Common use of Conduct of the Acquired Companies Clause in Contracts

Conduct of the Acquired Companies. From the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms (such period being hereinafter referred to as the “Interim Period”), Seller shall, and shall cause each Acquired Company to, conduct the Business in the ordinary course consistent with past practice and use commercially reasonable efforts to (i) preserve intact the present business organization of the Acquired Companies, (ii) maintain in effect all foreign, federal, state and local Permits of the Acquired Companies, (iii) keep available the services of officers and key employees of the Acquired Companies, and (iv) maintain satisfactory relationships with the customers and lenders of the Acquired Companies and others having material business relationships with them. Without limiting the generality of the foregoing, except (1) as set forth on Schedule 5.01, (2) as expressly permitted or contemplated by this Agreement or (3) pursuant to the written consent of Purchaser (such consent not to be unreasonably withheld or delayed), during the Interim Period, Seller shall cause each Acquired Company not to: (a) amend its Organizational Documents (whether by merger, consolidation or otherwise); (b) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any securities of any Acquired Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any securities of any Acquired Company; (c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any securities of any Acquired Company; (d) incur any capital expenditures or any obligations or liabilities in respect thereof, except for any budgeted capital expenditures and other unbudgeted capital expenditures not to exceed US$65,000 individually or $US200,000 in the aggregate; (e) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material assets, securities, properties, interests or businesses; (f) sell, lease, license, assign, convey, dispose of, encumber, or otherwise transfer, or create or incur any Lien (other than Permitted Liens) on, any of the assets, securities, properties, interests or businesses of the Acquired Companies, including any Intellectual Property Rights and Technology, other than sales and licenses of Company Products in the ordinary course of business consistent with past practice; (g) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice; (h) make any payments to any Related Person, except for intercompany payments to the Company or the Acquired Companies; (i) create, incur, assume, suffer to exist or otherwise be liable with respect to any Indebtedness in excess of $US2000,000, excluding Intercompany Indebtedness and Indebtedness that may be incurred from time to time under any Acquired Company’s existing loan agreements in the ordinary course of business; (j) enter into, amend or modify in any material respect or terminate any Material Contract or otherwise waive, release or assign any material rights, claims or benefits of any Acquired Company, other than in the ordinary course of business consistent with past practice (provided that, in the event such Material Contract provides for annual payments by or to an Acquired Company of £200,000 British pounds sterling or more, the Acquired Company shall be permitted to enter into, amend, or modify such Material Contract if Seller has given the Purchaser at least 5 days prior written notice of such action with respect to such Material Contract and the material terms thereof); (k) other than as required by Applicable Law: (i) grant or increase, or commit to grant or increase, any form of compensation or benefits payable to any director, officer, advisor, consultant, or employee of any Acquired Company, including pursuant to any Employee Plan, (ii) adopt, enter into, modify or terminate, or commit to adopt, enter into, modify or terminate, any Employee Plan, (iii) accelerate, or commit to accelerate, the vesting or payment of any compensation or benefits under any employee benefit plan, (iv) grant, or commit to grant, any equity or equity-linked awards or other bonus, commission or other incentive compensation to any director, officer, advisor, consultant or employee of any Acquired Company, or (v) hire, promote or terminate, or commit to hire, promote or terminate, any employee, officer, director or consultant of any Acquired Company or who otherwise provides services to the Acquired Companies in respect of the Business, other than, with respect to clauses (i) and (v) above, in the ordinary course of business consistent with past practice to any advisor, Worker, Consultant or Employee of any Acquired Company who receives less than $US60,000 in base compensation per annum; (l) fail to maintain, or allow to lapse, or abandon, including by failure to pay the required fees in any jurisdiction, any Intellectual Property Rights used in or otherwise material to the business of any Acquired Company, other than in the ordinary course consistent with past practice regarding Intellectual Property Rights that are not material to the conduct of the business of any Acquired Company; (m) take any action that could reasonably be expected to trigger the release of the source code or other proprietary software of any Acquired Company to any third party; (n) change any Acquired Company’s methods of accounting or accounting practices, except as required by concurrent changes as agreed to by its independent public accountants; (o) commence, settle, or offer or propose to settle, (i) any Proceeding involving or against any Acquired Company, (ii) any stockholder litigation or dispute against any Acquired Company or any of its officers or directors or (iii) any Proceeding that relates to the Transaction; (p) make or change any Tax election; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, pre-filing agreement, advance pricing agreement, cost sharing agreement or closing agreement relating to any Tax; file any federal or state income tax return or any other material Tax Return; amend any Tax Return; surrender or forfeit any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (q) form or acquire any Subsidiaries; or Without in any way limiting any party’s rights or obligations under this Agreement, the parties understand and agree that prior to Closing nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operation of the Acquired Companies, and prior to Closing, Seller and the Acquired Companies shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Business.

Conduct of the Acquired Companies. From Except as contemplated by this Agreement, during the period from the date of this Agreement until to the earlier of the Closing and the Date or termination of this Agreement, unless Purchaser shall otherwise consent, which consent shall not be unreasonably withheld, conditioned or delayed, the Company will conduct, and will cause each other Acquired Company to conduct, its operations in the Ordinary Course of Business, and the Company will use, and will cause each other Acquired Company to use, its commercially reasonable efforts to generally preserve intact the present business organization of the Acquired Companies and to keep available the services of its officers and key employees. In furtherance and not in limitation of this Section 5.1, except as contemplated by this Agreement, and except as may be required by Law or pursuant to the terms of any existing Contract, during the period from the date of this Agreement in accordance with its terms (such period being hereinafter referred to as the “Interim Period”)earlier of the Closing Date or termination of this Agreement, Seller unless Purchaser shall otherwise consent, which consent shall not be unreasonably withheld, conditioned or delayed, the Company shall, and shall cause each Acquired Company to, conduct the Business in the ordinary course consistent with past practice and use commercially reasonable efforts to (i) preserve intact the present business organization of the Acquired Companies, (ii) maintain in effect all foreign, federal, state and local Permits of the Acquired Companies, (iii) keep available the services of officers and key employees of the Acquired Companies, and (iv) maintain satisfactory relationships with the customers and lenders of the Acquired Companies and others having material business relationships with them. Without limiting the generality of the foregoing, except (1) as set forth on Schedule 5.01, (2) as expressly permitted or contemplated by this Agreement or (3) pursuant to the written consent of Purchaser (such consent not to be unreasonably withheld or delayed), during the Interim Period, Seller shall cause each Acquired Company not to: (a) amend its Organizational Documents (whether by merger, consolidation or otherwise); (b) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect preserve and maintain all material Permits of any securities of any Acquired Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any securities of any Acquired Company; (c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any securities of any Acquired Company; (d) incur any capital expenditures or any obligations or liabilities in respect thereof, except for any budgeted capital expenditures and other unbudgeted capital expenditures not to exceed US$65,000 individually or $US200,000 in the aggregate; (e) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material assets, securities, properties, interests or businesses; (f) sell, lease, license, assign, convey, dispose of, encumber, or otherwise transfer, or create or incur any Lien (other than Permitted Liens) on, any of the assets, securities, properties, interests or businesses of the Acquired Companies, including any Intellectual Property Rights and Technology, other than sales and licenses of Company Products in the ordinary course of business consistent with past practice; (g) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice; (h) make any payments to any Related Person, except for intercompany payments to the Company or the Acquired Companies; (ib) create, incur, assume, suffer to exist not cancel or otherwise be liable with respect to any Indebtedness in excess waive rights of $US2000,000, excluding Intercompany Indebtedness and Indebtedness that may be incurred from time to time under any substantial value of the Acquired Company’s existing loan agreements in the ordinary course of businessCompanies; (jc) enter intouse commercially reasonable efforts to maintain the material tangible properties or assets owned, amend operated or modify in any material respect or terminate any Material Contract or otherwise waive, release or assign any material rights, claims or benefits of any Acquired Company, other than used by it in the ordinary course same condition as they were on the date of business consistent with past practice (provided thatthis Agreement, in the event such Material Contract provides for annual payments by or subject to an Acquired Company of £200,000 British pounds sterling or more, the Acquired Company shall be permitted to enter into, amend, or modify such Material Contract if Seller has given the Purchaser at least 5 days prior written notice of such action with respect to such Material Contract reasonable wear and the material terms thereof)tear; (kd) other than as required by Applicable Law: (i) grant or increase, or commit to grant or increase, any form continue in full force and effect without modification all insurance policies of compensation or benefits payable to any director, officer, advisor, consultant, or employee of any Acquired Company, including pursuant to any Employee Plan, (ii) adopt, enter into, modify or terminate, or commit to adopt, enter into, modify or terminate, any Employee Plan, (iii) accelerate, or commit to accelerate, the vesting or payment of any compensation or benefits under any employee benefit plan, (iv) grant, or commit to grant, any equity or equity-linked awards or other bonus, commission or other incentive compensation to any director, officer, advisor, consultant or employee of any Acquired Company, or (v) hire, promote or terminate, or commit to hire, promote or terminate, any employee, officer, director or consultant of any Acquired Company or who otherwise provides services to the Acquired Companies in respect of the Business, other than, with respect to clauses (i) and (v) above, in the ordinary course of business consistent with past practice to any advisor, Worker, Consultant or Employee of any Acquired Company who receives less than $US60,000 in base compensation per annum; (l) fail to maintain, or allow to lapse, or abandon, including by failure to pay the required fees in any jurisdiction, any Intellectual Property Rights used in or otherwise material to the business of any Acquired Company, other than in the ordinary course consistent with past practice regarding Intellectual Property Rights that are not material to the conduct of the business of any Acquired Company; (m) take any action that could reasonably be expected to trigger the release of the source code or other proprietary software of any Acquired Company to any third party; (n) change any Acquired Company’s methods of accounting or accounting practicesCompanies, except as required by concurrent changes as agreed to by its independent public accountantsapplicable Law; (e) use commercially reasonable efforts to defend and protect its material properties and assets from infringement; (f) comply in all material respects with all applicable Laws; and (g) not, and shall cause the other Acquired Companies not to, do or cause to be done any of the matters referenced in Section 2.7(a) – (o) commence), settleexcluding Section 2.7(m), or offer terminate any key employee or propose to settle, (i) any Proceeding involving or against any Acquired Company, (ii) any stockholder litigation or dispute against group of employees of any Acquired Company or any of its officers or directors or (iii) any Proceeding that relates other than for cause. Notwithstanding anything to the Transaction; (p) make or change any Tax election; settle or compromise any claim, notice, audit report or assessment contrary contained in respect of Taxes; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, pre-filing agreement, advance pricing agreement, cost sharing agreement or closing agreement relating to any Tax; file any federal or state income tax return or any other material Tax Return; amend any Tax Return; surrender or forfeit any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (q) form or acquire any Subsidiaries; or Without in any way limiting any party’s rights or obligations under this Agreement, the parties understand and agree that prior to Closing nothing contained in this Agreement shall give PurchaserAcquired Companies may loan, directly distribute or indirectly, otherwise transfer cash or cash equivalents out of the right to control Acquired Companies or direct the operation of among the Acquired Companies, and prior provided that doing so does not violate any Contract to Closing, Seller and the which any Acquired Companies shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the BusinessCompany is a party or any Law to which any Acquired Company is subject.

Conduct of the Acquired Companies. From the date of this Agreement until the earlier of the Closing and or the termination of this Agreement in accordance with its terms (such period being hereinafter referred to as the “Interim Period”), Seller Sellers shall, and shall cause each Acquired Company to, conduct the their Business in the ordinary course consistent with past practice and use commercially reasonable efforts to (i) preserve intact the present business organization of the Acquired Companies, (ii) maintain in effect all foreign, federal, state and local Permits of the Acquired Companies, (iii) keep available the services of officers and key employees of the Acquired Companies, and (iv) maintain satisfactory relationships with the customers customers, lenders and lenders suppliers of the Acquired Companies and others having material business relationships with them. Without limiting the generality of the foregoing, except (1) as set forth on Schedule 5.01, (2) as expressly permitted or contemplated by this Agreement or (3) pursuant to the written consent of Purchaser (such consent not to be unreasonably withheld or delayed), during the Interim Period, Seller shall cause each Acquired Company not to: (a) amend its Organizational Documents (whether by merger, consolidation or otherwise); (b) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any securities of any Acquired Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any securities of any Acquired Company; (c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of or any equity securities of any Acquired Company; (d) incur any capital expenditures or any obligations or liabilities in respect thereof, except for any budgeted capital expenditures and other unbudgeted capital expenditures not to exceed US$65,000 $10,000 individually or $US200,000 50,000 in the aggregate; (e) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material assets, securities, properties, interests or businesses; (f) sell, lease, license, assign, convey, dispose of, encumber, or otherwise transfer, or create or incur any Lien (other than Permitted Liens) on, any of the assets, securities, properties, interests or businesses of the Acquired Companies, including any Intellectual Property Rights and Technology, other than sales and licenses of Company Products in the ordinary course of business consistent with past practice; (g) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice; (h) make any payments to any Related Person, except for intercompany payments to in the Company or the Acquired Companiesordinary course of business; (i) create, incur, assume, suffer to exist or otherwise be liable with respect to any Indebtedness in excess of $US2000,00010,000, excluding Intercompany Indebtedness and Indebtedness that may be incurred from time to time under any Acquired Company’s existing loan agreements in the ordinary course of business; (j) enter into, amend or modify in any material respect or terminate any Material Contract or otherwise waive, release or assign any material rights, claims or benefits of any Acquired Company, other than in the ordinary course of business consistent with past practice (provided that, in the event such Material Contract provides for annual payments by or to an Acquired Company of £200,000 British pounds sterling or more, the Acquired Company shall be permitted to enter into, amend, or modify such Material Contract if Seller has given the Purchaser at least 5 days prior written notice of such action with respect to such Material Contract and the material terms thereof)practice; (k) other than as required by Applicable Law: (i) grant or increase, or commit to grant or increase, any form of compensation or benefits payable to any member, director, officer, advisor, consultant, or employee of any Acquired Company, including pursuant to any Employee Planemployee benefit plan, (ii) adopt, enter into, modify or terminate, or commit to adopt, enter into, modify or terminate, any Employee Planemployee benefit plan, (iii) accelerate, or commit to accelerate, the vesting or payment of any compensation or benefits under any employee benefit plan, (iv) grant, or commit to grant, any equity or equity-linked awards or other bonus, commission or other incentive compensation to any member, director, officer, advisor, consultant or employee of any Acquired Company, or (v) hire, promote or terminate, or commit to hire, promote or terminate, any employee, officer, director or consultant of any Acquired Company or who otherwise provides services to the Acquired Companies in respect of the Business, other than, with respect to clauses (i) and (v) above, in the ordinary course of business consistent with past practice to any advisor, Worker, Consultant or Employee of any Acquired Company who receives less than $US60,000 in base compensation per annum; (l) fail to maintain, or allow to lapse, or abandon, including by failure to pay the required fees in any jurisdiction, any Intellectual Property Rights used in or otherwise material to the business of any Acquired Company, other than in the ordinary course consistent with past practice regarding Intellectual Property Rights that are not material to the conduct of the business of any Acquired Company; (m) sell any products or services outside the ordinary course of business consistent with past practice, including with respect to pricing, discounting practices, bundling, sales volume and services levels; (n) take any action that could reasonably be expected to trigger the release of the source code or other proprietary software of any Acquired Company to any third party; (no) change any Acquired Company’s methods of accounting or accounting practices, except as required by concurrent changes as agreed to by its independent public accountants; (op) commence, settle, or offer or propose to settle, (i) any Proceeding involving or against any Acquired CompanyCompany (other than any Proceeding involving a settlement of $50,000 or less as its sole remedy), (ii) any stockholder equity holder litigation or dispute against any Acquired Company or any of its members, officers or directors or (iii) any Proceeding that relates to the Transaction; (pq) make or change any Tax election; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, pre-filing agreement, advance pricing agreement, cost sharing agreement or closing agreement relating to any Tax; file any federal or state income tax return or any other material Tax Return; amend any Tax Return; surrender or forfeit any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (qr) form or acquire any Subsidiaries; or (s) agree, resolve or commit to do any of the foregoing. For the avoidance of doubt, prior to the Closing, Sellers shall be permitted to (i) cause each Acquired Company to dividend, distribute or otherwise pay to Sellers or any of their Affiliates any cash of such Acquired Company (each, a “Permitted Dividend”), (ii) remove, or cause any Acquired Company to remove, and pay to Sellers or any of their Affiliates any cash held in any bank account, (iii) settle Intercompany Indebtedness (including pursuant to the Permitted Dividends), or (iv) enter into Contracts in connection with any of the foregoing, (each, a “Permitted Activity”). Without in any way limiting any party’s rights or obligations under this Agreement, the parties understand and agree that prior to Closing nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operation of the Acquired Companies, and prior to Closing, Seller Sellers and the Acquired Companies shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Business.

Conduct of the Acquired Companies. From the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms (such period being hereinafter referred to as the “Interim Period”), Seller the Sellers shall, and shall cause each Acquired Company to, conduct the Business in the ordinary course consistent with past practice and use commercially reasonable efforts to (i) preserve intact the present business organization of the Acquired Companies, (ii) maintain in effect all foreign, federal, state and local Permits of the Acquired Companies, (iii) keep available the services of officers and key employees of the Acquired Companies, and (iv) maintain satisfactory relationships with the customers and lenders of the Acquired Companies and others having material business relationships with them. Without limiting the generality of the foregoing, except (1) as set forth on Schedule 5.01, (2) as expressly permitted or contemplated by this Agreement or (3) pursuant to the written consent of Purchaser (such consent not to be unreasonably withheld or delayed), during the Interim Period, Seller the Sellers shall cause each Acquired Company not to: (a) amend its Organizational Documents (whether by merger, consolidation or otherwise); (b) declare, set aside or pay any dividend or other distribution (whether in cash, stock shares or property or any combination thereof) in respect of any securities of any Acquired Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any securities of any Acquired Company; (c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any securities of any Acquired Company; (d) incur any capital expenditures or any obligations or liabilities in respect thereof, except for any budgeted capital expenditures and other unbudgeted capital expenditures not to exceed US$65,000 GBP£20,000 individually or $US200,000 GBP£100,000 in the aggregate, except for any capital expenditure incurred with Codewizards as previously agreed by the Purchaser in writing; (e) acquire (by merger, consolidation, acquisition of stock shares or assets or otherwise), directly or indirectly, any material assets, securities, properties, interests or businesses; (f) sell, lease, license, assign, convey, dispose of, encumber, or otherwise transfer, or create or incur any Lien (other than Permitted Liens) on, any of the assets, securities, properties, interests or businesses of the Acquired Companies, including any Intellectual Property Rights and Technology, other than sales and licenses of Company Products in the ordinary course of business consistent with past practice; (g) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice; (h) make any payments to any Related Person, except for intercompany payments to the Company or the Acquired Companies; (i) create, incur, assume, suffer to exist or otherwise be liable with respect to any Indebtedness in excess of $US2000,000GBP£150,000, excluding Intercompany Indebtedness and Indebtedness that may be incurred from time to time under any Acquired Company’s existing loan agreements in the ordinary course of businessIndebtedness; (j) enter into, amend or modify in any material respect or terminate any Material Contract or otherwise waive, release or assign any material rights, claims or benefits of any Acquired Company, other than in the ordinary course of business consistent with past practice (provided that, in the event such Material Contract provides for annual payments by or to an Acquired Company of £200,000 British pounds sterling GBP£100,000 or more, the Acquired Company shall be permitted to enter into, amend, or modify such Material Contract if Seller has the Sellers have given the Purchaser at least 5 days prior written notice of such action with respect to such Material Contract and the material terms thereof); (k) other than as required by Applicable Law: (i) grant or increase, or commit to grant or increase, any form of compensation or benefits payable to any director, officer, advisor, consultant, or employee of any Acquired Company, including pursuant to any Employee Plan, (ii) adopt, enter into, modify or terminate, or commit to adopt, enter into, modify or terminate, any Employee Plan, (iii) accelerate, or commit to accelerate, the vesting or payment of any compensation or benefits under any employee benefit plan, (iv) grant, or commit to grant, any equity or equity-linked awards or other bonus, commission or other incentive compensation to any director, officer, advisor, consultant or employee of any Acquired Company, or (v) hire, promote or terminate, or commit to hire, promote or terminate, any employee, officer, director or consultant of any Acquired Company or who otherwise provides services to the Acquired Companies in respect of the Business, other than, with respect to clauses (i) and (v) above, in the ordinary course of business consistent with past practice to any advisor, Worker, Consultant or Employee of any Acquired Company who receives less than $US60,000 GBP£40,000 in base compensation per annum; (l) fail to maintain, or allow to lapse, or abandon, including by failure to pay the required fees in any jurisdiction, any Intellectual Property Rights used in or otherwise material to the business of any Acquired Company, other than in the ordinary course consistent with past practice regarding Intellectual Property Rights that are not material to the conduct of the business of any Acquired Company; (m) take any action that could reasonably be expected to trigger the release of the source code or other proprietary software of any Acquired Company to any third party; (n) change any Acquired Company’s methods of accounting or accounting practices, except as required by concurrent changes as agreed to by its independent public accountants; (o) commence, settle, or offer or propose to settle, (i) any Proceeding involving or against any Acquired Company, (ii) any stockholder shareholder litigation or dispute against any Acquired Company or any of its officers or directors or (iii) any Proceeding that relates to the Transaction; (p) make or change any Tax election; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, pre-filing agreement, advance pricing agreement, cost sharing agreement or closing agreement relating to any Tax; file any federal or state income tax return or any other material Tax Return; amend any Tax Return; surrender or forfeit any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;; or (q) form or acquire any Subsidiaries; or . Without in any way limiting any party’s rights or obligations under this Agreement, the parties understand and agree that prior to the Closing Date nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operation of the Acquired Companies, and prior to Closingthe Closing Date, Seller the Sellers and the Acquired Companies shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Business.

Conduct of the Acquired Companies. (a) From the date of this Agreement hereof until the earlier of the Closing and the termination of this Agreement in accordance with its terms Date (such period being hereinafter referred to as period, the “Interim Pre-Closing Period”), Seller except as set forth in Section 5.01 of the Company Disclosure Schedule, as otherwise expressly required by this Agreement or any other Transaction Document, as required by Applicable Law or consented to by Parent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Thermo shall, and shall cause the Company, each Acquired Company of the Company’s Subsidiaries and Xxxxxxxxx LLC to, conduct its business in all material respects in the Business ordinary course of business consistent with past practice and use their commercially reasonable efforts to (1) preserve intact its present business organization, (1) maintain in effect all Permits, (1) keep available the services of its directors, officers and employees, (1) maintain satisfactory relationships with its customers, lenders, suppliers, lessors, providers of IRUs and others having material business relationships with it, (1) manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable) in the ordinary course of business consistent with past practice and consistent with the last sentence of this Section 5.01(a), and (1) continue to make capital expenditures in such a manner that is in all material respects in the ordinary course consistent with past practice and use commercially reasonable efforts to (i) preserve intact the present business organization of the Acquired Companies, (ii) maintain in effect all foreign, federal, state and local Permits of the Acquired Companies, (iii) keep available the services of officers and key employees of the Acquired Companies, and (iv) maintain satisfactory relationships with the customers and lenders of the Acquired Companies and others having material business relationships with thempractice. Without limiting the generality of the foregoing, the Company shall continue to collect and recognize all revenue in the ordinary course of business consistent with past practice, unless otherwise approved by Parent in its sole discretion. (b) Without limiting the generality of the foregoing, except (1) as set forth on Schedule 5.01in Section 5.01(b) of the Company Disclosure Schedule, (2) in connection with any amendment to, or waiver or approval pursuant to, the Company Credit Agreement that has been approved by Parent, such approval not to be withheld or delayed unreasonably, as otherwise expressly permitted or contemplated required by this Agreement or any other Transaction Document, as required by Applicable Law or consented to by Parent in writing (3) pursuant to the written which consent of Purchaser (such consent shall not to be unreasonably withheld withheld, conditioned or delayed), during the Interim Period, Seller Thermo shall not and shall cause each Acquired Company not tothe Company, the Company’s Subsidiaries and Xxxxxxxxx LLC to not: (ai) adopt or propose any change to, or amend or otherwise alter, its Organizational Governing Documents (whether by merger, consolidation or otherwise); (bii) split, combine or reclassify any equity interests, voting securities or other ownership interests of any Acquired Company or declare, set aside or pay any dividend or other distribution (whether in cash, stock equity or other property or any combination thereof) in respect of any securities of any Acquired CompanyThermo Securities, Company Securities, Subsidiary Securities or Xxxxxxxxx LLC Securities, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, repurchase or otherwise acquire any securities Thermo Securities; provided, however, the foregoing shall not limit the redemption, repurchase, acquisition or offer to redeem, repurchase or otherwise acquire any Company Securities or Xxxxxxxxx LLC Securities required, in each case in order for Thermo to be the sole holder of any Acquired Company;Company Securities and Xxxxxxxxx LLC Securities. (ciii) (iA) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares Thermo Securities, Company Securities, Subsidiary Securities or Xxxxxxxxx LLC Securities or (B) amend any term of any securities Thermo Security, Company Security, Subsidiary Security or any Xxxxxxxxx LLC Security (in each case, whether by merger, consolidation or otherwise); provided, however, the foregoing shall not limit the issuance, delivery, sale, or authorization for issuance, delivery or sale, of any Acquired CompanyThermo Securities in exchange for any of the Thermo Assets necessary to complete the Required Contributions; (div) incur any capital expenditures or any obligations or liabilities in respect thereof, except for any budgeted capital expenditures and other unbudgeted capital expenditures not to exceed US$65,000 individually or $US200,000 thereof in excess of fifteen percent (15%) above the aggregateamounts set forth on the budget attached as Section 5.01(b) of the Company Disclosure Schedules; (ev) acquire (by merger, consolidation, acquisition of stock equity or assets or otherwise), directly or indirectly, substantially all of the assets or equity of any other business or acquire any material assets, securities, properties, interests assets or businessesproperty other than in the ordinary course of business consistent with past practice and other than in connection with the Required Contributions; (fvi) sell, lease, license, assign, convey, grant an IRU or otherwise transfer or dispose of, encumber, or otherwise transferabandon or allow to lapse, or create or incur any Lien (other than Permitted Liens) on, any of the Acquired Company’s assets, securities, properties, interests or businesses of the Acquired Companies, including any Intellectual Property Rights and Technologybusinesses, other than sales and licenses of Company Products in the ordinary course of business consistent with past practice; (gvii) sell, lease, license or otherwise transfer, abandon or allow to lapse or create or incur any Lien (other than Permitted Liens) on, any of the Acquired Companies’ assets, securities, properties, interests or business, other than sales of inventory, sales or abandonment of obsolete equipment or leases or grants of IRUs in dark fiber, in each case, in the ordinary course of business consistent with past practice; (viii) sell, lease, license or otherwise transfer or dispose of, or abandon or permit to lapse, fail to take any action reasonably expected to be necessary to maintain, enforce or protect, or create or incur any Lien (other than Permitted Liens) on, any material Owned Intellectual Property Right or Licensed Intellectual Property Right; (ix) make any loans, advances or capital contributions to, or investments in, any other Person, Person other than contributions to wholly owned Acquired Companies in the ordinary course of business consistent with past practice; (h) make any payments to any Related Person, except for intercompany payments to the Company or the Acquired Companies; (ix) create, incur, assume, suffer to exist or otherwise be become liable with respect to any Indebtedness; provided, however, that the foregoing shall not apply to any Indebtedness outstanding on the date hereof, including pursuant to the Company Credit Agreement, or to any replacements or refundings thereof in a principal amount not exceeding the aggregate amount outstanding on the date hereof, or to any other additional Indebtedness in excess of an aggregate amount not to exceed $US2000,000, excluding Intercompany Indebtedness and Indebtedness that may be incurred from time to time under any Acquired Company’s existing loan agreements in the ordinary course of business5,000,000; (jxi) (A) enter into, or amend or modify in any material respect respect, or terminate terminate, any Material Contract or any agreement or arrangement that would be a Material Contract if such agreement or arrangement were in effect as of the date of this Agreement, or (B) otherwise waive, release or assign any material rights, claims or benefits of the Acquired Companies under any Acquired CompanyContract or otherwise, in each case, other than in the ordinary course of business consistent with past practice (practice, provided that, in the event such that any Material Contract provides for annual payments by or to an Acquired Company of £200,000 British pounds sterling any other such agreement or more, the Acquired Company shall be permitted to enter arrangement entered into, amendor any amendment or modification thereof, shall not contain any terms of the type described in Section 3.10(a)(xi), 10.%2.%3.%4, (xxi) or modify such Material Contract if Seller has given the Purchaser at least 5 days prior written notice of such action with respect to such Material Contract and the material terms thereof(xxii); (kxii) except to the extent they constitute Closing Payments, make any changes, arrangements or other than as required by Applicable Law: (i) grant or increaseContracts, or commit agree to grant or increasemake any changes, any form of compensation or benefits payable to any director, officer, advisor, consultant, or employee of any Acquired Company, including pursuant to any Employee Plan, (ii) adopt, enter into, modify or terminate, or commit to adopt, enter into, modify or terminate, any Employee Plan, (iii) accelerate, or commit to accelerate, the vesting or payment of any compensation or benefits under any employee benefit plan, (iv) grant, or commit to grant, any equity or equity-linked awards arrangements or other bonus, commission or other incentive compensation to any director, officer, advisor, consultant or employee of any Acquired Company, or (v) hire, promote or terminate, or commit to hire, promote or terminate, any employee, officer, director or consultant of any Acquired Company or who otherwise provides services to the Acquired Companies in respect of the Business, other thanContracts, with respect to clauses the retention, termination or compensation (iincluding, but not limited to, with respect to base compensation, bonuses, equity compensation, commissions, severance and other benefits) and (v) above, in of any Service Provider outside of the ordinary course of the Company’s business consistent or that are not consistent in all material respects with the Company’s past practice to any advisor, Worker, Consultant or Employee of any Acquired Company who receives less than $US60,000 in base compensation per annumpractices; (l) fail to maintain, or allow to lapse, or abandon, including by failure to pay the required fees in any jurisdiction, any Intellectual Property Rights used in or otherwise material to the business of any Acquired Company, other than in the ordinary course consistent with past practice regarding Intellectual Property Rights that are not material to the conduct of the business of any Acquired Company; (m) take any action that could reasonably be expected to trigger the release of the source code or other proprietary software of any Acquired Company to any third party; (nxiii) change any of the Acquired Company’s Companies’ methods of accounting or accounting practicesaccounting, except as required by concurrent changes in GAAP, as agreed to by its their independent public accountants; (oxiv) commence, settlesettle or compromise, or offer or propose to settlesettle or compromise, (i1) any Proceeding Action involving or against any of the Acquired Companies that is material to the Acquired Companies taken as a whole or would involve cash payment of more than $18,000,000 or (1) any Action that relates to the transactions contemplated hereby; (xv) other than as required by law or Contract or the terms of any Employee Plan (as in effect on the date hereof), as contemplated by this Agreement, or as constitute Closing Payments, (A) except for wage and salary increases for non-officer employees in the ordinary course of the Acquired Companies’ business, increase the compensation or benefits (including severance or termination benefits) of, or grant or enter into any new bonus, incentive, severance, or termination agreement or arrangement with, any Person (other than compensation or benefits increases, excluding severance or termination increases, for non-officer employees in the ordinary course of business), (B) take any action to accelerate the time of payment or vesting of any compensation or benefits of any Person, (C) establish, adopt, enter into, modify, amend or terminate any Employee Plan, other than amendments that do not result in materially increased administrative costs, (D) terminate the employment of any officer employees other than for cause (as reasonably determined by the Acquired Company consistent with past practice), (E) hire any individual whose annual compensation would be in excess of $200,000, other than to fill vacancies in the ordinary course of business or (F) approve of, or consent to, any action of any Affiliate of a Acquired Company that would require Parent’s consent pursuant to this Section 5.01(b)(xvi) if such action were taken by the Acquired Company, or agree to reimburse or make whole any such Affiliate for any such action; (iixvi) subject in all cases to the last sentence of Section 5.01(a), engage in (A) any stockholder litigation practice which would have the effect of accelerating to the Pre-Closing Period collections of receivables or dispute against revenue that, based on the ordinary course of business of the Company or its Subsidiaries, as applicable, prior to the date of this Agreement, would be expected to be made in post-Closing periods (including invoicing or other similar practices), or (B) any Acquired practice which would have the effect of postponing to post-Closing periods payments by the Company or any of the Subsidiaries that, based on the ordinary course of business of the Company or its officers or directors or (iii) any Proceeding that relates Subsidiaries, as applicable, prior to the Transactiondate of this Agreement, would be expected to be made in the Pre-Closing Period; (xvii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up the Acquired Companies’ business or operations, or adopt a plan with respect thereto, or fail to maintain the Acquired Companies’ existence; (pxviii) make or change any Tax election; , change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any material Tax Returns or file claims for material Tax refunds, enter any closing agreement, settle or compromise any material Tax claim, noticeaudit or assessment, audit report or assessment in respect of Taxes; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, pre-filing agreement, advance pricing agreement, cost sharing agreement or closing agreement relating to any Tax; file any federal or state income tax return or any other material Tax Return; amend any Tax Return; surrender or forfeit any right to claim a material Tax refund; , offset or other reduction in Tax liability consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (q) form assessment or, if it would have the effect of increasing the Tax liability or acquire reducing any Subsidiaries; or Without in Tax Asset of any way limiting any party’s rights or obligations under this Agreement, the parties understand and agree that prior to Closing nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operation of the Acquired Companies, and prior Parent or any Affiliate of Parent, or take any other action outside of the ordinary course of business; or (xix) agree, resolve or commit to Closing, Seller and do any of the Acquired Companies shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Businessforegoing.

Conduct of the Acquired Companies. From the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms (such period being hereinafter referred to as the “Interim Period”), Seller shall, and shall cause each Acquired Company to, conduct the Business in the ordinary course consistent with past practice and use commercially reasonable efforts to (i) preserve intact the present business organization of the Acquired Companies, (ii) maintain in effect all foreign, federal, state and local Permits of the Acquired Companies, (iii) keep available the services of officers and key employees of the Acquired Companies, and (iv) maintain satisfactory relationships with the customers customers, lenders and lenders suppliers of the Acquired Companies and others having material business relationships with them. Without limiting the generality of the foregoing, except (1) as set forth on Schedule 5.01, (2) as expressly permitted or contemplated by this Agreement or (3) pursuant to the written consent of Purchaser (such consent not to be unreasonably withheld or delayed), during the Interim Period, Seller shall cause each Acquired Company not to: (a) amend its Organizational Documents (whether by merger, consolidation or otherwise); (b) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any securities of any Acquired Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any securities of any Acquired Company; (c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any securities of any Acquired Company; (d) incur any capital expenditures or any obligations or liabilities in respect thereof, except for any budgeted capital expenditures and other unbudgeted capital expenditures not to exceed US$65,000 British pounds sterling individually or $US200,000 200,000 British pounds sterling in the aggregate; (e) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material assets, securities, properties, interests or businesses; (f) sell, lease, license, assign, convey, dispose of, encumber, or otherwise transfer, or create or incur any Lien (other than Permitted Liens) on, any of the assets, securities, properties, interests or businesses of the Acquired Companies, including any Intellectual Property Rights and Technology, other than sales and licenses of Company Products in the ordinary course of business consistent with past practice; (g) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice; (h) make any payments to any Related Person, except for intercompany payments to the Company or the Acquired Companiesits Subsidiaries; (i) create, incur, assume, suffer to exist or otherwise be liable with respect to any Indebtedness in excess of $US2000,000350,000 British pounds sterling, excluding Intercompany Indebtedness and Indebtedness that may be incurred from time to time under any Acquired Company’s existing loan agreements in the ordinary course of business; (j) enter into, amend or modify in any material respect or terminate any Material Contract or otherwise waive, release or assign any material rights, claims or benefits of any Acquired Company, other than in the ordinary course of business consistent with past practice (provided that, in the event such Material Contract provides for annual payments by or to an Acquired Company of £200,000 350,000 British pounds sterling or more, the Acquired Company shall be permitted to enter into, amend, or modify such Material Contract if Seller has given the Purchaser at least 5 days prior written notice of such action with respect to such Material Contract and the material terms thereof); (k) other than as required by Applicable Law: (i) grant or increase, or commit to grant or increase, any form of compensation or benefits payable to any director, officer, advisor, consultant, or employee of any Acquired Company, including pursuant to any Employee Plan, (ii) adopt, enter into, modify or terminate, or commit to adopt, enter into, modify or terminate, any Employee Plan, (iii) accelerate, or commit to accelerate, the vesting or payment of any compensation or benefits under any employee benefit plan, (iv) grant, or commit to grant, any equity or equity-linked awards or other bonus, commission or other incentive compensation to any director, officer, advisor, consultant or employee of any Acquired Company, or (v) hire, promote or terminate, or commit to hire, promote or terminate, any employee, officer, director or consultant of any Acquired Company or who otherwise provides services to the Acquired Companies in respect of the Business, other than, with respect to clauses (i) and (v) above, in the ordinary course of business consistent with past practice to any advisor, Worker, Consultant consultant or Employee employee of any Acquired Company who receives less than $US60,000 60,000 British pounds sterling in base compensation per annum; (l) fail to maintain, or allow to lapse, or abandon, including by failure to pay the required fees in any jurisdiction, any Intellectual Property Rights used in or otherwise material to the business of any Acquired Company, other than in the ordinary course consistent with past practice regarding Intellectual Property Rights that are not material to the conduct of the business of any Acquired Company; (m) sell any products or services outside the ordinary course of business consistent with past practice, including with respect to pricing, discounting practices, bundling, sales volume and services levels; (n) take any action that could reasonably be expected to trigger the release of the source code or other proprietary software of any Acquired Company to any third party; (no) change any Acquired Company’s methods of accounting or accounting practices, except as required by concurrent changes in UK GAAP, as agreed to by its independent public accountants; (op) commence, settle, or offer or propose to settle, (i) any Proceeding involving or against any Acquired CompanyCompany (other than any Proceeding involving a settlement of 30,000 British pounds sterling or less as its sole remedy), (ii) any stockholder litigation or dispute against any Acquired Company or any of its officers or directors or (iii) any Proceeding that relates to the Transaction; (pq) make or change any Tax election; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, pre-filing agreement, advance pricing agreement, cost sharing agreement or closing agreement relating to any Tax; file any federal or state income tax return or any other material Tax Return; amend any Tax Return; surrender or forfeit any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (qr) form or acquire any Subsidiaries; or (s) agree, resolve or commit to do any of the foregoing. For the avoidance of doubt, prior to the Closing, Seller shall be permitted to (A) (i) cause each Acquired Company to dividend, distribute or otherwise pay to Seller or any of its Affiliates any cash of such Acquired Company, (ii) remove, or cause any Acquired Company to remove, and pay to Seller or any of its Affiliates any cash held in any bank account, (iii) settle Intercompany Indebtedness (including pursuant to the Permitted Dividends), (iv) enter into Contracts in connection with any of the foregoing, (B) complete the dissolution of (i) Belix Power Conversion Ltd., a company incorporated under the laws of England, (ii) Belix Wound Components Ltd., a company incorporated under the laws of England, (iii) The Belix Company Ltd., a company incorporated under the laws of England, (iv) CXR Xxxxxxxx Xxxxxxxx Ltd., a company incorporated under the laws of England, and (v) Digitran Ltd., a company incorporated under the laws of England (each, a “Permitted Activity”), and (C) in the event the dissolution of CXR Xxxxxxxx Xxxxxxxx Ltd. is not completed prior to the Closing Date, transfer ownership of CXR Xxxxxxxx Xxxxxxxx Ltd. from Emrise Electronics Ltd. to CXR Xxxxxxxx Xxxxxxxx, a company incorporated under the laws of France and a wholly-owned Subsidiary of the Seller, provided that the representations and warranties of the Seller in Section 3.01(d) and 3.01(f) are true and accurate as of the date of such transfer; provided further, however, (y) the Seller shall use commercially reasonably effects to consult with the Purchaser with respect to the manner in which any such Permitted Activity shall be conducted and (z) any dividends payments made by or to an Acquired Company will be made in accordance with the UK Companies Act of 2006. Without in any way limiting any party’s rights or obligations under this Agreement, the parties understand and agree that prior to Closing nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operation of the Acquired Companies, and prior to Closing, Seller and the Acquired Companies shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Business.

Conduct of the Acquired Companies. From (i) Except (1) to the date of extent compelled or required by applicable law or HOA, (2) as otherwise permitted by this Agreement until Agreement, or (3) as consented to in writing by Buyer, during the earlier of period from Effective Date to the Closing and the termination of this Agreement in accordance with its terms (such period being hereinafter referred to as the “Interim Period”)Date, Seller shall, and shall cause each of the Acquired Companies to, and each Acquired Company toshall: (A) conduct its business and operations and operate, conduct manage and maintain the Business Parcels in all material respects in the ordinary course course, consistent with past practice and applicable law; (B) use commercially reasonable efforts to maintain its assets and properties consistent with past practice and applicable law; (iC) preserve intact perform, in all material respects, all of its obligations under the present business organization Leases and other agreements of the Acquired Companies; (D) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (E) maintain in full force and effect the insurance policies currently in effect with respect to the Parcels (or replacements continuing substantially similar coverage). (ii) maintain in effect all foreign, federal, state and local Permits of the Acquired Companies, (iii) keep available the services of officers and key employees of the Acquired Companies, and (iv) maintain satisfactory relationships with the customers and lenders of the Acquired Companies and others having material business relationships with them. Without limiting the generality of the foregoing, except (1) as set forth on Schedule 5.01to the extent compelled or required by applicable law or HOA, (2) as expressly otherwise permitted or contemplated by this Agreement Agreement, or (3) pursuant as consented to the written in writing by Buyer, which consent of Purchaser shall be in Buyer’s sole discretion (except if such actions are necessary or are in response to any emergency with respect to any Acquired Company or Parcel, then such consent shall not to be unreasonably withheld or delayedwithheld), during the Interim Periodperiod from Effective Date to the Closing Date, Seller shall cause each Acquired Company not to, and each Acquired Company shall not: (aA) modify or amend its Organizational Documents (whether by merger, consolidation or otherwise); (b) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any securities of any Acquired Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any securities the organizational documents of any Acquired Company; (c) (iB) issue, deliver or sell, or authorize the issuance, delivery or sale issuance of, any shares membership interest of any securities Acquired Company, or form a subsidiary of any an Acquired Company; (dC) incur or suffer to exist any capital expenditures or any obligations or liabilities in respect thereof, Indebtedness except for any budgeted capital expenditures and other unbudgeted capital expenditures not to exceed US$65,000 individually or $US200,000 in the aggregate; (e) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material assets, securities, properties, interests or businesses; (f) sell, lease, license, assign, convey, dispose of, encumber, or otherwise transfer, or create or incur any Lien (other than Permitted Liens) on, any of the assets, securities, properties, interests or businesses of the Acquired Companies, including any Intellectual Property Rights and Technology, other than sales and licenses of Company Products in the ordinary course of business consistent with past practice; (g) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice; (h) make any payments to any Related Person, except for intercompany payments to the Company or the Acquired Companies; (i) createexisting Indebtedness as of the Effective Date, incur, assume, suffer to exist or otherwise be liable with respect to any Indebtedness in excess of $US2000,000, excluding Intercompany Indebtedness and Indebtedness that may be (ii) trade payables incurred from time to time under any Acquired Company’s existing loan agreements in the ordinary course of business; (j) enter into, amend or modify in any material respect or terminate any Material Contract or otherwise waive, release or assign any material rights, claims or benefits of any Acquired Company, other than in the ordinary course of business consistent with past practice (provided that, in the event such Material Contract provides for annual payments by or that are subject to an Acquired Company of £200,000 British pounds sterling or more, the Acquired Company shall be permitted adjustments pursuant to enter into, amend, or modify such Material Contract if Seller has given the Purchaser at least 5 days prior written notice of such action with respect to such Material Contract and the material terms thereof)Section 7; (kD) other than as required by Applicable Law: (i) grant enter into new contracts or increaseagreements relating to the construction, management, service, utility operation, maintenance, repair or improvement of the Property, or commit to grant otherwise imposing obligations on or increase, any form of compensation affecting the Property or benefits payable to any director, officer, advisor, consultant, or employee of any Acquired Company, including pursuant management agreements, easement agreements, brokerage agreements for the leasing of the Property, equipment leases, maintenance agreements, warranties, Management Agreements (hereinafter defined) and other contracts and parking agreements (each, a “Contract”), other than (i) as necessary to any Employee Planconduct its business and operations and operate, manage and maintain the Parcels in all material respects in the ordinary course, consistent with past practice and applicable law, (ii) adoptContracts that are terminated at Closing at no cost to Buyer, and (iii) Leases; (E) other than Leases, encumber, sell or transfer all or any portion of the Real Property or any interest therein or otherwise dispose of the Real Property or any part thereof or interest therein, or alter or amend the zoning classification of the Real Property; (F) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of any of the Acquired Companies; (G) hire any employees; (H) enter into, modify or terminatemodify, amend, or commit to adoptterminate any collective bargaining or similar Contract with any union, enter into, modify or terminate, any Employee Plan, (iii) accelerateworks council, or commit labor organization; (I) file or cause to accelerate, the vesting or payment of be filed any compensation or benefits under any employee benefit plan, (iv) grant, or commit to grant, any equity or equity-linked awards or other bonus, commission or other incentive compensation to any director, officer, advisor, consultant or employee of any Acquired Company, or (v) hire, promote or terminate, or commit to hire, promote or terminate, any employee, officer, director or consultant of any Acquired Company or who otherwise provides services Tax Return with respect to the Acquired Companies in respect of the Business, other than, with respect to clauses (i) and (v) above, in the ordinary course of business consistent with past practice to any advisor, Worker, Consultant or Employee of any Acquired Company who receives less than $US60,000 in base compensation per annum; (l) fail to maintain, or allow to lapse, or abandon, including by failure to pay the required fees in any jurisdiction, any Intellectual Property Rights used in or otherwise material to the business of any Acquired Company, other than in the ordinary course consistent accordance with past practice regarding Intellectual Property Rights that are not material to the conduct of the business of practice, amend any Acquired Company; (m) take Tax Return, enter into any action that could reasonably be expected to trigger the release of the source code or other proprietary software of any Acquired Company to any third party; (n) change any Acquired Company’s methods of accounting or accounting practicesclosing agreement, except as required by concurrent changes as agreed to by its independent public accountants; (o) commence, settle, or offer or propose to settle, (i) any Proceeding involving or against any Acquired Company, (ii) any stockholder litigation or dispute against any Acquired Company or any of its officers or directors or (iii) any Proceeding that relates to the Transaction; (p) make or change any Tax election; , change any Tax method of accounting, or agree to extend the statute of limitations in respect of any Taxes; (J) settle or compromise any claimpending or threatened Litigation which is not paid by insurance and which settlement is in excess of $20,000; (K) amend, noticesupplement, audit report or assessment in respect of Taxes; enter into modify (other than paying off any Tax allocation agreementIndebtedness and causing such Indebtedness and any liens relating thereto to be terminated) any documents, Tax sharing agreementagreements or instruments evidencing, Tax indemnity agreementsecuring, pre-filing agreement, advance pricing agreement, cost sharing agreement guaranteeing or closing agreement relating otherwise pertaining to any Tax; file any federal or state income tax return Indebtedness or any other material Tax Returnprovision thereof or take any action which would cause a breach or default thereof; amend any Tax Return; surrender or forfeit any right to claim a Tax refund; or (L) authorize, agree, resolve or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (q) form or acquire any Subsidiaries; or Without in any way limiting any party’s rights or obligations under this Agreement, the parties understand and agree that prior to Closing nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operation of the Acquired Companies, and prior to Closing, Seller and the Acquired Companies shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Businessforegoing.

Conduct of the Acquired Companies. (a) From the date hereof until the Closing Date, except as set forth in Section 6.01 of the Company Disclosure Schedule, as otherwise expressly contemplated by this Agreement until the earlier of the Closing and the termination of this Agreement or any Transaction Document, as required by Applicable Law or consented to by Merger Sub in accordance with its terms writing (such period being hereinafter referred to as the “Interim Period”which consent shall not be unreasonably withheld or delayed), Seller shall, the Company shall and shall cause each Acquired Company to, its Subsidiaries to conduct the Business its business in the ordinary course consistent with past practice and use their commercially reasonable efforts to (i) preserve intact the its present business organization of the Acquired Companiesorganization, (ii) maintain in effect all foreign, federal, state and local Permits of the Acquired CompaniesPermits, (iii) keep available the services of its directors, officers and key employees employees, including by paying performance bonuses for the 2015 calendar year in the ordinary course in accordance with the past practice of the Acquired Companies, and (iv) maintain satisfactory relationships with the customers and lenders its customers, lenders, suppliers, lessors, providers of the Acquired Companies IRUs and others having material business relationships with them. it, (v) manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice, and (vi) continue to make capital expenditures consistent with the Capex Budget. (b) Without limiting the generality of the foregoing, except (1) as set forth on Schedule 5.01in Section 6.01 of the Company Disclosure Schedule, (2) as otherwise expressly permitted or contemplated by this Agreement or any Transaction Document, as required by Applicable Law or consented to by Merger Sub in writing (3) pursuant to the written which consent of Purchaser (such consent shall not to be unreasonably withheld or delayed), during the Interim Period, Seller Company shall and shall cause each Acquired Company its Subsidiaries not to: (ai) amend its Organizational Documents (whether by mergeradopt or propose any change in the certificate of formation or equivalent organizational document of any of the Acquired Companies or the Operating Agreement, consolidation bylaws or otherwise)similar organizational documents of any of the Acquired Companies; (bii) split, combine or reclassify any ownership interests of the Acquired Companies or declare, set aside or pay any non-cash dividend or other non-cash distribution (whether in cashstock, stock ownership interests or property or any combination thereof) in respect of the equity of the Acquired Companies (other than any securities of such dividend or distribution to any other wholly owned Acquired Company), or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any securities of Company Securities or any Acquired CompanySubsidiary Securities; (ciii) (iA) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company Securities or Subsidiary Securities (other than any issuance or sale of such securities to any other wholly owned Acquired Company) or (B) amend any term of any Acquired CompanyCompany Security or any Subsidiary Security (in each case, whether by merger, consolidation or otherwise); (div) incur any capital expenditures or any obligations or liabilities in respect thereof, except for (A) those contemplated by the Capex Budget and (B) any budgeted capital expenditures and other unbudgeted capital expenditures not to exceed US$65,000 $260,000 individually or $US200,000 2,600,000 in the aggregate; (eA) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material assets, securitiesproperties or businesses that exceed $25,000 individually or $100,000 in the aggregate, propertiesother than construction materials, interests supplies and equipment in the ordinary course of business of the Acquired Companies in a manner that is consistent with past practice or businesses(B) acquire any real property; (fvi) sell, lease, license, assign, convey, dispose of, encumber, lease or otherwise transfer, abandon or allow to lapse or create or incur any Lien (other than Permitted Liens) on, any of the Acquired Company’s assets, securities, properties, interests or businesses of the Acquired Companies, including any Intellectual Property Rights and Technologybusinesses, other than sales and licenses of Company Products inventory, sales or abandonment of obsolete equipment or leases or grants of IRUs in dark fiber, in each case, in the ordinary course of business consistent with past practice; (gvii) sell, lease, license or otherwise transfer or dispose of, abandon or permit to lapse, fail to take any action reasonably expected to be necessary to maintain, enforce or protect, or create or incur any Lien (other than Permitted Liens) on, any material Owned Intellectual Property Right; (viii) make any loans, advances or capital contributions to, or investments in, any other Person, Person other than in other wholly owned Acquired Companies and advances to employees in the ordinary course of business consistent with past practice; (h) make any payments to any Related Person, except for intercompany payments to the Company or the Acquired Companies; (iix) create, incur, assume, suffer to exist or otherwise be become liable with respect to any Indebtedness in excess other than Purchase Price Deduction Indebtedness of up to $US2000,000, excluding Intercompany Indebtedness and Indebtedness that may be incurred from time to time under any Acquired Company’s existing loan agreements 10,000,000 in the ordinary course of businessaggregate; (jx) enter into, or amend or modify in any material respect respect, or terminate any Material Contract or any agreement or arrangement that would be a Material Contract if such agreement or arrangement were in effect as of the date of this Agreement or (ii) otherwise waive, release or assign any material rights, claims or benefits of the Acquired Companies under any Acquired Companysuch contract or arrangement, in each case, other than in the ordinary course of business consistent with past practice (practice; provided that, in the event such that any Material Contract provides for annual payments by or to an Acquired Company of £200,000 British pounds sterling any other such agreement or more, the Acquired Company shall be permitted to enter arrangement entered into, amendor any amendment or modification thereof, or modify such Material Contract if Seller has given shall not contain any terms of the Purchaser at least 5 days prior written notice of such action with respect to such Material Contract and the material terms thereoftype described in Section 4.10(a)(xi); (kxi) other than except as required by Applicable Law: Law or the terms of any Employee Plan as in effect on the date hereof (iA) grant or increaseincrease any severance, retention or termination pay to, or commit to grant enter into or increaseamend any severance, retention, termination, employment, consulting, bonus, deferred compensation, change in control or severance agreement with, any form current or former Service Provider or increase benefits payable under any existing severance or termination pay policies or employment or consulting agreements; other than payments of compensation severance or benefits termination payable to any director, officer, advisor, consultant, or employee below the level of vice president in connection with the termination of such employee’s employment for any Acquired Company, including reason other than for cause (as determined by the Company in its reasonable discretion); provided that (1) such severance shall not exceed three months of such employee’s then-current base salary furnished pursuant to Section 4.20 and (2) shall be paid prior to the Closing Date and the Company shall obtain from any Employee Plansuch employee a release of claims prior to making such payment; (B) establish, (ii) adopt, enter into, modify into or terminate, or commit to adopt, enter into, modify or terminate, amend any Employee Plan, (iii) accelerate, Plan or commit to accelerate, the vesting or payment of any compensation or benefits under any employee benefit plan, (iv) grant, or commit to grant, any equity or equity-linked awards or other bonus, commission or other incentive compensation to any director, officer, advisor, consultant or employee of any Acquired Company, or (v) hire, promote or terminate, or commit to hire, promote or terminate, any employee, officer, director or consultant of any Acquired Company or who otherwise provides services to the Acquired Companies in respect of the Business, other than, with respect to clauses (i) and (v) above, in the ordinary course of business consistent with past practice to any advisor, Worker, Consultant or Employee of any Acquired Company who receives less than $US60,000 in base compensation per annum; (l) fail to maintain, or allow to lapse, or abandon, including by failure to pay the required fees in any jurisdiction, any Intellectual Property Rights used in or otherwise material to the business of any Acquired CompanyCollective Bargaining Agreement, other than routine amendments to health and welfare plans relating to open enrollments that do not result in materially increased administrative costs; (C) increase the compensation, bonus or other benefits payable or provided to any current or former Service Provider, other than to increase salary or wages for employees who are not officers by not more than 3.0% in the aggregate and by not more than 5.0% per employee in the ordinary course consistent with past practice and the Company’s 2016 annual budget; provided that Parent will be consulted regarding Intellectual Property Rights that are not material any such increase before such increase is communicated to such Service Provider; (D) (x) hire any employees other than to fill vacancies arising due to terminations of employment of employees (1) with annual salaries less than $65,000 or (2) to the conduct extent set forth on the 2016 Budget-Open Headcount Schedule provided to Parent by the Company as of the business date hereof; provided that Parent will be consulted regarding any such hires prior to an offer being extended or (y) terminate the employment of any Acquired Companyemployee with annual salary in excess of $65,000 (other than for cause or for performance reasons); or (E) grant any equity or equity-based awards to, or discretionarily accelerate the vesting or payment of any such awards held by, any current or former Service Provider; (m) take any action that could reasonably be expected to trigger the release of the source code or other proprietary software of any Acquired Company to any third party; (nxii) change any of the Acquired Company’s Companies’ methods of accounting or accounting practicesaccounting, except as required by concurrent changes in GAAP, as agreed to by its their independent public accountants; (oxiii) commence, settle, or offer or propose to settle, (iA) any Proceeding litigation, investigation, arbitration, proceeding or other claim involving or against any of the Acquired CompanyCompanies that is material to the Acquired Companies, taken as a whole, or would involve cash payments of over $100,000, or (iiB) any stockholder litigation litigation, arbitration, proceeding or dispute against any Acquired Company or any of its officers or directors or (iii) any Proceeding that relates to the Transactiontransactions contemplated hereby; (pxiv) make or change any Tax election; , change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any material Tax Returns or file claims for material Tax refunds, enter any closing agreement, settle or compromise any material Tax claim, noticeaudit or assessment, audit report or assessment in respect of Taxes; enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, pre-filing agreement, advance pricing agreement, cost sharing agreement or closing agreement relating to any Tax; file any federal or state income tax return or any other material Tax Return; amend any Tax Return; surrender or forfeit any right to claim a material Tax refund; , offset or other reduction in Tax liability consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (q) form assessment or, if it would have the effect of increasing the Tax liability or acquire reducing any Subsidiaries; or Without in Tax Asset of any way limiting any party’s rights or obligations under this Agreement, the parties understand and agree that prior to Closing nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the operation of the Acquired Companies, and prior Parent or any Affiliate of Parent, take any other action outside of the ordinary course of business; or (xv) agree, resolve or commit to Closing, Seller and do any of the Acquired Companies shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Businessforegoing.