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

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement, each of Canterbury and Hygeia shall: (i) conduct its businesses only in the Ordinary Course of Business; (ii) use commercially reasonable efforts to: (A) preserve its present business operations, organization, material rights, franchises, Intellectual Property Rights and goodwill and (B) preserve its present relationship with Persons having material business dealings with such party; (iii) use its commercially reasonable efforts to maintain: (A) all material assets and properties of such party in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of such party in such amounts, of such kinds and with such carriers as are substantially similar to that in effect on the date of this Agreement; (iv) maintain its books, accounts and records in accordance with generally accepted accounting principles; (v) give all required notices of the transactions contemplated by this Agreement and use its commercially reasonable efforts to obtain all third party consents material to such party’s business that are necessary or advisable in order to consummate the transactions contemplated by this Agreement; (vi) not take any action which would reasonably be expected to adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; and (vii) promptly notify Stratus in writing if, prior to the consummation of the Closing, to their Knowledge: (a) any of the representations and warranties contained herein applicable to Canterbury or Hygeia are not accurate and complete in all material respects or (b) Canterbury or Hygeia fails to comply with or satisfy any material covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 8.6 shall not limit or otherwise affect the remedies available hereunder to Stratus.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement, each of Canterbury and Hygeia VasculoMedics shall, given the current financial constraints: (i) conduct its businesses business only in the Ordinary Course of Business; (ii) use commercially reasonable efforts to: (A) preserve its present business operations, organization, material rights, franchises, Intellectual Property Rights and goodwill and (B) preserve preserve, to the extent feasible, its present relationship with Persons having material business dealings with such party; (iii) use its commercially reasonable efforts to maintain: (A) all material assets and properties of such party in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of such party in such amounts, of such kinds and with such carriers as are substantially similar to that in effect on the date of this Agreement; (iv) maintain its books, accounts and records in accordance with generally accepted accounting principles; (v) give all required notices of the transactions contemplated by this Agreement and use its commercially reasonable efforts to obtain all third party consents material to such party’s business that are necessary or advisable in order to consummate the transactions contemplated by this Agreement; (vi) not take any action which would reasonably be expected to adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; and (vii) promptly notify Stratus in writing if, prior to the consummation of the Closing, to their its Knowledge: (a) any of the representations and warranties contained herein applicable to Canterbury or Hygeia VasculoMedics are not accurate and complete in all material respects or (b) Canterbury or Hygeia VasculoMedics fails to comply with or satisfy any material covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 8.6 7.5 shall not limit or otherwise affect the remedies available hereunder to Stratus.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this AgreementAgreement or with the prior written consent of Parent, during the period from the date of this Agreement to the Closing, the Company shall (and the Company shall cause each of Canterbury and Hygeia shall:Person in the Company Group to): (i) conduct its businesses only in the Ordinary Course of Business; (ii) use commercially reasonable efforts to: to (A) preserve its present business operations, organization, material rights, franchises, Intellectual Property Rights and goodwill and (B) preserve its present relationship with Persons having material business dealings relationships with such partythe Company and the Company Subsidiaries, including but not limited to, customers, suppliers, contractors, distributors and employees; (iii) use its commercially reasonable efforts to maintain: maintain (A) all material assets and properties of such party the Company and the Company Subsidiaries in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of such party the Company and the Company Subsidiaries in such amounts, of such kinds and with such carriers as are substantially similar to that in effect on the date of this Agreement; (iv) maintain its books, accounts and records in accordance with generally accepted accounting principlesGAAP; (v) give make all required notices of the transactions contemplated by this Agreement and use its commercially reasonable efforts to obtain all third party consents material to such party’s business that are necessary or advisable in order to consummate the transactions contemplated by this Agreement; (vi) not take any action which would reasonably be expected to adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; and (vii) promptly notify Stratus Parent in writing if, prior to the consummation of the Closing, to their Knowledge: Closing (aA) any of the representations and warranties contained herein applicable in Article V cease to Canterbury or Hygeia are not be accurate and complete in all material respects or (bB) Canterbury or Hygeia the Company fails to comply with or satisfy any material covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 8.6 7.1(a)(vi) shall not limit or otherwise affect the remedies available hereunder to StratusParent; and (vii) (A) terminate any Company plan that is intended to be qualified under Section 401(a) of the Code, such plan termination to become effective the day before Closing, and (B) amend the Management Change in Control Plan, as mutually agreed by the Company and Parent and terminate such plan effective as of the Closing, provided that such termination shall not be deemed to affect the payment of the Management Incentive Plan Payments triggered by the Merger, as contemplated by this Agreement and the Aggregate Consideration Spreadsheet. (b) Except as otherwise expressly provided in this Agreement or with the prior written consent of Parent, during the period from the date of this Agreement to the Closing, the Company shall not, and the Company shall cause each Person in the Company Group not to: (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of the Company Subsidiaries; (ii) take any action which would reasonably be expected to adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (iii) transfer, pledge, encumber, issue, sell or dispose of any shares of capital stock or other securities of the Company or any of the Company Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of the Company Subsidiaries; (iv) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company or any of the Company Subsidiaries; (v) amend the Charter Documents of the Company or any of the Company Subsidiaries; (vi) except in the Ordinary Course of Business with respect to employees, (A) increase the annual level of compensation of any employee of the Company or any of the Company Subsidiaries, (B) increase the annual level of compensation payable or to become payable by the Company or any of the Company Subsidiaries to any of their respective officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, officer, director or consultant, (D) increase the coverage or benefits available under any (or create any new) or, except as explicitly permitted in this Agreement, accelerate the time of payment or vesting of any, severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Company or any of the Company Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which the Company or any of the Company Subsidiaries is a party or involving a current or former director, officer or employee of the Company or any of the Company Subsidiaries; (vii) incur or assume any Indebtedness except in the Ordinary Course of Business; (viii) subject to any Lien or otherwise encumber or permit, allow or suffer to be encumbered, any of the properties or assets (whether tangible or intangible), or any shares of capital stock of the Company or any of the Company Subsidiaries; (ix) acquire, purchase, license or lease any properties or assets of any Person or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of the Company and the Company Subsidiaries, including Intellectual Property; (x) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not invest in, make a loan, material advance or capital contribution to, or otherwise acquire the securities or assets of any other Person; (xi) cancel or compromise any material debt or claim or waive or release any material right of the Company or any of the Company Subsidiaries; (xii) enter into any commitment for capital expenditures of the Company and its Subsidiaries in excess of $25,000 for any individual commitment and $100,000 for all commitments in the aggregate; (xiii) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any Company Subsidiary or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company or any Company Subsidiary; (xiv) enter into any transaction or enter into, modify or renew any Contract with a distributor or which would be a Material Contract if entered into prior to the date hereof or that would reasonably be expected to have a Company Material Adverse Effect; (xv) except for transfers of cash pursuant to normal cash management practices in the Ordinary Course of Business, make any investments in or loans to, or pay any fees or expenses or make other payments to (other than pursuant to and in accordance with existing Contracts), or enter into or materially modify any Contract with any Affiliate of the Company or any of the Company Subsidiaries, or any director, officer or employee of the Company or any of the Company Subsidiaries; (xvi) make or revoke any material election in respect of Taxes, change any accounting method in respect of material Taxes, prepare any Tax Return in a manner which is not consistent with past practice with respect to the treatment of items on such Tax Return, file any amendment to a Tax Return that will or may more than immaterially increase the liability of the Company or any Company Subsidiary after the Closing, incur any liability for Taxes other than in the Ordinary Course of Business, settle any material claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any material claim or assessment in respect of Taxes or surrender any right to claim a refund of Taxes or obtain or enter into any Tax ruling or agreement with any Taxing Authority; (xvii) enter into any Contract or understanding that restrains, restricts, limits or impedes the ability of the Company or any Company Subsidiary to compete with or conduct any business or line of business in any geographic area or enter into, modify, amend, or terminate any Contract; (xviii) except in the Ordinary Course of Business, terminate, amend, restate, supplement or waive any rights under any Material Contract; \ (xix) terminate, amend, restate, supplement or waive any rights under any material Permit; and (xx) agree to do or commit to do any of the foregoing prohibited by this Sections 7.1(b). (c) From the date of this Agreement until the earlier to occur of the Effective Time or the termination of this Agreement in accordance with the terms of this Agreement, the Company and Parent shall not, and shall not permit any of their respective Subsidiaries to, take, or agree or commit to take, any action that would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the consummation of the Merger or the other transactions contemplated by this Agreement and the Transaction Documents.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by provided in this AgreementAgreement or with the prior written consent of Parent, each during the period from the date of Canterbury this Agreement to the Effective Time, as applicable, the Company, Columbia Blocker and Hygeia TKH Blocker shall, and the Company shall cause the Company Subsidiaries to do the following: (i) conduct its their respective businesses only in the Ordinary Course of Business; (ii) use their respective commercially reasonable efforts to: to (A) preserve its their respective present business businesses, operations, organization, material rights, franchises, Intellectual Property Rights organizations and goodwill and (B) preserve its present relationship relationships with Persons having with whom they have material business dealings with such partydealings; (iii) use its their respective commercially reasonable efforts to maintain: maintain (A) all of their respective material assets and properties of such party in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the their respective properties and assets of such party in such amounts, amounts and of such kinds and with such carriers as are substantially similar comparable to that in effect on the date of this Agreement; (iv) maintain its bookscomply in all material respects with all applicable Laws, accounts including all laws and records in accordance with generally accepted accounting principlesFCC Rules relating to the WCS Spectrum Licenses or their use; (v) maintain in full force and effect the WCS Spectrum Licenses; (vi) in the case of the Company and the Company Subsidiaries, maintain the WCS Spectrum Licenses, in substantially the same condition as of the date hereof, and shall not take any action out of the Ordinary Course of Business with respect to the WCS Spectrum Licenses; (vii) give all required notices of the transactions contemplated by this Agreement and and, following the termination of the XM Agreement, use its commercially reasonable efforts Best Efforts to obtain all third party consents material to such partythe Company’s business that are necessary or advisable in order to consummate the transactions contemplated by this Agreement; (viviii) promptly provide Parent with true and correct copies of all material information and documents in the Company’s or its attorneys’ or its agents’ possession, or that is obtained during the relevant time period, that relates to the WCS Spectrum Licenses, including communications sent to or received by the FCC, XM Satellite Radio Holdings Inc. or Sirius Satellite Radio Inc.; provided, that none of the Company, Columbia Blocker or TKH Blocker shall have any obligation hereunder to provide any information or documents that are publicly available or, if to do so, would effectively waive any attorney-client privilege of any of the Selling Parties with respect thereto or violate any of the Selling Parties’ obligations under the XM Agreement; (ix) promptly provide Parent with true and correct copies of all written communications sent to or received by the FCC with regard to the transactions contemplated hereby (it being understood that none of the Company, Columbia Blocker or TKH Blocker shall have any obligation to provide any such communications that relate to the XM Agreement or the transactions contemplated thereby); (x) promptly provide Parent with notice of any Legal Proceeding threatened or initiated against any Selling Party by a third party relating to the consummation of the transactions contemplated by this Agreement, which notice shall set forth in reasonable detail the nature and basis of the claims asserted in such Legal Proceeding; and (xi) not take any action which would reasonably be expected to adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; and (vii) promptly notify Stratus in writing if, prior to the consummation of the Closing, to their Knowledge: (a) any of the representations and warranties contained herein applicable to Canterbury or Hygeia are not accurate and complete in all material respects or (b) Canterbury or Hygeia fails to comply with or satisfy any material covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that none of the delivery Company, Columbia Blocker or TKH Blocker shall be prohibited from fulfilling any of their obligations under the XM Agreement, including, any obligation to consummate the transactions contemplated thereby in lieu of consummating the Acquisitions as contemplated by this Agreement. (b) Except as otherwise expressly provided in this Agreement or with the prior written consent of Parent, during the period from the date of this Agreement to the Effective Time, none of the Company, Columbia Blocker or TKH Blocker shall, and the Company shall not permit either Company Subsidiary to do any of the following: (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries, except the Company, Columbia Blocker and TKH Blocker may distribute any cash held by them to their respective stockholders at any time prior to the Closing Date; (ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company, the Company Subsidiaries, Columbia Blocker or TKH Blocker, or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of any such Persons, provided that (x) the Company may prior to the Effective Time accept capital contributions from or issue additional shares of Common Stock or Preferred Stock to Columbia Blocker, TKH Blocker and Persons who are Company Stockholders as of the date hereof, the proceeds of which are used for the working capital needs of the Company and the Company Subsidiaries and (y) each of Columbia Blocker and TKH Blocker may prior to the Effective Time accept capital contributions from or issue additional shares of capital stock to, respectively, the Columbia Seller and the TKH Sellers, the proceeds of which are used for the working capital needs of, respectively, Columbia Blocker and TKH Blocker, including their further investment in the Company; (iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company, the Company Subsidiaries, Columbia Blocker or TKH Blocker; (iv) amend the Organizational Documents of the Company, the Company Subsidiaries, Columbia Blocker or TKH Blocker; (v) hire any employee or consultant not terminable at will without penalty on or before the Closing Date, or increase the level of compensation payable or to become payable to any of their respective consultants; (vi) incur or assume any Indebtedness, provided that, upon prior written notice to Parent, the Company and the Company Subsidiaries may prior to the Effective Time, incur Indebtedness to Columbia Blocker, TKH Blocker and Persons who are Sellers as of the date hereof, the proceeds of which are used for the working capital needs of the Company and the Company Subsidiaries; (vii) other than with respect to the WCS Spectrum Licenses (for which clause (ix) below is applicable), subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be encumbered, any of the properties or assets (whether tangible or intangible), or any shares of capital stock of the Company, the Company Subsidiaries, Columbia Blocker or TKH Blocker; (viii) acquire any material properties or assets or, other than with respect to the WCS Spectrum Licenses (for which clause (ix) below is applicable), sell, assign, license, transfer, convey, lease or otherwise dispose of any other of their respective material properties or assets or those of either Company Subsidiary; (ix) other than in connection herewith or pursuant to the transactions contemplated by the XM Agreement, (A) sell, transfer, assign, lease, dispose of, grant an option in, grant a right of first refusal with respect to, grant a right of first offer with respect to, or dispose of, or offer to, or discuss or enter into any agreement, arrangement or understanding to, sell, transfer, assign, lease, dispose of, grant an option in, grant a right of first refusal with respect to, grant a right of first offer with respect to, or dispose of any of the WCS Spectrum Licenses, or any interest therein, or negotiate therefor, or (B) create, incur or suffer to exist any Lien of any nature whatsoever relating to any of the WCS Spectrum Licenses or any interest therein or incur any obligation or liability, absolute or contingent, relating to or affecting any of the WCS Spectrum Licenses or their use; (x) except as set forth on Schedule 7.2(b)(x), enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not invest in, make a loan, material advance or capital contribution to, or otherwise acquire the securities of any other Person; (xi) cancel or compromise any material debt or claim or waive or release any material right except in the Ordinary Course of Business; (xii) enter into any commitment for capital expenditures, in the case of the Company and the Company Subsidiaries, in excess of $20,000 for any individual commitment and $100,000 for all commitments in the aggregate; (xiii) enter into any transaction or to enter into, modify or renew any Contract , other than immaterial contracts that can be cancelled by the Company, Columbia Blocker, TKH Blocker or either Company Subsidiary, as applicable, on thirty (30) days notice or less, without any penalty or continued liability, and other than an agreement providing for the payment to Xxxxx of the Xxxxx Bonus Amount; (xiv) except for transfers of cash pursuant to normal cash management practices in the Ordinary Course of Business, make any investments in or loans to, or pay any fees or expenses to (other than pursuant to existing Contracts), or enter into or materially modify any Contract with any Affiliate of the Company, the Company Subsidiaries, Columbia Blocker or TKH Blocker or any director, officer or employee of any such Persons; (xv) make or change any election concerning Taxes or Tax Returns, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim or assessment or surrender any right to claim a refund of Taxes or obtain or enter into any Tax ruling; (xvi) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Company or any Subsidiary to compete with or conduct any business or line of business in any geographic area or enter into, modify, amend or terminate any Contract which if so entered into, modified, amended or terminated would be reasonably be expected to have a Material Adverse Effect; (xvii) terminate, amend, restate, supplement or waive any rights under any Contract, or Permit that would reasonably be expected to have a Material Adverse Effect; (xviii) fail to promptly pay and discharge current liabilities expect where disputed in good faith by appropriate proceedings, or accelerate the collection of any accounts receivable; (xix) enter into any settlement agreement or stipulation in connection with any Legal Proceeding described in Section 7.2(a)(x) without the prior written consent of Parent, which consent will not be unreasonably withheld, conditioned or delayed; and (xx) agree to do anything prohibited by this Section 8.6 7.2. (c) Subject to the provisions of Section 4.4, the Company shall not limit or otherwise affect no later than July 3, 2006 withdraw from the remedies available hereunder FCC its application for the FCC’s consent to Stratusthe transfer of control of the WCS Spectrum Licenses to XM (FCC File No. 0002240823).

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this AgreementAgreement or with the prior written consent of Parent, during the period from the date of this Agreement to the Closing, the Company shall (and the Company shall cause each of Canterbury and Hygeia shall:Person in the Company Group to): (i) conduct its businesses only in the Ordinary Course of Business; (ii) use commercially reasonable efforts to: to (A) preserve its present business operations, organization, material rights, franchises, Intellectual Property Rights and goodwill and (B) preserve its present relationship with Persons having material business dealings with such partythe Company and the Company Subsidiaries, including but not limited to, customers, suppliers, contractors, distributors and employees; (iii) use its commercially reasonable efforts to maintain: maintain (A) all material assets and properties of such party the Company and the Company Subsidiaries in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of such party the Company and the Company Subsidiaries in such amounts, of such kinds and with such carriers as are substantially similar to that in effect on the date of this Agreement; (iv) maintain its books, accounts and records in accordance with generally accepted accounting principles; (v) give all required notices of the transactions contemplated by this Agreement and use its commercially reasonable efforts to obtain all third party consents material to such partythe Company’s business that are necessary or advisable in order to consummate the transactions contemplated by this Agreement; (vi) not take any action which would reasonably be expected to adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; and; (vii) promptly notify Stratus Parent in writing if, prior to the consummation of the Closing, to their Knowledge: its Knowledge (a) any of the representations and warranties contained herein applicable in Article V cease to Canterbury or Hygeia are not be accurate and complete in all material respects or (b) Canterbury or Hygeia the Company fails to comply with or satisfy any material covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 8.6 7.3(vii) shall not limit or otherwise affect the remedies available hereunder to StratusParent; and (viii) at the Parent’s request, take reasonable steps to terminate any Company Plan that is intended to be qualified under Section 401(a) and (k) of the Code, such plan termination to become effective before the Closing. (b) Except as otherwise expressly provided in this Agreement or with the prior written consent of Parent, during the period from the date of this Agreement to the Closing, the Company shall not, and the Company shall cause each Person in the Company Group not to: (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of the Company Subsidiaries; (ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or any of the Company Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of the Company Subsidiaries; (iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company or any of the Company Subsidiaries; (iv) amend the certificate of incorporation or by-laws of the Company or any of the Company Subsidiaries; (v) except in the Ordinary Course of Business with respect to employees other than officers of the Company, (A) increase the annual level of compensation of any employee of the Company or any of the Company Subsidiaries, (B) increase the annual level of compensation payable or to become payable by the Company or any of the Company Subsidiaries to any of their respective officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, officer, director or consultant, (D) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Company or any of the Company Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which the Company or any of the Company Subsidiaries is a party or involving a current or former director, officer or employee of the Company or any of the Company Subsidiaries; (vi) incur or assume any Indebtedness except in the Ordinary Course of Business; (vii) subject to any Lien or otherwise encumber or permit, allow or suffer to be encumbered, any of the properties or assets (whether tangible or intangible), or any shares of capital stock of the Company or any of the Company Subsidiaries; (viii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of the Company and the Company Subsidiaries, including Intellectual Property; (ix) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not invest in, make a loan, material advance or capital contribution to, or otherwise acquire the securities of any other Person; (x) cancel or compromise any material debt or claim or waive or release any material right of the Company or any of the Company Subsidiaries; (xi) enter into any commitment for capital expenditures of the Company and its Subsidiaries in excess of $250,000 for any individual commitment and $500,000 for all commitments in the aggregate; (xii) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any Company Subsidiary or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company or any Company Subsidiary; (xiii) permit the Company or any of the Company Subsidiaries to enter into any transaction or to enter into, modify or renew any Contract with a distributor or which would be a Material Contract if entered into prior to the date hereof or that would reasonably be expected to have a Company Material Adverse Effect; (xiv) except for transfers of cash pursuant to normal cash management practices in the Ordinary Course of Business, permit the Company or any of the Company Subsidiaries to make any investments in or loans to, or pay any fees or expenses or make other payments to (other than pursuant to and in accordance with existing Contracts), or enter into or materially modify any Contract with any Affiliate of the Company or any of the Company Subsidiaries, or any director, officer or employee of the Company or any of the Company Subsidiaries; (xv) make or revoke any material election in respect of Taxes, change any accounting method in respect of material Taxes, prepare any Tax Return in a manner which is not consistent with past practice with respect to the treatment of items on such Tax Return, file any amendment to a Tax Return that will or may more than immaterially increase the liability of the Company or any Company Subsidiary after the Closing, incur any liability for Taxes other than in the Ordinary Course of Business, settle any material claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any material claim or assessment in respect of Taxes or surrender any right to claim a refund of Taxes or obtain or enter into any Tax ruling or agreement with any Taxing Authority; (xvi) enter into any Contract or understanding that restrains, restricts, limits or impedes the ability of the Company or any Company Subsidiary to compete with or conduct any business or line of business in any geographic area or enter into, modify, amend or terminate any Contract which if so entered into, modified, amended or terminated would be reasonably be expected to have a Company Material Adverse Effect; (xvii) except in the Ordinary Course of Business, terminate, amend, restate, supplement or waive any rights under any Material Contract; (xviii) terminate, amend, restate, supplement or waive any rights under any material Permit; and (xix) agree to do anything prohibited by this Sections 7.3(b). (c) Except as otherwise expressly provided in this Agreement or with the prior written consent of the Company, during the period from the date of this Agreement to the Closing, Parent shall not: (i) issue any shares of Parent Preferred Stock, Parent Common Stock or any other security of Parent convertible into Parent Common Stock to fund the cash portion of the Merger Consideration and to satisfy the conditions set forth in Section 8.2(d) with a conversion price or effective price less than the Average Closing Price; (ii) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) in respect of the capital stock of Parent or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, Parent; (iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of Parent; (iv) amend the Certificate of Incorporation of Parent to adversely affect the rights of the holders of Parent Common Stock; (v) incur or assume any Indebtedness except in the ordinary course of its business; (vi) enter into or agree to enter into any merger or consolidation with any corporation or other entity, and not invest in, make a loan, material advance or capital contribution to or otherwise acquire the securities of any other Person; (vii) except in the ordinary course of its business with respect to employees other than officers of Parent, (A) increase the annual level of compensation of any employee of the Parent, (B) increase the annual level of compensation payable or to become payable by Parent to any officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, officer, director or consultant, (D) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of Parent or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any collective bargaining, employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which Parent is a party or involving a current or former director, officer or employee of Parent; and (viii) agree to do anything prohibited by this Section 7.3(c).