Common use of Conduct of Business of Parent Clause in Contracts

Conduct of Business of Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time (except as required by law or to the extent expressly contemplated by this Agreement), Parent agrees: (a) Parent agrees (except to the extent expressly contemplated by this Agreement or as consented to in writing by Company), to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; and (b) Parent shall not, and shall cause its Subsidiaries not to, without the prior written consent of Company, (i) except with respect to the issuance of Parent Common Stock and Parent Non-Voting Convertible Stock contemplated by this Agreement, issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than (i) the issuance of shares of Parent Common Stock pursuant to the exercise of stock options under Parent Stock Option Plans issued and outstanding on the date hereof, or other rights therefor outstanding as of the date of this Agreement, (ii) the issuance of stock options pursuant to the Parent Stock Option Plans, in each case, in the ordinary course of business; and (iii) the issuance of shares of Parent Common Stock pursuant to the Parent ESPP in the ordinary course of business. (ii) cause or permit any amendments to the Certificate of Incorporation or Bylaws of Parent; (iii) declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock; or split, combine or reclassify any of its capital stock or except for the issuance of shares of Parent Common Stock pursuant to the exercise of Parent Options issued and outstanding on the date hereof or in the ordinary course of business, issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service to it; (iv) transfer to any Person or entity any of its material Intellectual Property or any material rights to its material Intellectual Property, other than in the ordinary course of business; (v) sell, lease, license or otherwise dispose of or encumber any of its material properties or assets, except for in the ordinary course; (vi) incur any indebtedness for borrowed money under existing credit lines or otherwise, guarantee any such indebtedness or guarantee any debt securities of others in excess of $10,000,000 in the aggregate; (vii) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets or equity of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any material assets; (viii) revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business or as may be required by GAAP or the Exchange Act; or (ix) agree in writing or otherwise to take any of the actions described in Sections 4.3(b)(i) through (viii) above.

Conduct of Business of Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time (except as required by law or to the extent expressly contemplated by this Agreement), Parent agrees: (a) Parent agrees (except to the extent expressly contemplated by this Agreement or as consented to in writing by Company), to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; and (b) Parent shall not, and shall cause its Subsidiaries not to, without the prior written consent of Company, (i) except with respect to the issuance of Parent Common Stock and Parent Non-Voting Convertible Stock contemplated by this Agreement, issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than (i) the issuance of shares of Parent Common Stock pursuant to the exercise of stock options under Parent Stock Option Plans issued and outstanding on the date hereof, or other rights therefor outstanding as of the date of this Agreement, (ii) the issuance of stock options pursuant to the Parent Stock Option Plans, in each case, in the ordinary course of business; and (iii) the issuance of shares of Parent Common Stock pursuant to the Parent ESPP in the ordinary course of business. (ii) cause or permit any amendments to the Certificate of Incorporation or Bylaws of Parent; (iii) declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock; or split, combine or reclassify any of its capital stock or except for the issuance of shares of Parent Common Stock pursuant to the exercise of Parent Options issued and outstanding on the date hereof or in the ordinary course of business, issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service to it; (iv) transfer to any Person or entity any of its material Intellectual Property or any material rights to its material Intellectual Property, other than in the ordinary course of business; (v) sell, lease, license or otherwise dispose of or encumber any of its material properties or assets, except for in the ordinary course; (vi) incur any indebtedness for borrowed money under existing credit lines or otherwise, guarantee any such indebtedness or guarantee any debt securities of others in excess of $10,000,000 250,000 in the aggregate; (vii) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets or equity of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any material assets; (viii) revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business or as may be required by GAAP or the Exchange Act; or (ix) agree in writing or otherwise to take any of the actions described in Sections 4.3(b)(i) through (viii) above.

Conduct of Business of Parent. During the period from the date of this Agreement and continuing until hereof through the earlier Effective Time, except (i) as may be required by a Governmental Entity or applicable Law, (ii) with the prior written consent of the termination Company (which consent or denial thereof shall be delivered by the Company within five (5) Business Days following receipt of a written request therefor in accordance with Section 8.7), (iii) as permitted by the terms of this Agreement or (iv) as set forth in Section 5.2 of the Effective Time (except as required by law or to the extent expressly contemplated by this Agreement)Parent Disclosure Schedule, Parent agrees: (a) Parent agrees (except to the extent expressly contemplated by this Agreement or as consented to in writing by Company)shall, to carry on and shall cause each of its Subsidiaries to, conduct its business in the usual, regular and ordinary course consistent with past practice in substantially all material respects and, to the same manner extent consistent therewith, use reasonable best efforts to maintain and preserve intact its assets and business organization and its relationships with employees, officers, customers, suppliers, distributors, Governmental Entities and other business partners. Without limiting the foregoing, during the period from the date hereof through the Effective Time, except (i) as heretofore conducted; and may be required by a Governmental Entity or applicable Law, (bii) with the prior written consent of the Company (which consent or denial thereof shall be delivered by the Company within five (5) Business Days following receipt of a written request therefor in accordance with Section 8.7), (iii) as expressly permitted by the terms of this Agreement or (iv) as set forth in Section 5.2 of the Parent Disclosure Schedule, Parent shall not, and shall cause its Subsidiaries not to, without the prior written consent of Company,: (ia) except with respect amend the Parent Organizational Documents or the certificate of incorporation or bylaws or Merger Sub in a manner materially adverse to the issuance holders of Parent Company Common Stock and Parent Non-Voting Convertible Stock contemplated by this Agreement, issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than (i) the issuance of shares of Parent Common Stock pursuant to the exercise of stock options under Parent Stock Option Plans issued and outstanding on the date hereof, or other rights therefor outstanding as of the date of this Agreement, (ii) the issuance of stock options pursuant to the Parent Stock Option Plans, in each case, in the ordinary course of business; and (iii) the issuance of shares of Parent Common Stock pursuant to the Parent ESPP in the ordinary course of business. (ii) cause or permit any amendments to the Certificate of Incorporation or Bylaws of ParentStock; (iiib) declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock; or split, combine or reclassify any of its capital stock; (c) other than the issuance, grant or settlement of Parent Stock Awards, (A) issue, sell or otherwise permit to become outstanding any additional shares of its capital stock or except for the issuance of securities convertible or exchangeable into, or exercisable for, any shares of Parent Common Stock pursuant to the exercise of Parent Options issued and outstanding on the date hereof its capital stock or in the ordinary course of businessany options, issue warrants, or authorize the issuance other rights of any other securities in respect of, in lieu of or in substitution for kind to acquire any shares of its capital stock, or repurchase enter into any agreement, understanding or otherwise acquire, directly arrangement with respect to the sale or indirectly, any shares voting of its capital stock except from former employeesor equity interests or (B) enter into any agreement, directors and consultants in accordance understanding or arrangement with agreements providing for respect to the repurchase sale or voting of shares in connection with any termination of service to itits capital stock or other equity interests; (ivd) transfer convene any meeting of the holders of Parent Common Stock for the purpose of revoking or varying the authority of the directors of Parent to any Person or entity any of its material Intellectual Property or any material rights to its material Intellectual Property, other than in the ordinary course of businessissue Parent Common Stock; (ve) sell, lease, license adopt a plan of complete or otherwise dispose of partial liquidation or encumber any of its material properties or assets, except for in the ordinary coursedissolution; (vif) incur take any indebtedness for borrowed money under existing credit lines or otherwise, guarantee any such indebtedness or guarantee any debt securities of others in excess of $10,000,000 action that would reasonably be expected to result in the aggregate;failure of (A) the conditions set forth in Section 6.1 or Section 6.2 to be satisfied prior to the End Date or (B) Parent to obtain Financing in an amount sufficient, together with any other sources available to Parent and Merger Sub, to fund the payment of the Merger Amounts on or prior to the End Date; and (viig) acquire by merging or consolidating withagree to take, or by purchasing a substantial portion of the assets or equity ofmake any commitment to take, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any material assets; (viii) revalue any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business or as may be required by GAAP or the Exchange Act; or (ix) agree in writing or otherwise to take any of the foregoing actions described in Sections 4.3(b)(i) through (viii) abovethat are prohibited pursuant to this Section 5.2.