, bylaws or equivalent or governing organizational documents (except, in the case of HoldCo, (I) by amending the Initial HoldCo Charter in the form of the HoldCo Charter, by filing the HoldCo Amendment and by amending the Initial HoldCo Bylaws in the form of the HoldCo Bylaws as contemplated by and in accordance with this Agreement or (II) as may be necessary to (and solely to) authorize additional equity in connection with an acquisition permitted under Section 7.2(b)(iv)(C) or in order to make ordinary course issuances of equity incentive grants); (ii) authorize, declare, set aside, make or pay any dividends on or distributions with respect to its outstanding shares of capital stock or other equity interests (whether in cash, assets, shares, units or other securities of Parent or any Parent Subsidiary), or enter into any agreement and arrangement with respect to the voting of its capital stock, units or other equity interests, except as may be necessary to (and solely to) authorize additional equity in connection with an acquisition permitted under Section 7.2(b)(iv)(C); (iii) split, combine, subdivide, reduce or reclassify any shares of its capital stock or other equity interests, or redeem, purchase or otherwise acquire any shares of its capital stock or other equity interests, or issue any shares of its capital stock or other equity interests or any other securities in respect of, in lieu of or in substitution for, shares of its capital stock or other equity interests; (iv) issue, deliver, grant, sell, pledge, dispose of or encumber any shares of its capital stock or other equity interests or any securities convertible into or exchangeable or exercisable for any such shares or equity interests, or any rights, warrants or options to acquire any such shares or equity interests or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units or take any action to cause to be exercisable or vested any otherwise unexercisable or unvested equity award under any existing Parent Equity Plan, except (A) issuances of Parent Common Stock in respect of any exercise of vested Parent Options outstanding on the date hereof, in all cases in accordance with their respective terms as of the date hereof, (B) ordinary course issuances of equity incentive grants, (C) issuances that do not constitute “Additional Shares of Common” pursuant to Article V, Sections 4(d)(1), (2), (3) or (7) of the Existing Parent Charter, and (D) issuances in connection with an acquisition permitted under Section 7.2(b)(iv)(C); (v) enter into any binding agreement providing for, or consummate, any acquisition (including by merger, business combination, consolidation or acquisition of stock or assets or any other means) of any equity interests in or assets of, or investment in (by contribution to capital, transfer of property, purchase of securities or otherwise), any Person or any business or division thereof, or otherwise engage in any mergers, consolidations or business combinations, except for (A) acquisitions of supplies and equipment in the ordinary course of business, (B) capital expenditures made in the ordinary course of business or (C) acquisitions of any equity interests in or assets of any Person or any business or division thereof (x) for consideration that does not exceed $75,000,000 individually or $150,000,000 in the aggregate for all such acquisitions and (y) that would not reasonably be expected to impede, interfere with, delay, postpone, adversely affect or prevent the consummation of the Transactions; (vi) liquidate (completely or partially), dissolve, recapitalize or effect any other similar reorganization (including any recapitalization or reorganization between or among any of Parent or the Parent Subsidiaries), or adopt any plan or resolution providing for any of the foregoing; (vii) sell, lease, assign, abandon, permit to lapse, transfer, exchange, swap or otherwise dispose of, or subject to any Lien (other than Permitted Liens), any of its material properties, rights or assets (including limited liability company interests or other equity interests of Parent or the Parent Subsidiaries and including Parent Intellectual Property), except (A) the lapse or abandonment of Parent Intellectual Property in the ordinary course of business consistent with past practice or otherwise in Parent’s reasonable business judgement, (B) sales (x) having a fair market value that does not exceed $75,000,000 individually or $150,000,000 in the aggregate for all such sales and (y) that would not reasonably be expected to impede, interfere with, delay, postpone, adversely affect or prevent the consummation of the Transactions and (C) leases of real property or the lapse or termination thereof in the ordinary course of business consistent with past practice. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed:; (aviii) (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documentsin each case, (ii) declare, set aside or pay any dividend or distribution payable in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders in the ordinary course of Parent in amounts business consistent with past practice and practice, waive, release or assign any material rights or claims under any Parent Material Contract; (Cix) the payment of dividends make any material change in financial accounting policies, practices, principles or distributions to Parent procedures or any of its Subsidiaries methods of reporting income, deductions or other material items for financial accounting purposes, except as required by a Subsidiary of Parent), GAAP or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offerapplicable Law; (bx) take enter into any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSEAffiliate Arrangement; or (dxi) agree, authorize commit or otherwise authorize, in writing or otherwise, to take any of the foregoing actions. Notwithstanding Nothing contained in this Agreement is intended to give the foregoingCompany, directly or indirectly, the right to control or direct the operations of Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless any of the method or source Parent Subsidiaries prior to the Effective Time in violation of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Mergerapplicable Antitrust Law.

Conduct of Business by Parent Pending the Closing. Except for matters Parent agrees that between the date hereof and the earlier of the date of the Effective Time or the date, if any, on which this Agreement is validly terminated pursuant to Section 9.1, except as set forth in Section 6.02 6.2 of the Parent Disclosure Letter or otherwise expressly Letter, as specifically permitted or contemplated required by this Agreement (or Agreement, as required by applicable Law or as consented to in writing by the regulations Company (which consent shall not be unreasonably withheld, conditioned or requirements of any stock exchange or regulatory organization applicable to Parentdelayed), from the date of this Agreement to the Effective Time, Parent shallshall not, and shall cause each of its Subsidiaries not permit any Parent Subsidiary to, conduct directly or indirectly: (a) amend the Parent Governing Documents in a manner that would be material and disproportionately adverse to the holders of Company Common Stock relative to the treatment of existing holders of Parent Common Stock; (b) authorize, declare, set aside, make or pay any dividends on or make any distribution with respect to its business outstanding shares of capital stock or other equity interests (whether in cash, assets, stock or other securities of Parent or any Parent Subsidiary), except (A) dividends and distributions paid or made in the ordinary course of business consistent with past practice. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of by the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement Subsidiaries and (B) for transactions that would require an adjustment to the Effective Time, Parent shall not (unless required by applicable Law or Offer Consideration and the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend Parent’s certificate of incorporation or bylaws or similar governing documents, (ii) declare, set aside or pay any dividend or distribution payable in cash or otherwise (other than (A) stock dividends or distributions for which an appropriate adjustment is effected Merger Consideration pursuant to Section 1.01(g1.1(d) or 3.01(eand Section 3.1(d), respectively, and for which the proper adjustment is made; (Bc) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends split, combine, subdivide, reduce or distributions to Parent or any of its Subsidiaries by a Subsidiary of Parent), or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire reclassify any of its capital stock or any security convertible into or exchangeable for its capital stock, or except for (ivi) merge or consolidate with any Person or acquire for any material business of such transaction involving only wholly owned Parent Subsidiaries, and (ii) any Person (other than a merger, consolidation or acquisition among wholly-owned Subsidiaries of transactions that would require an adjustment to the Company or a merger consolidation or acquisition involving solely Offer Consideration and the Company Merger Consideration pursuant to Section 1.1(d) and its wholly-owned SubsidiariesSection 3.1(d), in each case respectively, and for which the proper adjustment is made; (d) adopt a plan of complete or partial liquidation or dissolution with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the OfferParent; (be) subject to Section 7.2, take any action or omit cause to take be taken any action that is intended or would reasonably be expected to result in any prevent the consummation of the conditions to Transactions on or before the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSEOutside Date; or (df) agreeagree or authorize, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.

Conduct of Business by Parent Pending the Closing. Except for matters Parent covenants and agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 6.02 5.2 of the Parent Disclosure Letter Schedules or otherwise as expressly permitted or contemplated by any other provision of this Agreement (or as required by applicable Law (provided, that if Parent or any member of the regulations or requirements Parent Group is required by applicable Law to take an action in conflict with this Section 5.2, Parent will, to the extent permitted by Law, provide the Company with written notice in advance of any stock exchange or regulatory organization applicable to Parenttaking such action), from unless the date of this Agreement to the Effective TimeCompany provides prior written consent (which consent will not be unreasonably withheld, delayed or conditioned), Parent shall, will conduct and shall cause each member of its Subsidiaries to, the Parent Group to conduct its business operations in the ordinary course of business consistent and use commercially reasonable efforts to (i) preserve substantially intact its business organization, (ii) keep available the services of its executive officers and key employees on commercially reasonable terms, (iii) maintain in effect all Parent Permits, (iv) remain in compliance in all material respects with past practicethe Parent Treasury Restrictions and (v) maintain satisfactory relationships of the Parent Group with any persons with which the Parent Group has material business relations and with Governmental Entities that have jurisdiction over its business and operations. In addition, and without Without limiting the generality of the foregoing, and as an extension thereof, except for matters as set forth in Section 6.02 5.2 of the Parent Disclosure Letter Schedule or otherwise as expressly contemplated by any other provision of this Agreement or as required by applicable Law (provided, that if Parent or any other member of the Parent Group is required by applicable Law to take an action in conflict with this Section 5.2, Parent will, to the extent permitted by this AgreementLaw, from provide the Company with written notice in advance of taking such action), Parent will not, between the date of this Agreement to and the Effective Time, Parent shall not (unless required by applicable Law directly or the regulations indirectly, do, or requirements of any stock exchange agree to do, or regulatory organization applicable to Parent), and shall not permit any other member of its Subsidiaries tothe Parent Group to do, do or agree to do, any of the following without the prior written consent of the Company, Company (which consent shall will not be unreasonably withheld, delayed or conditioned, except with respect to Section 5.2(a), (b), (d), (e) and (h), which may be granted or withheld or delayed:in the Company’s sole discretion): (a) (i) amend or propose to amend Parent’s the certificate of incorporation or bylaws by-laws of Parent; (b) issue, sell, pledge, dispose of, grant, transfer or similar governing documentsencumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of, or other Equity Interests in, any member of Parent Group of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including any such interest represented by Contract right), of any member of Parent Group, other than (i) the issuance of Shares upon the vesting of Parent RSU Awards outstanding as of the date hereof in accordance with their terms, (ii) the issuance of Shares upon the exercise of the Parent Options, (iii) the issuance of Shares upon the exercise of the Parent Warrants, (iv) the issuance or transfer of Equity Interests of a member of Parent Group to another member of Parent Group or (v) as set forth on Section 5.2(b) of the Company Disclosure Schedule; (c) sell, pledge, abandon, dispose of, transfer, lease, license or encumber (other than pursuant to Permitted Liens) any material Trademarks or material property or assets of Parent Group (other than non-exclusive grants of licenses in Intellectual Property Rights in the ordinary course of business), except pursuant to, or as required by, Contracts in effect as of the date of this Agreement; (d) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash cash, stock, property or a combination thereof) with respect to any of Parent’s capital stock or enter into any agreement with respect to the voting or registration of its capital stock; (e) reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise (acquire, directly or indirectly, any of Parent’s capital stock, other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent Equity Interests or any of its Subsidiaries by a Subsidiary of Parent)other securities, or (iii) redeemauthorize or propose the issuance of any other securities in respect of, purchase, acquire in lieu of or offer to purchase or acquire any in substitution for shares of its capital stock or other securities, except for cashless settlements and purchases of Parent Common Stock in connection with the exercise of Parent Options or the vesting or settlement of any options, warrants Parent Equity Award or rights to acquire fund any of its capital stock or any security convertible into or exchangeable for its capital stock, or Tax obligations in connection therewith; (ivf) merge or consolidate with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization; (g) other than in the ordinary course of business, acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any Person or any division thereof or any assets in an amount in excess of $5,000,000 individually or $15,000,000 in the aggregate, other than the planned purchase of aircraft and associated equipment pursuant to Contracts in force on the date hereof as set forth in Section 5.1(g) of the Parent Disclosure Schedule; (h) enter into any new line of business; (i) other than in the ordinary course of business, (i) repurchase, prepay or incur any indebtedness for borrowed money or issue any debt securities, or issue or sell options, warrants, calls or other rights to acquire any material business debt securities of any member of Parent Group, other than (A) for the financing of aircraft or associated equipment (including engines) pursuant to the Parent Aircraft Finance Contracts or which Parent is otherwise contractually obligated as of the date hereof to purchase or lease, and any pre-delivery deposits with respect to the foregoing, (B) under any Credit Card Contract, (C) in connection with the refinancing of any indebtedness or debt securities of Falcon or, in connection with Closing, Saturn in a principal amount not greater than the amount so refinanced or (D) in connection with Parent’s obligations at Closing under this Agreement, or (ii) assume, guarantee or endorse, or otherwise become liable or responsible for similar obligations contemplated in clauses (i) and (ii) of any Person for borrowed money; (j) other than in the ordinary course of business or as otherwise required in connection Parent’s or its Affiliates’ contractual or legal obligation to negotiate in good faith with a mergerlabor union, consolidation (i) enter into or acquisition among wholly-owned Subsidiaries amend any collective bargaining agreement; provided, that, Parent shall use commercially reasonable efforts to keep the Company reasonably informed of material communications between any member of Parent Group and a labor union in connection with any such negotiation or collective bargaining agreement, or (ii) implement any early retirement or separation program, or any program providing early retirement window benefits or announce or plan any such action or program for the future; (k) enter into, terminate or materially amend any Parent Related Party Transaction; (l) compromise, settle or agree to settle any Proceeding, other than any compromise, settlement or agreement in the ordinary course of business for the payment of monetary damages (and compliance with confidentiality and other similar customary provisions) by Parent of $5,000,000 or less as its sole remedy; (m) (i) make, change, or revoke any material Tax election, (ii) settle or compromise any claim, assessment, audit, proceeding, or other controversy, or enter into any “closing agreement” within the meaning of Section 7121 of the Company Code (or any similar provision of state, local, or foreign Law) in respect of material Taxes, (iii) adopt or change any material Tax accounting method or period, (iv) file or amend any material Tax Return or take any position on any material Tax Return filed on or after the date of this Agreement that is inconsistent with elections made or positions taken in preparing or filing similar Tax Returns in prior periods, (v) surrender any right to claim a merger consolidation material Tax refund, or acquisition involving solely (vi) consent to any extension or waiver of the Company and its wholly-owned Subsidiaries)statute of limitations applicable to any material Tax claim or assessment; (n) agree, resolve, authorize or enter into any Contract or otherwise make any commitment, in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSE; or (d) agree, authorize or otherwise to take do any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to in clauses (a) repurchasethrough (m). Without limiting Section 5.2, retire nothing contained in this Agreement will give the Company, directly or refinance outstanding indebtedness indirectly, the right to control or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless direct the operations of the method or source Parent Group prior to the Effective Time. Prior to the Effective Time, the Parent Group will exercise, consistent with the terms and conditions of financing for such acquisition)this Agreement, so long as (i) the fair market value of the total consideration (including licenseSection 5.2, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction complete control and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Mergersupervision over its operations.

Conduct of Business by Parent Pending the Closing. Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from agrees that between the date of this Agreement to and the Effective TimeTime or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (1) as required by this Agreement or any document, agreement, certificate or instrument contemplated hereby, (2) as required by Law or (3) upon written request by Parent, as consented to in writing by the Company (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall, (i) shall and shall cause each of its Subsidiaries to, conduct its business in all material respects in the ordinary course of business consistent with past practice. In additionpractice and use commercially reasonable efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers and other Persons with whom it and they have material business relations; provided, that no action that is specifically permitted by any of clauses (a) through (h) of this Section 6.2 shall be deemed a breach of this clause (i), and without limiting the generality of the foregoing, except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, (ii) Parent shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent)not, and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed: (a) split, combine, reduce or reclassify any of its capital stock; (ib) amend or propose the Parent Governing Documents in a manner that would have a disproportionate adverse effect on the Holders as compared to amend other stockholders of Parent’s certificate , and shall not permit any of incorporation or bylaws or similar its Subsidiaries to adopt any material amendments to its governing documents; (c) make, (ii) declare, set aside declare or pay any dividend or other distribution payable in cash on any shares of its or otherwise its Subsidiaries’ capital stock, or any other securities or obligations convertible into or exchangeable for any shares of its or its Subsidiaries’ capital stock (other than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash except dividends paid to stockholders by any of the Subsidiaries of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent or any of its Subsidiaries by their wholly owned Subsidiaries); (d) adopt a Subsidiary plan of Parent)complete or partial liquidation, dissolution, merger, amalgamation, consolidation, restructuring, recapitalization or other reorganization other than this Agreement; (iiie) redeem, purchase, acquire enter into any transaction or offer to purchase or acquire any shares series of its capital stock or any options, warrants or rights to acquire related transactions with any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person Affiliates (other than (i) any of its Subsidiaries or (ii) the directors, officers or employees of Parent or its Subsidiaries) unless the terms are substantially as favorable as Parent or its Subsidiary would obtain in a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or comparable arm’s length transaction with a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer; (b) take any action or omit to take any action person that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; (c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSEan Affiliate; or (df) agree, authorize in writing or otherwise otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, Parent shall be entitled to (a) repurchase, retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and (iii) the negotiation or consummation of any such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.