Common use of Conduct of Business Prior to Second Closing Clause in Contracts

Conduct of Business Prior to Second Closing. (a) Except as otherwise expressly required by the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of each Anchor Investor, between May 23, 2010 and the Second Closing, the Company shall, and the Company shall cause each Company Subsidiary to: (1) conduct its business only in the ordinary course; (2) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve the present relationships with persons having business dealings with the Company (including strategic partners, customers, suppliers, consultants and subcontractors); (3) use commercially reasonable efforts to maintain (A) all of the material assets and properties of, or used by, the Company or any Company Subsidiary in its current condition, with the exception of ordinary wear and tear, and (B) insurance upon all of the properties and assets of the Company and the Company Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (4) not (A) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its Capital Stock; (B) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (C) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities; (5) not issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such Capital Stock, voting securities or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement; (6) not terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, officer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to (i) a new chief financial officer and (ii) employees, in the ordinary course of business consistent with past practices) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of non-officers and non-directors, amounts that do not exceed $50,000 per year per employee in the aggregate) or make, grant or promise any increase in any employee benefit plan or arrangement, or amend or terminate any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement; (7) not terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business consistent with past practices), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of stock options, restricted stock, other equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than with respect to the salary of any employee (and, with respect to such employee, only in the ordinary course of business consistent with past practices); (8) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business or enter into any transaction with an Insider; (9) notwithstanding any other provision hereof, use all commercially reasonable efforts not to take, or omit to take, any action that is reasonably likely to result in any of the conditions precedent to either the First Closing or the Second Closing not being satisfied, or any action that is reasonably likely to materially impair the Company’s or any of the Company Subsidiaries’ ability to perform their obligations under the Transaction Documents or to consummate the transactions contemplated hereby, except as required by Law or the Transaction Documents; (10) not enter into any contract with respect to, or otherwise agree or commit to do, any of the foregoing; and (11) not make or change any material Tax election, change a material annual accounting period, adopt or change any material accounting method with respect to Taxes, file any amended material Tax Return, enter into any material closing agreement, settle or compromise any proceeding with respect to any material Tax claim or assessment relating to the Company or any of the Company Subsidiaries, surrender any right to claim a refund of material Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any material Tax Return or the payment of any material Tax.

Conduct of Business Prior to Second Closing. (a) Except as otherwise expressly required contemplated by this Agreement, during the Transaction Documents or applicable Law, by the performance of any Material Contract that was Previously Disclosed, or with the prior written consent of each Anchor Investor, between May 23, 2010 and the Second Closing, the Company shall, and the Company shall cause each Company Subsidiary to: (1) conduct its business only in the ordinary course; (2) use commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Company and any Company Subsidiary and (B) preserve the present relationships with persons having business dealings with the Company (including strategic partners, customers, suppliers, consultants and subcontractors); (3) use commercially reasonable efforts to maintain (A) all of the material assets and properties of, or used by, the Company or any Company Subsidiary in its current condition, with the exception of ordinary wear and tear, and (B) insurance upon all of the properties and assets of the Company and the Company Subsidiaries in such amounts and of such kinds comparable to that in effect on period from the date of this Agreement; Agreement to the Second Closing Date, Xxxxxxx Mortgage shall, and Seller shall cause Xxxxxxx Mortgage to, conduct its operations only according to the Ordinary Course, to preserve intact its business organizations, to keep available the services of its key employees and maintain satisfactory a relationship with material licensors, agents, solicitors, suppliers, distributors, customers, landlords, employees and others having business relationships with it. Notwithstanding the immediately preceding sentence, prior to the Second Closing Date, Xxxxxxx Mortgage shall, and Seller shall cause Xxxxxxx Mortgage to: (4a) not refrain from entering into and/or amending any contract except contracts in the Ordinary Course, (Ab) declarerefrain from accelerating, set aside or pay any distributions or dividends onterminating, modifying, or make canceling any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) to which Xxxxxxx Mortgage is a party or by which it is bound, except in the Ordinary Course; (c) refrain from canceling or waiving any claim or right of substantial value, (d) refrain from issuing or selling any shares of capital stock or any other distributions (whether in cashsecurities, securities or other property) in respect of, any of its Capital Stock; (B) split, combine or reclassify any of its Capital Stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for Capital Stock or any of its other securities; or (C) purchase, redeem or otherwise acquire any Capital Stock or any of its other securities or any rights, warrants or options to acquire any such Capital Stock or other securities; (5) not issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any Capital Stock, any other voting securities or issuing any securities convertible into or exchangeable for, or any rightsoptions, warrants or options rights to acquire, any such Capital Stock, voting securities purchase or convertible or exchangeable securities, other than any issuance of Common Stock on exercise of any compensatory stock options outstanding on the date of this Agreement; (6) not terminate, enter into, amend, modify (including by way of interpretation), renew or grant any waiver or consent under any employment, officer, consulting, severance, change in control or similar contract, agreement or arrangement with any director, officer, employee or consultant (other than, with respect to (i) a new chief financial officer and (ii) employees, in the ordinary course of business consistent with past practices) or make, grant or promise any bonus or any wage, salary or compensation increase to any director, officer, employee, sales representative or consultant (except in the case of non-officers and non-directors, amounts that do not exceed $50,000 per year per employee in the aggregate) or make, grant or promise any increase in any employee benefit plan or arrangementsubscribe to, or amend or terminate entering into any existing employee benefit plan or arrangement or adopt any new employee benefit plan or arrangement; (7) not terminate, enter into, establish, adopt, amend, modify (including by way of interpretation), make new grants or awards under, renew or grant any waiver or consent under any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract (other than with respect to group insurance and welfare employee benefits, in the ordinary course of business consistent with past practices), plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer, employee or consultant, amend the terms of any outstanding equity-based award, take any action to accelerate the vesting, exercisability or payment (or fund or secure the payment) of stock options, restricted stock, other equity awards or other compensation or benefits payable thereunder or add any new participants to any non-qualified retirement plans (or, with respect to any of the preceding, communicate any intention to take such action), other than Contract with respect to the salary issue and sale of, any interest in itself or any other securities, or making any other changes in its capital structure, (e) refrain from selling, leasing or otherwise disposing of any employee material asset or property, (andf) refrain from writing off as uncollectible any notes or accounts receivable, with respect (g) to such employeethe extent not included in clauses (a) through (f) above, only in the ordinary course of business consistent with past practices); (8) make any other change in employment terms for any of its directors, officers, employees and consultants outside the ordinary course of business or enter into any transaction with an Insider; (9) notwithstanding any other provision hereof, use all commercially reasonable efforts not to take, or omit to take, any action that is reasonably likely to result in refrain from taking any of the conditions precedent to either the First Closing or the Second Closing not being satisfiedactions described in Section 3.1.14 and (h) refrain from agreeing in writing, or any action that is reasonably likely otherwise, to materially impair the Company’s or any of the Company Subsidiaries’ ability to perform their obligations under the Transaction Documents or to consummate the transactions contemplated hereby, except as required by Law or the Transaction Documents; (10) not enter into any contract with respect to, or otherwise agree or commit to do, do any of the foregoing; and (11) not make or change any material Tax election. Promptly after execution of this Agreement, change Seller and the Corp[oration shall take all steps necessary to register in the State of Florida and such other states as Buyer my direct the tradename of MIRA Financial as a material annual accounting period, adopt or change any material accounting method with respect to Taxes, file any amended material Tax Return, enter into any material closing agreement, settle or compromise any proceeding with respect to any material Tax claim or assessment relating to the Company or any d/b/a/ of the Company Subsidiaries, surrender any right to claim a refund of material Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any material Tax Return or the payment of any material Tax.Corporation