Certain Covenants and Agreements 5.1. Conduct of Business by WRT From the date hereof to the Closing Date, WRT will, except as required in connection with the Exchange and the other transactions contemplated by this Agreement and except as otherwise disclosed on the WRT Disclosure Schedule or consented to in writing by Spacial:
(a) carry on its business in the ordinary and regular course in substantially the same manner as heretofore conducted and not engage in any new line of business or enter into any material agreement, transaction or activity or make any material commitment except those in the ordinary and regular course of business and not otherwise prohibited under this Section 5.1;
(b) neither change nor amend its Certificate of Incorporation or Bylaws;
(c) not issue or sell or register the transfer of shares of securities or capital stock of WRT or issue, sell or grant options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of any of the securities of WRT or rights or obligations convertible into or exchangeable for any securities of WRT and not alter the terms of any presently outstanding warrants or options or make any changes (by split-up, combination, reorganization or otherwise) in the capital structure of WRT;
(d) not declare, pay or set aside for payment any dividend or other distribution in respect of the capital stock or other securities of WRT and not redeem, purchase or otherwise acquire any shares of the capital stock or other securities of WRT or rights or obligations convertible into or exchangeable for any shares of the capital stock or other securities of WRT or obligations convertible into such, or any options, warrants or other rights to purchase or subscribe to any of the foregoing;
(e) not acquire or enter into any agreement to acquire, by merger, consolidation or purchase of securities or assets, any business or entity or any material part of the same;
(f) use its reasonable efforts to preserve intact the corporate existence, goodwill and business organization of WRT, to keep the officers and employees of WRT available to WRT and to preserve the relationships of WRT with suppliers, customers and others having business relations with any of them, except for such instances that would not have a WRT Material Adverse Effect;
(g) not (i) create, incur or assume any debt or create, incur or assume any short-term debt for borrowed money, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, (iii) make any loans or advances to any other person, or (iv) make any capital contributions to, or investments in, any person;
(h) not (i) enter into, modify or extend in any manner the terms of any employment, severance or similar agreements with officers and directors, (ii) grant any increase in the compensation of officers or directors, whether now or hereafter payable or (iii) grant any increase in the compensation of any other employees except for compensation increases in the ordinary course of business and consistent with past practice (it being understood by the parties hereto that for the purposes of (ii) and (iii) above increases in compensation shall include any increase pursuant to any option, bonus, stock purchase, pension, profit-sharing, deferred compensation, retirement or other plan, arrangement, contract or commitment);
(i) not make or incur (other than in the ordinary course of business) any individual capital expenditure in excess of $100,000 or capital expenditures in the aggregate in excess of $200,000 without the prior approval of Spacial (as used herein, "capital expenditure" shall mean all payments in respect of the cost of any fixed asset or improvement or replacement, substitution or addition thereto that has a useful life of more than one year, including those costs arising in connection with the acquisition of such assets by way of increased product or service charges or offset items or in connection with capital leases);
(j) except in instances that would not have a WRT Material Adverse Effect, perform all of its obligations under all WRT Material Contracts (except those being contested in good faith) and not enter into, assume or amend any contract or commitment that would be a WRT Material Contract other than contracts to provide services entered into in the ordinary course of business; and
(k) except in instances that would not have a WRT Material Adverse Effect, prepare and file all returns for taxes and other tax reports, filings and amendments thereto required to be filed by it, and allow Spacial, at its request, to review all such returns, reports, filings and amendments at WRT's offices prior to the filing thereof, which review shall not interfere with the timely filing of such returns.
5.2. Conduct of Business by Spacial From the date hereof to the Closing Date, Spacial will, except as required in connection with the Exchange and the other transactions contemplated by this Agreement and except as otherwise disclosed in the Spacial Disclosure Schedule or as consented to in writing by WRT:
(a) carry on its businesses in the ordinary and regular course in substantially the same manner as heretofore conducted and not engage in any new line of business or enter into any agreement, transaction or activity or make any commitment except in the ordinary and regular course of business and not otherwise prohibited under this Section 5.2;
(b) neither change nor amend its Certificate of Incorporation or Bylaws;
(c) not issue or sell any securities of Spacial or issue, sell or grant options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of any of the securities of Spacial or rights or obligations convertible into or exchangeable for any securities of Spacial and not alter the terms of any warrants or options, or make any changes (by split-up, combination, reorganization or otherwise) in the capital structure of Spacial;
(d) not declare, pay or set aside for payment any dividend or other distribution in respect of the capital stock or other equity securities of Spacial and not redeem, purchase or otherwise acquire any shares of the capital stock or other securities, or rights or obligations convertible into or exchangeable for any shares of the capital stock or other securities of Spacial or obligations convertible into such, or any options, warrants or other rights to purchase or subscribe to any of the foregoing;
(e) not acquire or enter into any agreement other than the Merger Agreement to acquire, by merger, consolidation or purchase of securities or assets, any business or entity or any material part thereof;
(f) use its reasonable efforts to preserve intact the corporate existence, goodwill and business organization of Spacial, to keep the officers and employees of Spacial available to Spacial and to preserve the relationships of Spacial with suppliers, customers and others having business relations with any of them, except for such instances that would not have a Spacial Material Adverse Effect;
(g) not (i) create, incur or assume any debt or create, incur or assume any short-term debt for borrowed money, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person, or (iii) make any loans or advances to any other person;
(h) not (i) enter into, modify or extend in any manner the terms of any employment, severance or similar agreements with officers and directors, (ii) grant any increase in the compensation of officers or directors, whether now or hereafter payable or (iii) grant any increase in the compensation of any other employees except for compensation increases in the ordinary course of business and consistent with past practice (it being understood by the parties hereto that for the purposes of (ii) and (iii) above increases in compensation shall include any increase pursuant to any option, bonus, stock purchase, pension, profit-sharing, deferred compensation, retirement or other plan, arrangement, contract or commitment);
(i) not make or incur (other than in the ordinary course of business) any individual capital expenditure in excess of $1,500 or capital expenditures in the aggregate in excess of $2,000 without the prior approval of WRT (as used herein, "capital expenditure" shall mean all payments in respect of the cost of any fixed asset or improvement or replacement, substitution or addition thereto which has a useful life of more than one year, including those costs arising in connection with the acquisition of such assets by way of increased product or service charges or offset items or in connection with capital leases);
(j) except in instances that would not have a Spacial Material Adverse Effect, perform all of its obligations under all Spacial Material Contracts (except those being contested in good faith) and not enter into, assume or amend any contract or commitment that would be a Spacial Material Contract other than contracts to provide services entered into in the ordinary course of business; and
(k) except in instances that would not have a Spacial Material Adverse Effect, prepare and file all federal, state, local and foreign returns for taxes and other tax reports, filings and amendments thereto required to be filed by it, and allow WRT, at its request, to review all such returns, reports, filings and amendments at Spacial's offices prior to the filing thereof, which review shall not interfere with the timely filing of such returns.
