Common use of Covenants of Public Company Clause in Contracts

Covenants of Public Company. Except as set forth in Section 5.2 of the Public Company Disclosure Schedule or as expressly provided herein or as consented to in writing by Merger Partner (which consent shall not be unreasonably withheld, conditioned or delayed) or to the extent necessary to comply with any applicable Laws, or as required in connection with the Concurrent Financing, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall, and shall cause each of its subsidiaries to, use commercially reasonable efforts to, act and carry on its business in the Ordinary Course of Business. Without limiting the generality of the foregoing, except as set forth in Section 5.2 of the Public Company Disclosure Schedule, as expressly provided herein, as required in connection with the Concurrent Financing, or to the extent necessary to comply with any applicable Law, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall not, and shall not permit any of its subsidiaries to, directly or indirectly, do any of the following without the prior written consent of Xxxxxx Partner (which consent shall not be unreasonably withheld, conditioned or delayed): (i) except as contemplated by the Closing Dividend (as defined below), declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stock; (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities, other than in respect of any Public Company Preferred Stock or upon exercise or conversion of any Public Company Stock Option or Public Company Warrant, in each case, outstanding on the date of this Agreement; or (iii) purchase, redeem or otherwise acquire any shares of its capital stock or any other of its securities or any rights, warrants or options to acquire any such shares or other securities, other than, in the case of this clause (iii), from former employees, directors and consultants in accordance with Public Company Stock Plans, as in effect as of the date of this Agreement; (b) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, in each case other than the issuance of shares of Public Company Common Stock pursuant to the Concurrent Financing, upon the exercise of Public Company Stock Options or Public Company Warrants or conversion of Public Company Preferred Stock, in each case, outstanding on the date of this Agreement in accordance with their present terms (including cashless exercises); (c) except as required or appropriate to give effect to anything in contemplation of the Closing, amend its articles of incorporation, bylaws or other comparable charter or organizational documents or effect or be a party to any merger, consolidation, share exchange, business combination, liquidation, dissolution, reorganization, statutory conversion, recapitalization, reclassification of shares, stock split or reverse stock split or form any new subsidiary or acquire any equity interest or other interest in any other Person; (d) acquire (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof or (ii) any assets that are material, individually or in the aggregate, to Public Company and its subsidiaries, taken as a whole; (e) sell, lease, license, pledge, or otherwise dispose of or encumber any properties or assets material to Public Company or any of its subsidiaries; (f) enter into any material transaction; (g) license any material Intellectual Property rights to or from any third party; (h) (i) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness of another Person, (ii) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of Public Company or any of its subsidiaries, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, (iii) make any loans, advances (other than routine advances to employees of Public Company in the Ordinary Course of Business) or capital contributions to, or investment in, any other Person, other than Public Company or any of its direct or indirect wholly owned subsidiaries or (iv) enter into any hedging agreement or other financial agreement or arrangement designed to protect Public Company or its subsidiaries against fluctuations in commodities prices or exchange rates; (i) forgive any loans to any Person, including its employees, officers, directors or Affiliate; (j) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify any agreement that terminated any Public Company Lease; (k) make (i) any capital expenditures or other expenditures with respect to property, plant or equipment or (ii) other material expenditures in excess of $50,000 in the aggregate (other than any expenditures in the Ordinary Course of Business); (l) make any changes in accounting methods, principles or practices, except insofar as may have been required by the SEC or a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve; (m) except for terminations as a result of the expiration of any contract that expires in accordance with its terms, (i) modify or amend in any material respect, or terminate, any material contract or agreement to which Public Company or any of its subsidiaries is party, or (ii) knowingly waive, release or assign any material rights or claims (including any write-off or other compromise of any accounts receivable of Public Company of any of its subsidiaries); (n) (i) enter into any contract or agreement, including those relating to the rendering of services or the distribution, sale or marketing by third parties of the products, of, or products licensed by, Public Company or any of its subsidiaries or (ii) license any Intellectual Property rights to or from any third party; (o) except as required to comply with a Public Company Employee Plan, (i) take any action with respect to, adopt, enter into, terminate (other than terminations for cause) or amend any Public Company Employee Plan (or any other employee benefit or compensation plan, program, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement) or any collective bargaining agreement, (ii) increase the compensation (including any compensation opportunities) or fringe benefits of, or pay any bonus or grant any bonus opportunity to, any director, officer, employee or consultant, (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding equity or equity-based incentive awards, (iv) pay any benefit not provided for as of the date of this Agreement under any benefit plan under any Public Company Employee Plan, (v) grant any awards under any Public Company Employee Plan (or under any other employee benefit or compensation plan, program, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement), or (vi) take any action other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under any Public Company Employee Plan (or under any other employee benefit or compensation plan, program, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement); (p) make, change or revoke any Tax election (other than elections made in the Ordinary Course of Business), change an annual accounting period, enter into any closing agreement, waive or extend any statute of limitations with respect to Taxes (other than any automatic extension granted in the Ordinary Course of Business and consistent with past custom and practice of Public Company), settle or compromise any material Tax liability, claim or assessment, knowingly surrender any right to claim a refund of material Taxes, or amend any income or other material Tax Return; (q) commence any offering of shares of Public Company Common Stock, including pursuant to any employee stock purchase plan; (r) initiate, threaten, compromise or settle any litigation or arbitration proceeding (other than any litigation to enforce its rights under this Agreement), other than a Permitted Settlement; (s) fail to use commercially reasonable efforts to maintain insurance levels substantially comparable to levels existing as of the date of this Agreement; (t) open or close any facility or office; (u) delay or fail to pay accounts payable and other obligations when due; or (v) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions or any action that would reasonably be expected to, individually or in the aggregate, make any representation or warranty of Public Company in this Agreement untrue or incorrect in any material respect, or would materially impair, delay or prevent the satisfaction of any conditions in Article VII hereof. If Public Company desires to take an action which would be prohibited pursuant to this Section 5.2 without the consent of Merger Partner, Public Company may request such consent (which consent shall not be unreasonably withheld, conditioned or delayed) by sending an email to the following individuals, which email shall be sufficient notice under this Agreement: Xxxxxx X. Xxxxxxxx and Xxxxxxxx XxXxxxx

Covenants of Public Company. Except as otherwise contemplated or permitted by this Agreement, as required by applicable law or by any agreement, plan or arrangement in effect on the date hereof, as set forth in Section 5.2 5.1 of the Public Company Disclosure Schedule Schedule, or as expressly provided herein or as consented to in writing by Merger Partner with Private Company’s consent (which consent shall not be unreasonably withheld, conditioned or delayed) or to ), during the extent necessary to comply with any applicable Laws, or as required in connection with the Concurrent Financing, from and after period commencing on the date of this Agreement until and ending at the Closing or such earlier of the termination of date on which this Agreement may be terminated in accordance with its terms and (the Effective Time“Pre-Closing Period”), Public Company shall, and shall cause each of its subsidiaries Subsidiaries to, use commercially reasonable efforts to, to act and carry on its business in the Ordinary Course of Business, including using commercially reasonable efforts to (i) pay its debts as and when they come due, (ii) make such filings as are required by the Securities Act, Exchange Act or as are necessary for the Public Company Common Stock to continue being listed on the NASDAQ and (iii) operate in compliance in all material respects with all applicable Laws and the requirements of all Contracts that constitute Public Company Material Contracts. Without limiting the generality of the foregoing, except as otherwise contemplated or permitted by this Agreement, as required by applicable law or by any agreement, plan or arrangement in effect on the date hereof, as set forth in Section 5.2 5.1 of the Public Company Disclosure Schedule, as expressly provided hereinor with Private Company’s consent (which shall not be unreasonably withheld, as required in connection with conditioned or delayed), during the Concurrent Financing, or to the extent necessary to comply with any applicable Law, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Pre-Closing Period Public Company shall not, and shall not permit any of its subsidiaries Subsidiaries to, directly or indirectly, do any of the following without the prior written consent of Xxxxxx Partner (which consent shall not be unreasonably withheld, conditioned or delayed):following: (a) (i) except as contemplated by the Closing Dividend (as defined below), declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stock; (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities, other than in respect of any Public Company Preferred Stock or upon exercise or conversion of any Public Company Stock Option or Public Company Warrant, in each case, outstanding on the date of this Agreement; or (iiiii) purchase, redeem or otherwise acquire any shares of its capital stock or any other of its securities or any rights, warrants or options to acquire any such shares or other securities, other thanexcept, in the case of this clause (iiiii), for the acquisition of shares of Public Company Common Stock (A) from holders of Public Company Stock Options in full or partial payment of the exercise price, (B) from holders of Public Company Stock Options in full or partial payment of any applicable Taxes payable by such holder upon exercise thereof, as applicable, to the extent required or permitted under the terms thereof or (C) from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares at their original issuance price or forfeiture of shares for no consideration, in each case in connection with any termination of services to Public Company Stock Plans, as in effect as or any of the date of this Agreementits Subsidiaries; (b) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, in each case other than the issuance of shares of Public Company Common Stock pursuant to the Concurrent Financing, upon the exercise of Public Company Stock Options or Public Company Warrants or conversion of Public Company Preferred Stock, in each case, outstanding on the date of this Agreement in accordance with their present terms (including cashless exercises)Agreement; (c) except as required or appropriate to give effect to anything in contemplation of the Closing, amend its articles certificate of incorporation, bylaws or other comparable charter or organizational documents or effect or be a party to any merger, consolidation, share exchange, business combination, liquidation, dissolution, reorganization, statutory conversion, recapitalization, reclassification of shares, stock split or reverse stock split or form any new subsidiary or acquire any equity interest or other interest in any other Persondocuments; (d) acquire (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof or (ii) any assets that are material, individually or in the aggregate, to Public Company and its subsidiariesSubsidiaries, taken as a whole, except purchases of inventory and raw materials in the Ordinary Course of Business; (e) assign, sell, lease, sublease, license, pledge, or otherwise dispose of, encumber or convey any right, title or interest in any of the Public Company Leased Properties or encumber any properties material assets owned, leased or assets material to otherwise operated by Public Company or any of its subsidiariesSubsidiaries other than in the Ordinary Course of Business; (f) enter into adopt any material transactionnew stockholder rights plan; (g) license any material Intellectual Property rights to or from any third party; (h) (i) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness of another PersonPerson (other than letters of credit or similar arrangements issued to or for the benefit of suppliers in the Ordinary Course of Business), (ii) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of Public Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, (iii) make any loans, advances (other than routine advances to employees of Public Company and its Subsidiaries in the Ordinary Course of Business) or capital contributions to, or investment in, any other Person, other than Public Company or any of its direct or indirect wholly owned subsidiaries Subsidiaries, provided, however, that Public Company may continue to make investments in accordance with its investment policy as in effect on the date hereof (a copy of which has been made available to Private Company), or (iv) other than in the Ordinary Course of Business, enter into any hedging agreement or other financial agreement or arrangement designed to protect Public Company or its subsidiaries Subsidiaries against fluctuations in commodities prices or exchange rates; (i) forgive any loans to any Person, including its employees, officers, directors or Affiliate; (j) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify any agreement that terminated any Public Company Lease; (kh) make (i) any capital expenditures or other expenditures with respect to property, plant or equipment or (ii) other material expenditures in excess of $50,000 100,000 in the aggregate (for Public Company and its Subsidiaries, taken as a whole, other than any as included in Public Company’s budget for capital expenditures in the Ordinary Course of Business)previously made available to Private Company; (li) make any material changes in accounting methods, principles or practices, except insofar as may have been be required by the SEC or a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserveGAAP; (m) except for terminations as a result of the expiration of any contract that expires in accordance with its terms, (i) modify or amend in any material respect, or terminate, any material contract or agreement to which Public Company or any of its subsidiaries is party, or (ii) knowingly waive, release or assign any material rights or claims (including any write-off or other compromise of any accounts receivable of Public Company of any of its subsidiaries); (nj) (i) enter into any contract or agreement, including those relating to the rendering of services or the distribution, sale or marketing by third parties of the products, of, or products licensed by, Public Company or any of its subsidiaries or (ii) license any Intellectual Property rights to or from any third party; (o) except as required to comply with a Public Company Employee Plan, (i) take any action with respect to, adopt, enter into, terminate (other than terminations for cause) or amend any Public Company Employee Plan (employment, severance or any other employee similar agreement or material benefit plan for the benefit or compensation plan, program, policy, agreement welfare of any current or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement) former director or executive officer or any collective bargaining agreementagreement (except in the Ordinary Course of Business and only if such arrangement is terminable on 60 days’ or less notice without either a penalty or a termination payment), (ii) increase the compensation (including any compensation opportunities) or fringe benefits of, or pay any bonus or grant any bonus opportunity to, any directordirector or executive officer (except for arrangements disclosed to Private Company), officer, employee or consultantit being understood (for the avoidance of doubt) that Public Company and its Subsidiaries may hire new employees and promote employees in the Ordinary Course of Business, (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding equity options or equity-based incentive restricted stock awards, other than as contemplated by this Agreement or (iv) pay grant any benefit not provided for as of the date of this Agreement under stock options, restricted stock units, stock appreciation rights, stock based or stock related awards, performance units or restricted stock; (k) enter into, amend in any benefit plan under material respect or terminate any Public Company Employee PlanMaterial Contract; (l) commence a lawsuit other than (A) for routine collection of bills, (vB) grant any awards under any in such cases as Public Company Employee Plan (or under in good faith determines that failure to commence such lawsuit would result in the material impairment of a valuable aspect of Public Company’s and/or any other employee benefit or compensation plan, program, policy, agreement or arrangement that would have constituted a Subsidiary of Public Company Employee Plan had it been in effect on the date business or (C) for a breach of this Agreement), or (vi) take any action other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under any Public Company Employee Plan (or under any other employee benefit or compensation plan, program, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement); (p) make, change or revoke any Tax election (other than elections made in the Ordinary Course of Business), change an annual accounting period, enter into any closing agreement, waive or extend any statute of limitations with respect to Taxes (other than any automatic extension granted in the Ordinary Course of Business and consistent with past custom and practice of Public Company), settle or compromise any material Tax liability, claim or assessment, knowingly surrender any right to claim a refund of material Taxes, or amend any income or other material Tax Return; (q) commence any offering of shares of Public Company Common Stock, including pursuant to any employee stock purchase plan; (r) initiate, threaten, compromise or settle any litigation or arbitration proceeding (other than any litigation to enforce its rights under this Agreement), other than a Permitted Settlement; (s) fail to use commercially reasonable efforts to maintain insurance levels substantially comparable to levels existing as of the date of this Agreement; (t) open or close any facility or office; (u) delay or fail to pay accounts payable and other obligations when due; or (vm) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions or any action that would reasonably be expected to, individually or in the aggregate, make any representation or warranty of Public Company in this Agreement untrue or incorrect in any material respect, or would materially impair, delay or prevent the satisfaction of any conditions in Article VII hereof. If Public Company desires to take an action which would be prohibited pursuant to this Section 5.2 without the consent of Merger Partner, Public Company may request such consent (which consent shall not be unreasonably withheld, conditioned or delayed) by sending an email to the following individuals, which email shall be sufficient notice under this Agreement: Xxxxxx X. Xxxxxxxx and Xxxxxxxx XxXxxxxactions.

Covenants of Public Company. Except as set forth in on Section 5.2 of the Public Company Disclosure Schedule or as expressly provided herein or as consented to in writing by Merger Partner (which consent shall not be unreasonably withheld, conditioned or delayed) or to the extent necessary to comply with any applicable Laws, or as required in connection with the Concurrent FinancingPartner, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall, and shall cause each of its subsidiaries to, use commercially reasonable efforts Subsidiaries to, act and carry on its business in the Ordinary Course usual, regular and ordinary course in substantially the same manner as previously conducted, pay its debts and Taxes and perform its other obligations when due (subject to good faith disputes over such debts, Taxes or obligations), comply with applicable laws, rules and regulations, and use commercially reasonable efforts, consistent with past practices, to maintain and preserve its and each of Businessits Subsidiaries’ business organization, assets and properties, keep available the services of its present officers and key employees and preserve its advantageous business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it. Without limiting the generality of the foregoing, except as set forth in Section 5.2 of the Public Company Disclosure Schedule, as expressly provided herein, as required in connection with the Concurrent Financing, or to the extent necessary to comply with any applicable Law, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall not, and shall not permit any of its subsidiaries Subsidiaries to, directly or indirectly, do any of the following without the prior written consent of Xxxxxx Partner Merger Partner: (which consent shall not be unreasonably withheld, conditioned or delayed): a) (i) except as contemplated by the Closing Dividend (as defined below), declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stockstock (other than dividends and distributions by a direct or indirect wholly owned Subsidiary of Public Company to its parent); (ii) with the exception of the Reverse Stock Split, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities, other than in respect of any Public Company Preferred Stock or upon exercise or conversion of any Public Company Stock Option or Public Company Warrant, in each case, outstanding on the date of this Agreement; or (iii) purchase, redeem or otherwise acquire any shares of its capital stock or any other of its securities or any rights, warrants or options to acquire any such shares or other securities, other than, in the case of this clause (iii), from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of services to Public Company Stock Plans, as in effect as or any of the date of this Agreementits Subsidiaries; (b) except as permitted by Section 5.2(n), issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, in each case securities (other than the issuance of shares of Public Company Common Stock pursuant to the Concurrent Financing, upon the exercise of Public Company Stock Options or Public Company Warrants or conversion of Public Company Preferred Stock, in each case, outstanding on the date of this Agreement in accordance with their present terms (including cashless exercises) or Public Company Stock Options granted as contemplated by Section 5.2(n)); (c) except as required or appropriate to give effect to anything in contemplation of the Closing, amend its articles certificate of incorporation, bylaws or other comparable charter or organizational documents documents, except to the extent necessary to carry into effect the provisions of Section 6.12 or effect or be a party to any merger, consolidation, share exchange, business combination, liquidation, dissolution, reorganization, statutory conversion, recapitalization, reclassification of shares, stock split or reverse stock split or form any new subsidiary or acquire any equity interest or other interest in any other Personas otherwise expressly provided by this Agreement; (d) except for purchases of inventory in the Ordinary Course of Business, acquire (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof or (ii) any assets that are material, individually or in the aggregate, to Public Company and its subsidiariesSubsidiaries, taken as a whole; (e) except in the Ordinary Course of Business, sell, lease, license, pledge, or otherwise dispose of or encumber any properties or assets of Public Company or of any of its Subsidiaries; (f) whether or not in the Ordinary Course of Business, sell, dispose of or otherwise transfer any assets material to Public Company and its Subsidiaries, taken as a whole (including any accounts, leases, contracts or intellectual property or any assets or the stock of any of its Subsidiaries, but excluding the sale or license of products in the Ordinary Course of Business); (g) adopt or implement any stockholder rights plan; (h) except for a confidentiality agreement as permitted by Section 6.1, enter into an agreement with respect to any merger, consolidation, liquidation or business combination, or any acquisition or disposition of all or substantially all of the assets or securities of Public Company or any of its subsidiariesSubsidiaries; (f) enter into any material transaction; (g) license any material Intellectual Property rights to or from any third party; (hi) (i) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness of another Personperson, (ii) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of Public Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another Personperson, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, (iii) make any loans, advances (other than routine advances to employees of Public Company in the Ordinary Course of Business) or capital contributions to, or investment in, any other Personperson, other than Public Company or any of its direct or indirect wholly owned subsidiaries Subsidiaries or (iv) enter into any hedging agreement or other financial agreement or arrangement designed to protect Public Company or its subsidiaries Subsidiaries against fluctuations in commodities prices or exchange rates; (i) forgive any loans to any Person, including its employees, officers, directors or Affiliate; (j) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify any agreement that terminated any Public Company Lease; (k) make (i) any capital expenditures or other expenditures with respect to property, plant or equipment or (ii) other material expenditures in excess of $50,000 in the aggregate (for Public Company and its Subsidiaries, taken as a whole, other than any as set forth in Public Company’s budget for capital expenditures previously made available to Merger Partner or the specific capital expenditures disclosed and set forth in Section 4.7 of the Ordinary Course of Business)Public Company Disclosure Schedule; (lk) make any changes in accounting methods, principles or practices, except insofar as may have been required by the SEC or a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve; (ml) except for terminations as a result of the expiration of any contract that expires in accordance with its termsmodify, (i) modify amend or amend in any material respect, or terminate, terminate any material contract or agreement to which Public Company or any of its subsidiaries Subsidiaries is party, or (ii) knowingly waive, release or assign any material rights or claims (including any write-off or other compromise of any accounts receivable of Public Company of any of its subsidiariesSubsidiaries), except in the Ordinary Course of Business or, to the extent subject to reserves reflected on the Public Company Balance Sheet, in accordance with GAAP; (n) (i) except in the Ordinary Course of Business, enter into any material contract or agreement, including those agreement relating to the rendering of services or the distribution, sale or marketing by third parties of the products, products of, or products licensed by, Public Company or any of its subsidiaries Subsidiaries or (ii) license any material Intellectual Property rights to or from any third party; (on) except as required to comply with a Public Company Employee Planapplicable law or agreements, plans or arrangements existing on the date hereof, (i) take any action with respect to, adopt, enter into, terminate (other than terminations for cause) or amend any Public Company Employee Plan (employment, severance or any other employee similar agreement or benefit plan for the benefit or compensation planwelfare of any current or former director, programofficer, policy, agreement employee or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement) consultant or any collective bargaining agreement, (ii) increase in any material respect the compensation (including any compensation opportunities) or fringe benefits of, or pay any bonus or grant any bonus opportunity to, any director, officer, employee or consultantconsultant (except for annual increases of the salaries of non-officer employees in the Ordinary Course of Business), (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding equity Public Company Stock Options or equity-based incentive restricted stock awards, (iv) pay any material benefit not provided for as of the date of this Agreement under any benefit plan under any Public Company Employee Planplan, (v) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any benefit plans or agreements or awards made thereunder), except for the grant of options to purchase Public Company Employee Plan (or under Common Stock to new hires, which grants shall not exceed 100,000 shares in the aggregate and 5,000 shares to any other employee benefit or compensation planone person, program, policy, agreement or arrangement that would and which option grants shall have constituted a an exercise price equal to the fair market value of Public Company Employee Plan had it been in effect Common Stock on the date of this Agreement), grant (determined in a manner consistent with Public Company’s existing practice for establishing fair market value for option grants and which option grants shall otherwise be upon Public Company’s customary terms) or (vi) take any action other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under any Public Company Employee Plan (or under any other employee benefit or compensation plan, programagreement, policy, agreement contract or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement)or benefit plan; (po) make, change make or revoke rescind any material Tax election (other than elections made in the Ordinary Course of Business), change an annual accounting period, enter into any closing agreement, waive or extend any statute of limitations with respect to Taxes (other than any automatic extension granted in the Ordinary Course of Business and consistent with past custom and practice of Public Company)election, settle or compromise any material Tax liability, claim or assessment, knowingly surrender any right to claim a refund of material Taxes, liability or amend any income or other material Tax Returnreturn except as required by applicable law; (qp) commence any offering of shares of Public Company Common Stock, including Stock pursuant to any employee stock purchase plan, permit any employee to enroll in any employee stock purchase plan or allow any participant in an employee stock purchase plan to increase the current level of such participant’s payroll deductions thereunder; (q) initiate, compromise or settle any material litigation or arbitration proceeding; (r) initiate, threaten, compromise open or settle close any litigation facility or arbitration proceeding (other than any litigation to enforce its rights under this Agreement), other than a Permitted Settlementoffice; (s) fail to use commercially reasonable efforts to maintain insurance at levels substantially comparable to levels existing as of the date of this Agreement; (t) open or close any facility or office; (u) delay or fail to pay accounts payable and other obligations when duein the Ordinary Course of Business; (u) fail to use commercially reasonable efforts to maintain inventory levels in the sales channel to ensure product availability to meet expected patient demand; provided, however, that the inventory level of any individual product in the sales channel shall not exceed aggregate sales for the preceding three months for such product, as measured by industry standard third party data sources, such as IMS Health, National Prescription Audit or the like; (v) fail to appropriately adjust any Public Company Stock Options or Public Company Warrants so that the exercise prices and number of shares issuable upon exercise provide the holder the same economic benefit as existed immediately prior to the Reverse Stock Split; or (vw) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions or any action that would reasonably be expected to, individually or in the aggregate, make any representation or warranty of Public Company in this Agreement untrue or incorrect in any material respect, or would materially impair, delay impair or prevent the satisfaction of any conditions in Article VII hereof. If Public Company desires to take an action which would be prohibited pursuant to this Section 5.2 without the consent of Merger Partner, Public Company may request such consent (which consent shall not be unreasonably withheld, conditioned or delayed) by sending an email to the following individuals, which email shall be sufficient notice under this Agreement: Xxxxxx X. Xxxxxxxx and Xxxxxxxx XxXxxxx.

Covenants of Public Company. Except as set forth in Section 5.2 of the Public Company Disclosure Schedule or as expressly provided herein or as consented to in writing by Merger Partner Otic Pharma (which consent shall not be unreasonably withheld, conditioned or delayed) or to the extent necessary to comply with any applicable Laws, or as required in connection with the Concurrent Financing), from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective TimeClosing, Public Company shall, and shall cause each of its subsidiaries to, use commercially reasonable efforts Subsidiaries to, act and carry on its business in the Ordinary Course of Business, pay its debts and Taxes and perform its other obligations when due (subject to good faith disputes over such debts, Taxes or obligations), comply with applicable laws, rules and regulations, and, use commercially reasonable efforts, consistent in all material respects with past practices, to maintain and preserve its and each of its Subsidiaries’ business organization, assets and properties, keep available the services of its present officers and key employees and preserve its advantageous business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it. Without limiting the generality of the foregoing, except as set forth in on Section 5.2 of the Public Company Disclosure Schedule, as expressly provided herein, as required in connection with the Concurrent Financing, or to the extent necessary to comply with any applicable Law, Schedule from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective TimeClosing, Public Company shall not, and shall not permit any of its subsidiaries Subsidiaries to, directly or indirectly, do any of the following without the prior written consent of Xxxxxx Partner Otic Pharma (which consent shall not not, in the case of the actions set forth in clauses (k) and (l) of this Section 5.2, be unreasonably withheld, conditioned or delayed): (a) (i) except as contemplated by the Closing Dividend (as defined below), declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stock; (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities, other than in respect of any Public Company Preferred Stock or upon exercise or conversion of any Public Company Stock Option or Public Company Warrant, in each case, outstanding on the date of this Agreement; or (iiiii) purchase, redeem or otherwise acquire any shares of its capital stock or any other of its securities or any rights, warrants or options to acquire any such shares or other securities, other than, in the case of this clause (iiiii), from former employees, directors and consultants in accordance with Public Company Stock Plans, as agreements in effect as of on the date of this AgreementAgreement providing for the repurchase of shares at no or nominal consideration in connection with any termination of services to Public Company or any of its Subsidiaries; (b) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, securities (in each case other than the issuance of shares of Public Company Common Stock pursuant to the Concurrent Financing, upon the exercise of Public Company Stock Options or Public Company Warrants or conversion of Public Company Preferred Stock, in each case, outstanding on the date of this Agreement in accordance with their present terms (including cashless exercises)); (c) except as required or appropriate to give effect to anything in contemplation of the Closing, amend its articles certificate of incorporation, bylaws or other comparable charter or organizational documents or effect or be a party to any merger, consolidation, share exchange, business combination, liquidation, dissolution, reorganization, statutory conversion, recapitalization, reclassification of shares, stock split or reverse stock split or form any new subsidiary or acquire any equity interest or other interest in any other Persondocuments; (d) except for purchases of inventory and raw materials in the Ordinary Course of Business, acquire (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof or (ii) any assets that are material, individually or in the aggregate, to Public Company and its subsidiariesSubsidiaries, taken as a whole; (e) except in the Ordinary Course of Business, sell, lease, license, pledge, or otherwise dispose of or encumber any properties or assets material to of Public Company or of any of its subsidiariesSubsidiaries; (f) enter into whether or not in the Ordinary Course of Business, sell, dispose of or otherwise transfer any assets material transactionto Public Company and its Subsidiaries, taken as a whole (including any accounts, leases, contracts or intellectual property or any assets or the stock of any of its Subsidiaries, but excluding the sale or license of products in the Ordinary Course of Business); (g) license any material Intellectual Property rights to or from any third party; (h) (i) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness of another Personperson, (ii) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of Public Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another Personperson, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, (iii) make any loans, advances (other than routine advances to employees of Public Company in the Ordinary Course of Business) or capital contributions to, or investment in, any other Personperson, other than Public Company or any of its direct or indirect wholly owned subsidiaries Subsidiaries or (iv) enter into any hedging agreement or other financial agreement or arrangement designed to protect Public Company or its subsidiaries Subsidiaries against fluctuations in commodities prices or exchange rates; (i) forgive any loans to any Person, including its employees, officers, directors or Affiliate; (j) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify any agreement that terminated any Public Company Lease; (kh) make (i) any capital expenditures or other expenditures, other than (i) those contemplated by the Public Company financial model provided to Otic Pharma on the date hereof; provided that variances in any line item in the financial model shall be permitted to the extent the aggregate expenditures with respect to property, plant or equipment or do not exceed the amount shown in the model (except as provided in clauses (ii) other material and (iii), (ii) additional expenditures in excess not exceeding 10% of $50,000 the amount of aggregate expenditures shown in the aggregate model and (other than any iii) expenditures in incurred by the Ordinary Course Public Company as a result of Business)events or circumstances involving the Public Company’s ongoing clinical trials that arise outside of the Public Company’s control; (li) make any changes in accounting methods, principles or practices, except insofar as may have been required by the SEC or a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve; (mj) except (i) in the Ordinary Course of Business or (ii) for terminations as a result of the expiration of any contract that expires in accordance with its terms, (iA) modify or amend in any material respect, or terminate, any material contract or agreement to which Public Company or any of its subsidiaries Subsidiaries is party, or (iiB) knowingly waive, release or assign any material rights or claims (including any write-off or other compromise of any accounts receivable of Public Company of any of its subsidiariesSubsidiaries); (nk) except in the Ordinary Course of Business, (i) enter into any material contract or agreement, including those agreement relating to the rendering of services or the distribution, sale or marketing by third parties of the products, of, or products licensed by, Public Company or any of its subsidiaries Subsidiaries or (ii) license any Intellectual Property material intellectual property rights to or from any third party; (ol) except as required to comply with a applicable law or agreements, plans or arrangements existing on the date hereof and either disclosed in the Public Company Employee PlanDisclosure Schedules, not required by this Agreement to be so disclosed or disclosed in the Public Company SEC Reports filed or furnished prior to the date of this Agreement, (i) take any action with respect to, adopt, enter into, terminate (other than terminations for cause) or amend any Public Company Employee Plan (employment, severance or any other employee similar agreement or benefit plan for the benefit or compensation planwelfare of any current or former director, programofficer, policy, agreement employee or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement) consultant or any collective bargaining agreement, (ii) increase in any material respect the compensation (including any compensation opportunities) or fringe benefits of, or pay any material bonus or grant any bonus opportunity to, any director, officer, employee or consultantconsultant (except for annual increases of the salaries of non-officer employees in the Ordinary Course of Business), (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding equity options or equity-based incentive restricted stock awards, (iv) pay any material benefit not provided for as of the date of this Agreement under any benefit plan under any Public Company Employee Planplan, (v) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any benefit plans or agreements or awards made thereunder), (vi) hire any additional officers or other employees, or any consultants or independent contractors, in each case, other than as set forth on Section 5.2(l) of the Public Company Employee Plan (Disclosure Schedules and employees, consultants or under any other employee benefit independent contractors hired to fill open position created as a result of the separation of service of an officer, employee, consultant or compensation planindependent contractor, programas applicable, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on after the date of this Agreement), or (vivii) take any action other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under any Public Company Employee Plan (or under any other employee benefit or compensation plan, programagreement, policy, agreement contract or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement)or benefit plan; (pm) make, make or change or revoke any material Tax election (other than elections made in the Ordinary Course of Business)election, change an annual accounting period, enter into any closing agreement, waive or extend any statute of limitations with respect to Taxes (other than any automatic extension granted in the Ordinary Course of Business and consistent with past custom and practice of Public Company)Taxes, settle or compromise any material Tax liability, claim or assessment, knowingly surrender any right to claim a refund of material Taxes, or amend any income or other material Tax Returnreturn; (qn) commence any offering of shares of Public Company Common Stock, including Stock pursuant to any employee stock purchase planEmployee Stock Purchase Plan; (ro) initiate, threaten, compromise or settle any material litigation or arbitration proceeding (other than any litigation to enforce its rights under this Agreement), other than a Permitted Settlementproceeding; (sp) open or close any facility or office; (q) fail to use commercially reasonable efforts to maintain insurance at levels substantially comparable to levels existing as of the date of this Agreement; (tr) open or close any facility or office; (u) delay or fail to pay accounts payable and other obligations when duein the Ordinary Course of Business; or (vs) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions or any action that would reasonably be expected to, individually or in the aggregate, make any representation or warranty of Public Company in this Agreement untrue or incorrect in any material respect, or would materially impair, delay impair or prevent the satisfaction of any conditions in Article VII hereof. If Public Company desires to take an action which would be prohibited pursuant to this Section 5.2 without the consent of Merger Partner, Public Company may request such consent (which consent shall not be unreasonably withheld, conditioned or delayed) by sending an email to the following individuals, which email shall be sufficient notice under this Agreement: Xxxxxx X. Xxxxxxxx and Xxxxxxxx XxXxxxx.

Covenants of Public Company. Except as set forth in on Section 5.2 of the Public Company Disclosure Schedule or as expressly provided herein or as consented to in writing by Merger Partner (which consent shall not be unreasonably withheld, conditioned or delayed) or to the extent necessary to comply with any applicable Laws, or as required in connection with the Concurrent FinancingPartner, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall, and shall cause each of its subsidiaries to, use commercially reasonable efforts Subsidiaries to, act and carry on its business in the Ordinary Course of Businessusual, regular and ordinary course in substantially the same manner as previously conducted. Without limiting the generality of the foregoing, except as set forth in Section 5.2 of the Public Company Disclosure Schedule, as expressly provided herein, as required in connection with the Concurrent Financing, or to the extent necessary to comply with any applicable Law, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall not, and shall not permit any of its subsidiaries Subsidiaries to, directly or indirectly, do any of the following without the prior written consent of Xxxxxx Partner (which consent shall not be unreasonably withheld, conditioned or delayed):Merger Partner: (i) except as contemplated by the Closing Dividend (as defined below), declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stock; stock (other than dividends and distributions by a direct or indirect wholly owned Subsidiary of Public Company to its parent), (ii) with the exception of the Reverse Stock Split, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities, other than in respect of any Public Company Preferred Stock or upon exercise or conversion of any Public Company Stock Option or Public Company Warrant, in each case, outstanding on the date of this Agreement; securities or (iii) purchase, redeem or otherwise acquire any shares of its capital stock or any other of its securities or any rights, warrants or options to acquire any such shares or other securities, other than, in the case of this clause (iii), from former employees, directors and consultants in accordance with Public Company Stock Plans, as in effect as of the date of this Agreement; (b) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, in each case securities (other than the issuance of shares of Public Company Common Stock pursuant to the Concurrent Financing, upon the exercise of Public Company Stock Options or Public Company Warrants or conversion of Public Company Preferred Stock, in each case, outstanding on the date of this Agreement in accordance with their present terms (including cashless exercises); (c) except as required or appropriate to give effect to anything in contemplation of the Closing, amend its articles Articles of incorporationIncorporation, bylaws Bylaws or other comparable charter or organizational documents or effect or be a party to any mergerdocuments, consolidation, share exchange, business combination, liquidation, dissolution, reorganization, statutory conversion, recapitalization, reclassification of shares, stock split or reverse stock split or form any new subsidiary or acquire any equity interest or other interest in any other Personexcept as otherwise expressly provided by this Agreement; (d) except for purchases of inventory in the Ordinary Course of Business, acquire (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof or (ii) any assets that are material, individually or in the aggregate, to Public Company and its subsidiariesSubsidiaries, taken as a whole; (e) except in the Ordinary Course of Business, sell, transfer, lease, license, pledge, or otherwise dispose of or encumber any properties or assets material to Public Company or of any of its subsidiariesSubsidiaries; (f) enter into adopt or implement any material transactionstockholder rights plan; (g) license other than as set forth in Section 5.2(g) of the Public Company Disclosure Schedule, enter into an agreement with respect to any material Intellectual Property rights to merger, consolidation, liquidation or from business combination, or any third partyacquisition or disposition of all or substantially all of the assets or securities of Public Company or any of its Subsidiaries; (h) (i) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness of another Personperson, (ii) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of Public Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another Personperson, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, foregoing or (iii) make any loans, advances (other than routine advances to employees of Public Company in the Ordinary Course of Business) or capital contributions to, or investment in, any other Personperson, other than Public Company or any of its direct or indirect wholly owned subsidiaries or (iv) enter into any hedging agreement or other financial agreement or arrangement designed to protect Public Company or its subsidiaries against fluctuations in commodities prices or exchange ratesSubsidiaries; (i) forgive any loans to any Person, including its employees, officers, directors or Affiliate; (j) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify any agreement that terminated any Public Company Lease; (k) make (i) any capital expenditures or other expenditures with respect to property, plant or equipment or (ii) other material expenditures in excess of $50,000 in the aggregate (other than any expenditures in the Ordinary Course of Business)Business in excess of $5,000 in the aggregate for Public Company and its Subsidiaries, taken as a whole, other than specific capital expenditures disclosed and set forth in Section 5.2(i) of the Public Company Disclosure Schedule; (lj) make any changes in accounting methods, principles or practices, except insofar as may have been required by the SEC or a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve; (mk) except for terminations as a result of the expiration of modify, amend or terminate any contract that expires in accordance with its terms, (i) modify or amend in any material respectPublic Company Material Contract, or terminate, any material contract or agreement to which Public Company or any of its subsidiaries is party, or (ii) knowingly waive, release or assign any material rights or claims (including any write-off or other compromise of any accounts receivable of Public Company of any of its subsidiariesSubsidiaries), except in the Ordinary Course of Business or, to the extent subject to reserves reflected on the Public Company Balance Sheet, in accordance with GAAP; (n) (i) enter into any contract or agreement, including those relating to the rendering of services or the distribution, sale or marketing by third parties of the products, of, or products licensed by, Public Company or any of its subsidiaries or (ii) license any Intellectual Property rights to or from any third party; (ol) except as required to comply with a Public Company Employee Planapplicable law or agreements, plans or arrangements existing on the date hereof, (i) take any action with respect to, adopt, enter into, terminate (other than terminations for cause) or amend any Public Company Employee Plan (employment, severance, change of control, indemnification, or agreement similar to the foregoing, or any other employee benefit or compensation plan, program, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement) or any collective bargaining agreement, (ii) increase in any material respect the compensation (including any compensation opportunities) or fringe benefits of, or pay any bonus or grant any bonus opportunity to, any director, officer, employee or consultant, (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding equity Public Company Stock Options or equity-based incentive restricted stock awards, (iv) pay any material benefit not provided for as of the date of this Agreement under any benefit plan under any Public Company Employee Planplan, (v) grant any awards under any Public Company Employee Plan (bonus, incentive, performance or under any other employee benefit or compensation plan, program, policy, agreement plan or arrangement that would have constituted a Public Company Employee Plan had it been or benefit plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in effect on the date of this Agreementany benefit plans or agreements or awards made thereunder), (vi) permit any employee to enroll in any employee stock purchase plan or allow any participant in an employee stock purchase plan to increase the current level of such participant’s payroll deduction thereunder or (vivii) take any action other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under any Public Company Employee Plan (or under any other employee benefit or compensation plan, programagreement, policy, agreement contract or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement)or benefit plan; (pm) make, change make or revoke rescind any material Tax election (other than elections made in the Ordinary Course of Business), change an annual accounting period, enter into any closing agreement, waive or extend any statute of limitations with respect to Taxes (other than any automatic extension granted in the Ordinary Course of Business and consistent with past custom and practice of Public Company)election, settle or compromise any material Tax liability, claim or assessment, knowingly surrender any right to claim a refund of material Taxes, liability or amend any income or other material Tax Returnreturn except as required by applicable law; (q) commence any offering of shares of Public Company Common Stock, including pursuant to any employee stock purchase plan; (rn) initiate, threaten, compromise or settle any material litigation or arbitration proceeding (other than any litigation to enforce its rights under this Agreement), other than a Permitted Settlementproceeding; (so) open or close any facility or office; (p) fail to use commercially reasonable efforts to maintain insurance at levels substantially comparable to levels existing as of the date of this Agreement; (tq) open or close any facility or office; (u) delay or fail to pay accounts payable and other obligations when duein the Ordinary Course of Business; (r) conduct its business in a manner that would cause it to become subject to the Investment Company Act of 1940; (s) if Merger Partner has requested a Reverse Stock Split pursuant to Section 2.1(a), fail to appropriately adjust any Public Company Stock Options so that the exercise prices and number of shares issuable upon exercise provide the holder the same economic benefit as existed immediately prior to the Reverse Stock Split; or (vt) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions or any action that would reasonably be expected to, individually or in the aggregate, make any representation or warranty of Public Company in this Agreement untrue or incorrect in any material respect, or would materially impair, delay impair or prevent the satisfaction of any conditions in Article VII VIII hereof. If Public Company desires to take an action which would be prohibited pursuant to this Section 5.2 without the consent of Merger Partner, Public Company may request such consent (which consent shall not be unreasonably withheld, conditioned or delayed) by sending an email to the following individuals, which email shall be sufficient notice under this Agreement: Xxxxxx X. Xxxxxxxx and Xxxxxxxx XxXxxxx.

Covenants of Public Company. Except as set forth in Section 5.2 5.02 of the Public Company Disclosure Schedule or as expressly provided herein or as consented to in writing by Merger Partner (which consent shall not be unreasonably withheld, conditioned or delayed) ), or to the extent necessary to comply with any applicable Laws, or as required in connection with the Concurrent FinancingCOVID-19 Measures, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall, and shall cause each of its subsidiaries to, use commercially reasonable efforts Subsidiaries to, act and carry on its business in the Ordinary Course of Business, pay its debts and Taxes and perform its other obligations when due (subject to good faith disputes over such debts, Taxes or obligations), comply with applicable laws, rules and regulations, and with respect to the Public Company, use commercially reasonable efforts to maintain and preserve its and each of its Subsidiaries' business organization, assets and properties, keep available the services of its present officers and key employees listed on Section 5.02 of the Public Company Disclosure Schedule and preserve its advantageous business relationships with customers, strategic partners, suppliers, distributors and others having business dealings. Without limiting the generality of the foregoing, except as set forth in Section 5.2 5.02 of the Public Company Disclosure Schedule, Schedule or as expressly provided herein, as required in connection with the Concurrent Financing, or to the extent necessary to comply with any applicable LawCOVID-19 Measures, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall not, and shall not permit any of its subsidiaries Subsidiaries to, directly or indirectly, do any of the following without the prior written consent of Xxxxxx Merger Partner (which consent shall not not, in the case of the actions set forth in clauses (k) and (l) of this Section 5.02, be unreasonably withheld, conditioned or delayed): (a) (i) except as contemplated by the Closing Dividend (as defined below), declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its shares or capital stockstock (other than dividends and distributions by a direct or indirect wholly owned Subsidiary of Merger Partner to its parent); (ii) split, combine or reclassify any of its shares or capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities, other than in respect of any Public Company Preferred Stock or upon exercise or conversion of any Public Company Stock Option or Public Company Warrant, in each case, outstanding on the date of this Agreement; or (iii) purchase, redeem or otherwise acquire any shares of its capital stock or any other of its securities or any rights, warrants or options to acquire any such shares or other securities, other than, in the case of this clause (iii), the withholding of Public Company Common Shares to pay the exercise price or withholding taxes upon the exercise of stock options or from former employees, directors and consultants in accordance with Public Company Stock Plans, as agreements in effect as of on the date of this AgreementAgreement providing for the repurchase of shares at no or nominal consideration in connection with any termination of services to Public Company or any of its Subsidiaries; (b) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, securities (in each case other than the issuance of shares of Public Company Common Stock pursuant to the Concurrent Financing, Shares upon the exercise of Public Company Stock Options or Public Company Warrants or conversion of Public Company Preferred Stock, in each case, outstanding on the date of this Agreement and set forth in Section 4.02(b) or Section 4.02(c) of the Public Company Disclosure Schedule in accordance with their present terms (including cashless exercises)); except as the case may be to raise capital for any financing or investment activities, directly or indirectly, on behalf of the Merger Partner, or in connection with the core or existing business of the Surviving Corporation (which includes the sponsorship of a SPAC as previously disclosed by the Public Company); (c) except as required or appropriate to give effect to anything in contemplation of the Closing, amend its articles or certificate of incorporation, bylaws or other comparable charter or organizational documents or effect or be a party to any merger, consolidation, share exchange, business combination, liquidation, dissolution, reorganization, statutory conversion, recapitalization, reclassification of shares, stock split or reverse stock split or form any new subsidiary Subsidiary or acquire any equity interest or other interest in any other Personperson; (d) acquire (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof or (ii) any assets that are material, individually or in the aggregate, to Public Company and its subsidiariesSubsidiaries, taken as a whole; (e) except in the Ordinary Course of Business, sell, lease, license, pledge, or otherwise dispose of or encumber any properties or assets material to of Public Company or of any of its subsidiariesSubsidiaries; (f) enter into whether or not in the Ordinary Course of Business, sell, dispose of or otherwise transfer any assets material transactionto Public Company and its Subsidiaries, taken as a whole (including any accounts, leases, contracts or Intellectual Property or any assets or the stock of any of its Subsidiaries, but excluding the sale or license of products in the Ordinary Course of Business); (g) license any material Intellectual Property rights to or from any third party; (h) (i) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness of another Personperson, (ii) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of Public Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another Personperson, enter into any “"keep well” " or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, (iii) make any loans, advances (other than routine advances to employees of Public Company in the Ordinary Course of Business) or capital contributions to, or investment in, any other Personperson, other than Public Company or any of its direct or indirect wholly owned subsidiaries Subsidiaries or (iv) enter into any hedging agreement or other financial agreement or arrangement designed to protect Public Company or its subsidiaries Subsidiaries against fluctuations in commodities prices or exchange rates; except as the case may be in the support or growth of the Surviving Corporation's core or existing business (which includes the sponsorship of a SPAC as previously disclosed by the Public Company), subject to approval by the Merger Partner; (i) forgive any loans to any Person, including its employees, officers, directors or Affiliate; (j) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify any agreement that terminated any Public Company Lease; (kh) make (i) any capital expenditures or other expenditures with respect to property, plant or equipment or (ii) other material expenditures in excess of $50,000 18,000,000 in the aggregate (for Public Company and its Subsidiaries, taken as a whole, without express written consent of the Merger Partner other than any as set forth in Public Company's budget for capital expenditures previously made available to Merger Partner or the specific capital expenditures disclosed and set forth in Section 5.02 of the Ordinary Course of Business)Public Company Disclosure Schedule; (li) make any changes in accounting methods, principles or practices, except insofar as may have been required by the SEC or any Canadian Securities Administrators or a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve; (mj) except (i) in the Ordinary Course of Business or (ii) for terminations as a result of the expiration of any contract that expires in accordance with its terms, (iA) modify or amend in any material respect, or terminate, any material contract or agreement to which Public Company or any of its subsidiaries Subsidiaries is party, or (iiB) knowingly waive, release or assign any material rights or claims (including any write-off or other compromise of any accounts receivable of Public Company of any of its subsidiariesSubsidiaries); provided, however, that the Public Company shall, to the extent not delivered prior to the date hereof, deliver a notice of termination under each of the licenses for Intellectual Property set forth in Section 5.02 of the Public Company Disclosure Schedule; (nk) (i) enter into any material contract or agreement, including those agreement relating to the rendering of services or the distribution, sale or marketing by third parties of the products, of, or products licensed by, Public Company or any of its subsidiaries Subsidiaries or (ii) license any material Intellectual Property rights to or from any third party; except as the case may be in the support or growth of the Surviving Corporation's core or existing business (which includes the sponsorship of a SPAC as previously disclosed by the Public Company); (ol) except as required to comply with a applicable Law or agreements, plans or arrangements existing on the date hereof and disclosed in the Public Company Employee PlanDisclosure Schedules, (i) take any action with respect to, adopt, enter into, terminate (other than terminations for cause) or amend any Public Company Employee Plan (employment, severance or any other employee similar agreement or benefit plan for the benefit or compensation planwelfare of any current or former director, programofficer, policy, agreement employee or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement) consultant or any collective bargaining agreement, (ii) increase in any material respect the compensation (including any compensation opportunities) or fringe benefits of, or pay any material bonus or grant any bonus opportunity to, any director, officer, employee or consultant, (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding equity options or equity-based incentive restricted stock awards, (iv) pay any material benefit not provided for as of the date of this Agreement under any benefit plan under any Public Company Employee Planplan, (v) grant any awards under any Public Company Employee Plan (bonus, incentive, performance or under any other employee benefit or compensation plan, program, policy, agreement plan or arrangement that would have constituted a Public Company Employee Plan had it been or benefit plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in effect on the date of this Agreementany benefit plans or agreements or awards made thereunder), (vi) hire any additional officers or other employees, or any consultants or independent contractors, or (vivii) take any action other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under any Public Company Employee Plan (or under any other employee benefit or compensation plan, programagreement, policy, agreement contract or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement)or benefit plan; (pm) make, make or change or revoke any material Tax election (other than elections made in the Ordinary Course of Business)election, change an annual accounting period, enter into any closing agreement, waive or extend any statute of limitations with respect to Taxes (other than any automatic extension granted in the Ordinary Course of Business and consistent with past custom and practice of Public Company)Taxes, settle or compromise any material Tax liability, claim or assessment, knowingly surrender any right to claim a refund of material Taxes, or amend any income or other material Tax Return; (qn) commence any offering of shares of Public Company Common Stock, including Shares pursuant to any employee stock purchase planEmployee Stock Purchase Plan; (ro) initiate, threaten, compromise or settle any litigation or arbitration proceeding (other than any litigation to enforce its rights under this Agreement), other than a Permitted Settlementproceeding; (sp) open or close any facility or office; (q) fail to use commercially reasonable efforts to maintain insurance at levels substantially comparable to levels existing as of the date of this Agreement; (tr) open or close any facility or office; (u) delay or fail to pay accounts payable and other obligations when duein the Ordinary Course of Business; or (vs) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions or any action that would reasonably be expected to, individually or in the aggregate, make any representation or warranty of Public Company in this Agreement untrue or incorrect in any material respect, or would materially impair, delay or prevent the satisfaction of any conditions in Article VII hereof. If Public Company desires to take an action which would be prohibited pursuant to this Section 5.2 without the consent of Merger Partner, Public Company may request such consent (which consent shall not be unreasonably withheld, conditioned or delayed) by sending an email to the following individuals, which email shall be sufficient notice under this Agreement: Xxxxxx X. Xxxxxxxx and Xxxxxxxx XxXxxxx.

Covenants of Public Company. Except as set forth in Section 5.2 of the Public Company Disclosure Schedule or as expressly provided herein or as consented to in writing by Merger Partner (which consent shall not be unreasonably withheld, conditioned or delayed) ), or to the extent necessary to comply with any applicable Laws, Law or as required in connection with the Concurrent FinancingCOVID-19 Measure, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall, and shall cause each of its subsidiaries to, use commercially reasonable efforts to, act and carry on its business in the Ordinary Course of Business, pay its debts and Taxes and perform its other obligations when due (subject to good faith disputes over such debts, Taxes or obligations), and, use commercially reasonable efforts to maintain and preserve its and each of its subsidiaries’ business organization, assets and properties, keep available the services of its present officers and key employees and preserve its advantageous business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it. Without limiting the generality of the foregoing, except as set forth in Section 5.2 of the Public Company Disclosure Schedule, Schedule or as expressly provided herein, as required herein or in connection with the Concurrent FinancingLegacy APA or any Legacy Asset Disposition Agreement, or to the extent necessary to comply with any applicable LawLaw or COVID-19 Measure, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall not, and shall not permit any of its subsidiaries to, directly or indirectly, do any of the following without the prior written consent of Xxxxxx Merger Partner (which consent shall not be unreasonably withheld, conditioned or delayed): (a) (i) except as contemplated by the Closing Dividend (as defined below)Reverse Stock Split, declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stock; (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities, other than in respect of any Public Company Preferred Stock or upon exercise or conversion of any Public Company Stock Option or Public Company Warrant, in each case, outstanding on the date of this Agreement; or (iiiii) purchase, redeem or otherwise acquire any shares of its capital stock or any other of its securities or any rights, warrants or options to acquire any such shares or other securities, other than, in the case of this clause (iiiii), from former employees, directors and consultants in accordance with Public Company Stock Plans, as in effect as of the date of this Agreement; (b) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, securities (in each case other than the issuance of shares of Public Company Common Stock pursuant to the Concurrent Financing, upon the exercise of Public Company Stock Options or Public Company Warrants or conversion the settlement of Public Company Preferred Stock, in each case, RSUs outstanding on the date of this Agreement and set forth in Section 4.2(b) or Section 4.2(c) of the Public Company Disclosure Schedule in accordance with their present terms (including cashless exercises)); (c) except as required or appropriate to give effect to anything in contemplation of contemplated by the ClosingReverse Stock Split, amend its articles certificate of incorporation, bylaws or other comparable charter or organizational documents or effect or be a party to any merger, consolidation, share exchange, business combination, liquidation, dissolution, reorganization, statutory conversion, recapitalization, reclassification of shares, stock split or reverse stock split or form any new subsidiary or acquire any equity interest or other interest in any other Personperson; (d) acquire (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof or (ii) any assets that are material, individually or in the aggregate, to Public Company and its subsidiaries, taken as a whole; (e) except as contemplated by Section 5.4, sell, lease, license, pledge, or otherwise dispose of or encumber any properties or assets material to of Public Company or of any of its subsidiaries; (f) whether or not in the Ordinary Course of Business, sell, dispose of or otherwise transfer any assets material to Public Company and its subsidiaries, taken as a whole (including any accounts, leases, contracts or Intellectual Property or any assets or the stock of any of its subsidiaries); (g) enter into any material transaction; (gh) license any material Intellectual Property rights Rights to or from any third party; (hi) (i) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness of another Personperson, (ii) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of Public Company or any of its subsidiaries, guarantee any debt securities of another Personperson, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, (iii) make any loans, advances (other than routine advances to employees of Public Company in the Ordinary Course of BusinessBusiness pursuant to Public Company Employee Plans) or capital contributions to, or investment in, any other Personperson, other than Public Company or any of its direct or indirect wholly owned subsidiaries or (iv) enter into any hedging agreement or other financial agreement or arrangement designed to protect Public Company or its subsidiaries against fluctuations in commodities prices or exchange rates; (i) forgive any loans to any Person, including its employees, officers, directors or Affiliate; (j) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify any agreement that terminated any Public Company Lease; (k) make (iA) any capital expenditures or other expenditures with respect to property, plant or equipment or (iiB) other material expenditures in excess of $50,000 25,000 in the aggregate (other than any expenditures in the Ordinary Course of Business); (l) make any changes in accounting methods, principles or practices, except insofar as may have been required by the SEC or a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve; (m) except for terminations as a result of the expiration of any contract that expires in accordance with its terms, (iA) modify or amend in any material respect, or terminate, any material contract or agreement to which Public Company or any of its subsidiaries is party, or (iiB) knowingly waive, release or assign any material rights or claims (including any write-off or other compromise of any accounts receivable of Public Company of any of its subsidiaries); (n) (i) enter into any contract or agreement, including those relating to the rendering of services or the distribution, sale or marketing by third parties of the products, of, or products licensed by, Public Company or any of its subsidiaries or (ii) license any Intellectual Property rights to or from any third party; (o) except as required to comply with a Public Company Employee Plan, (i) take any action with respect to, adopt, enter into, terminate (other than terminations for cause) or amend any Public Company Employee Plan (or any other employee benefit or compensation plan, program, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement) or any collective bargaining agreement, (ii) increase the compensation (including any compensation opportunities) or fringe benefits of, or pay any bonus or grant any bonus opportunity to, any director, officer, employee or consultant, (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding equity or equity-based incentive awards, (iv) pay any benefit not provided for as of the date of this Agreement under any benefit plan under any Public Company Employee Plan, (v) grant any awards under any Public Company Employee Plan (or under any other employee benefit or compensation plan, program, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement), or (vi) take any action other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under any Public Company Employee Plan (or under any other employee benefit or compensation plan, program, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement); (p) make, make or change or revoke any Tax election (other than elections made in the Ordinary Course of Business)election, change an annual accounting period, enter into any closing agreement, waive or extend any statute of limitations with respect to Taxes (other than any automatic extension granted in the Ordinary Course of Business and consistent with past custom and practice of Public Company)Taxes, settle or compromise any material Tax liability, claim or assessment, knowingly surrender any right to claim a refund of material Taxes, or amend any income or other material Tax Return; (q) commence any offering of shares of Public Company Common Stock, including pursuant to any employee stock purchase plan; (r) initiate, threaten, compromise or settle any litigation or arbitration proceeding (other than any litigation to enforce its rights under this Agreement), other than a Permitted Settlementproceeding; (s) fail to use commercially reasonable efforts to maintain insurance levels substantially comparable to levels existing as of the date of this Agreement; (t) open or close any facility or office; (u) delay or fail to pay accounts payable and other obligations when due; or (v) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions or any action that would reasonably be expected to, individually or in the aggregate, make any representation or warranty of Public Company in this Agreement untrue or incorrect in any material respect, or would materially impair, delay or prevent the satisfaction of any conditions in Article VII hereof. If Public Company desires to take an action which would be prohibited pursuant to this Section 5.2 without the consent of Merger Partner, Public Company may request such consent (which consent shall not be unreasonably withheld, conditioned or delayed) by sending an email to the following individuals, which email shall be sufficient notice under this Agreement: Xxxxxx X. Xxxxxxxx and Xxxxxxxx XxXxxxxXxx Xxxxx: ***@***.com Xxx Xxxx: ***@***.com Xxxxx Xxxxxxxx: ***@***.com

Covenants of Public Company. Except as set forth in Section 5.2 5.02 of the Public Company Disclosure Schedule or as expressly provided herein or as consented to in writing by Merger Partner (which consent shall not be unreasonably withheld, conditioned or delayed) ), or to the extent necessary to comply with any applicable Laws, or as required in connection with the Concurrent FinancingCOVID-19 Measures, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall, and shall cause each of its subsidiaries to, use commercially reasonable efforts Subsidiaries to, act and carry on its business in the Ordinary Course of Business, pay its debts and Taxes and perform its other obligations when due (subject to good faith disputes over such debts, Taxes or obligations), comply with applicable laws, rules and regulations, and with respect to the Public Company, use commercially reasonable efforts to maintain and preserve its and each of its Subsidiaries’ business organization, assets and properties, keep available the services of its present officers and key employees listed on Section 5.02 of the Public Company Disclosure Schedule and preserve its advantageous business relationships with customers, strategic partners, suppliers, distributors and others having business dealings. Without limiting the generality of the foregoing, except as set forth in Section 5.2 5.02 of the Public Company Disclosure Schedule, Schedule or as expressly provided herein, as required in connection with the Concurrent Financing, or to the extent necessary to comply with any applicable LawCOVID-19 Measures, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall not, and shall not permit any of its subsidiaries Subsidiaries to, directly or indirectly, do any of the following without the prior written consent of Xxxxxx Partner (which consent shall not not, in the case of the actions set forth in clauses (k) and (l) of this Section 5.02, be unreasonably withheld, conditioned or delayed): (a) (i) except as contemplated by the Closing Dividend (as defined below), declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its shares or capital stockstock (other than dividends and distributions by a direct or indirect wholly owned Subsidiary of Merger Partner to its parent); (ii) split, combine or reclassify any of its shares or capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities, other than in respect of any Public Company Preferred Stock or upon exercise or conversion of any Public Company Stock Option or Public Company Warrant, in each case, outstanding on the date of this Agreement; or (iii) purchase, redeem or otherwise acquire any shares of its capital stock or any other of its securities or any rights, warrants or options to acquire any such shares or other securities, other than, in the case of this clause (iii), the withholding of Public Company Common Shares to pay the exercise price or withholding taxes upon the exercise of stock options or from former employees, directors and consultants in accordance with Public Company Stock Plans, as agreements in effect as of on the date of this AgreementAgreement providing for the repurchase of shares at no or nominal consideration in connection with any termination of services to Public Company or any of its Subsidiaries; (b) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, securities (in each case other than the issuance of shares of Public Company Common Stock pursuant to the Concurrent Financing, Shares upon the exercise of Public Company Stock Options or Public Company Warrants or conversion of Public Company Preferred Stock, in each case, outstanding on the date of this Agreement and set forth in Section 4.02(b) or Section 4.02(c) of the Public Company Disclosure Schedule in accordance with their present terms (including cashless exercises)); except as the case may be to raise capital for any financing or investment activities, directly or indirectly, on behalf of the Merger Partner, or in connection with the core or existing business of the Surviving Corporation (which includes the sponsorship of a SPAC as previously disclosed by the Public Company); (c) except as required or appropriate to give effect to anything in contemplation of the Closing, amend its articles or certificate of incorporation, bylaws or other comparable charter or organizational documents or effect or be a party to any merger, consolidation, share exchange, business combination, liquidation, dissolution, reorganization, statutory conversion, recapitalization, reclassification of shares, stock split or reverse stock split or form any new subsidiary Subsidiary or acquire any equity interest or other interest in any other Personperson; (d) acquire (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof or (ii) any assets that are material, individually or in the aggregate, to Public Company and its subsidiariesSubsidiaries, taken as a whole; (e) except in the Ordinary Course of Business, sell, lease, license, pledge, or otherwise dispose of or encumber any properties or assets material to of Public Company or of any of its subsidiariesSubsidiaries; (f) enter into whether or not in the Ordinary Course of Business, sell, dispose of or otherwise transfer any assets material transactionto Public Company and its Subsidiaries, taken as a whole (including any accounts, leases, contracts or Intellectual Property or any assets or the stock of any of its Subsidiaries, but excluding the sale or license of products in the Ordinary Course of Business); (g) license any material Intellectual Property rights to or from any third party; (h) (i) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness of another Personperson, (ii) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of Public Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another Personperson, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, (iii) make any loans, advances (other than routine advances to employees of Public Company in the Ordinary Course of Business) or capital contributions to, or investment in, any other Personperson, other than Public Company or any of its direct or indirect wholly owned subsidiaries Subsidiaries or (iv) enter into any hedging agreement or other financial agreement or arrangement designed to protect Public Company or its subsidiaries Subsidiaries against fluctuations in commodities prices or exchange rates; except as the case may be in the support or growth of the Surviving Corporation’s core or existing business (which includes the sponsorship of a SPAC as previously disclosed by the Public Company), subject to approval by the Merger Partner; (i) forgive any loans to any Person, including its employees, officers, directors or Affiliate; (j) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify any agreement that terminated any Public Company Lease; (kh) make (i) any capital expenditures or other expenditures with respect to property, plant or equipment or (ii) other material expenditures in excess of $50,000 18,000,000 in the aggregate (for Public Company and its Subsidiaries, taken as a whole, without express written consent of the Merger Partner other than any as set forth in Public Company’s budget for capital expenditures previously made available to Merger Partner or the specific capital expenditures disclosed and set forth in Section 5.02 of the Ordinary Course of Business)Public Company Disclosure Schedule; (li) make any changes in accounting methods, principles or practices, except insofar as may have been required by the SEC or any Canadian Securities Administrators or a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve; (mj) except (i) in the Ordinary Course of Business or (ii) for terminations as a result of the expiration of any contract that expires in accordance with its terms, (iA) modify or amend in any material respect, or terminate, any material contract or agreement to which Public Company or any of its subsidiaries Subsidiaries is party, or (iiB) knowingly waive, release or assign any material rights or claims (including any write-off or other compromise of any accounts receivable of Public Company of any of its subsidiariesSubsidiaries); provided, however, that the Public Company shall, to the extent not delivered prior to the date hereof, deliver a notice of termination under each of the licenses for Intellectual Property set forth in Section 5.02 of the Public Company Disclosure Schedule; (nk) (i) enter into any material contract or agreement, including those agreement relating to the rendering of services or the distribution, sale or marketing by third parties of the products, of, or products licensed by, Public Company or any of its subsidiaries Subsidiaries or (ii) license any material Intellectual Property rights to or from any third party; except as the case may be in the support or growth of the Surviving Corporation’s core or existing business (which includes the sponsorship of a SPAC as previously disclosed by the Public Company); (ol) except as required to comply with a applicable Law or agreements, plans or arrangements existing on the date hereof and disclosed in the Public Company Employee PlanDisclosure Schedules, (i) take any action with respect to, adopt, enter into, terminate (other than terminations for cause) or amend any Public Company Employee Plan (employment, severance or any other employee similar agreement or benefit plan for the benefit or compensation planwelfare of any current or former director, programofficer, policy, agreement employee or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement) consultant or any collective bargaining agreement, (ii) increase in any material respect the compensation (including any compensation opportunities) or fringe benefits of, or pay any material bonus or grant any bonus opportunity to, any director, officer, employee or consultant, (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding equity options or equity-based incentive restricted stock awards, (iv) pay any material benefit not provided for as of the date of this Agreement under any benefit plan under any Public Company Employee Planplan, (v) grant any awards under any Public Company Employee Plan (bonus, incentive, performance or under any other employee benefit or compensation plan, program, policy, agreement plan or arrangement that would have constituted a Public Company Employee Plan had it been or benefit plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in effect on the date of this Agreementany benefit plans or agreements or awards made thereunder), (vi) hire any additional officers or other employees, or any consultants or independent contractors, or (vivii) take any action other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under any Public Company Employee Plan (or under any other employee benefit or compensation plan, programagreement, policy, agreement contract or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement)or benefit plan; (pm) make, make or change or revoke any material Tax election (other than elections made in the Ordinary Course of Business)election, change an annual accounting period, enter into any closing agreement, waive or extend any statute of limitations with respect to Taxes (other than any automatic extension granted in the Ordinary Course of Business and consistent with past custom and practice of Public Company)Taxes, settle or compromise any material Tax liability, claim or assessment, knowingly surrender any right to claim a refund of material Taxes, or amend any income or other material Tax Return; (qn) commence any offering of shares of Public Company Common Stock, including Shares pursuant to any employee stock purchase planEmployee Stock Purchase Plan; (ro) initiate, threaten, compromise or settle any litigation or arbitration proceeding (other than any litigation to enforce its rights under this Agreement), other than a Permitted Settlementproceeding; (sp) open or close any facility or office; (q) fail to use commercially reasonable efforts to maintain insurance at levels substantially comparable to levels existing as of the date of this Agreement; (tr) open or close any facility or office; (u) delay or fail to pay accounts payable and other obligations when duein the Ordinary Course of Business; or (vs) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions or any action that would reasonably be expected to, individually or in the aggregate, make any representation or warranty of Public Company in this Agreement untrue or incorrect in any material respect, or would materially impair, delay or prevent the satisfaction of any conditions in Article VII hereof. If Public Company desires to take an action which would be prohibited pursuant to this Section 5.2 without the consent of Merger Partner, Public Company may request such consent (which consent shall not be unreasonably withheld, conditioned or delayed) by sending an email to the following individuals, which email shall be sufficient notice under this Agreement: Xxxxxx X. Xxxxxxxx and Xxxxxxxx XxXxxxx.

Covenants of Public Company. Except as otherwise contemplated or permitted by this Agreement, as required by applicable law or as set forth in Section 5.2 5.1 of the Public Company Disclosure Schedule Schedule, or as expressly provided herein or as consented to in writing by Merger Partner with Private Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) or to ), during the extent necessary to comply with any applicable Laws, or as required in connection with the Concurrent Financing, from and after period commencing on the date of this Agreement until and ending at the Closing or such earlier of the termination of date on which this Agreement may be terminated in accordance with its terms and (the Effective Time“Pre-Closing Period”), Public Company shall, and shall cause each of its subsidiaries to, use commercially reasonable efforts Subsidiaries to, act and carry on its business in the Ordinary Course of Business, including making such filings as are required by the Securities Act, Exchange Act or as are necessary for the Public Company Common Stock to continue being listed on the NYSE, and using reasonable best efforts to (i) pay its debts as and when they come due, (ii) operate in compliance in all material respects with all applicable Laws and the requirements of all contracts that constitute Public Company Material Contracts or Public Company Leases, and (iii) preserve intact its current business organization and goodwill with all suppliers, customers, landlords, creditors, licensors and licensees. Without limiting the generality of the foregoing, except as otherwise contemplated or permitted by this Agreement, as required by applicable law or by any agreement, plan or arrangement in effect on the date hereof, as set forth in Section 5.2 5.1 of the Public Company Disclosure Schedule, as expressly provided hereinor with Private Company’s consent (which shall not be unreasonably withheld, as required in connection with conditioned or delayed), during the Concurrent Financing, or to the extent necessary to comply with any applicable Law, from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Pre-Closing Period Public Company shall not, and shall not permit any of its subsidiaries Subsidiaries to, directly or indirectly, do any of the following without the prior written consent of Xxxxxx Partner following: NYDOCS02/1142212.8 51 (which consent shall not be unreasonably withheld, conditioned or delayed): a) (i) except as contemplated by the Closing Dividend (as defined below), declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stock; stock (other than dividends and distributions by a direct or indirect wholly owned Subsidiary of Public Company to its parent), (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities, other than in respect of any Public Company Preferred Stock or upon exercise or conversion of any Public Company Stock Option or Public Company Warrant, in each case, outstanding on the date of this Agreement; securities or (iii) purchase, redeem or otherwise acquire any shares of its capital stock or any other of its other securities or any rights, warrants or options to acquire any such shares or other securities, other thanexcept, in the case of this clause (iii), for the acquisition of shares of Public Company Common Stock (A) from former employees, directors and consultants in accordance with holders of Public Company Stock PlansOptions in full or partial payment of the exercise price or (B) from holders of Public Company Stock Options in full or partial payment of any applicable Taxes payable by such holder upon exercise thereof, as in effect as of applicable, to the date of this Agreement; extent required or permitted under the terms thereof; (b) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, in each case other than the issuance of shares of Public Company Common Stock pursuant to the Concurrent Financing, upon the exercise of Public Company Stock Options Options, or Public Company Warrants upon the exercise or conversion vesting of Public Company Preferred Stockany other Equity Based Awards or the Amazon Warrant, or rights under the ESPP, in each case, outstanding case granted under the Public Company Equity Plans that are in effect on the date of this Agreement and in accordance with their present the terms (including cashless exercises); thereof; (c) except as required or appropriate to give effect to anything in contemplation of the Closing, amend its articles certificate of incorporation, bylaws or other comparable charter or organizational documents or effect or be a party to any merger, consolidation, share exchange, business combination, liquidation, dissolution, reorganization, statutory conversion, recapitalization, reclassification of shares, stock split or reverse stock split or form any new subsidiary or acquire any equity interest or other interest in any other Person; documents; (d) acquire (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof or (ii) any assets that are materialassets; in each case, individually (A) in excess of US$100,000 in any single transaction or series of related transactions or if such acquisition would prevent, materially delay or materially impede the satisfaction of the conditions set forth in Section 7.1, other than pursuant to existing contracts or commitments, and (B) except purchases of property, plant and equipment, inventory and raw materials in the aggregate, to Public Company and its subsidiaries, taken as a whole; Ordinary Course of Business; (e) assign, sell, lease, sublease, license, pledge, or otherwise dispose of, encumber or convey any right, title or interest in any of the Public Company Leased Properties or encumber any properties material assets owned, leased or assets material to otherwise operated by Public Company or any of its subsidiaries; Subsidiaries other than in the Ordinary Course of Business; (f) enter into adopt any material transaction; stockholder rights plan; (g) license any material Intellectual Property rights to or from any third party; (h) (i) incur or suffer to exist any indebtedness for borrowed money or guarantee any such indebtedness of another Person, (ii) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of Public Company or any of its subsidiaries, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, (iii) make any loans, advances (other than routine advances letters of credit or similar arrangements issued to employees or for the benefit of suppliers or incurrences of indebtedness under Public Company in the Ordinary Course of Business) or capital contributions to, or investment in, any other Person, other than Public Company or any of its direct or indirect wholly owned subsidiaries or (iv) enter into any hedging agreement or other financial agreement or arrangement designed to protect Public Company or its subsidiaries against fluctuations in commodities prices or exchange rates; (i) forgive any loans to any Person, including its employees, officers, directors or Affiliate; (j) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify any agreement that terminated any Public Company Lease; (k) make (i) any capital expenditures or other expenditures with respect to property, plant or equipment or (ii) other material expenditures in excess of $50,000 in the aggregate (other than any expenditures in the Ordinary Course of Business); (l) make any changes in accounting methods, principles or practices, except insofar as may have been required by the SEC or a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve; (m) except for terminations as a result of the expiration of any contract that expires in accordance with its terms, (i) modify or amend in any material respect, or terminate, any material contract or agreement to which Public Company or any of its subsidiaries is party, or (ii) knowingly waive, release or assign any material rights or claims (including any write-off or other compromise of any accounts receivable of Public Company of any of its subsidiaries); (n) (i) enter into any contract or Company’s existing credit agreement, including those relating to the rendering of services or the distributionin each case, sale or marketing by third parties of the products, of, or products licensed by, Public Company or any of its subsidiaries or (ii) license any Intellectual Property rights to or from any third party; (o) except as required to comply with a Public Company Employee Plan, (i) take any action with respect to, adopt, enter into, terminate (other than terminations for cause) or amend any Public Company Employee Plan (or any other employee benefit or compensation plan, program, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement) or any collective bargaining agreement, (ii) increase the compensation (including any compensation opportunities) or fringe benefits of, or pay any bonus or grant any bonus opportunity to, any director, officer, employee or consultant, (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding equity or equity-based incentive awards, (iv) pay any benefit not provided for as of the date of this Agreement under any benefit plan under any Public Company Employee Plan, (v) grant any awards under any Public Company Employee Plan (or under any other employee benefit or compensation plan, program, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement), or (vi) take any action other than in the Ordinary Course of Business to fund or that would not result in any other way secure the payment of compensation or benefits under any Public Company Employee Plan (or under any other employee benefit or compensation plan, program, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement); (p) make, change or revoke any Tax election (other than elections made in the Ordinary Course of Business), change an annual accounting period, enter into any closing agreement, waive or extend any statute of limitations with respect to Taxes (other than any automatic extension granted in the Ordinary Course of Business and consistent with past custom and practice of Public Company), settle or compromise any material Tax liability, claim or assessment, knowingly surrender any right to claim a refund of material Taxes, or amend any income or other material Tax Return; (q) commence any offering of shares of Public Company Common Stock, including pursuant to any employee stock purchase plan; (r) initiate, threaten, compromise or settle any litigation or arbitration proceeding (other than any litigation to enforce its rights under this Agreement), other than a Permitted Settlement; (s) fail to use commercially reasonable efforts to maintain insurance levels substantially comparable to levels existing as of the date of this Agreement; (t) open or close any facility or office; (u) delay or fail to pay accounts payable and other obligations when due; or (v) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions or any action that would reasonably be expected to, individually or in the aggregate, make any representation or warranty of Public Company in this Agreement untrue or incorrect in any material respect, or would materially impair, delay or prevent the satisfaction of any conditions in Article VII hereof. If Public Company desires to take an action which would be prohibited pursuant to this Section 5.2 without the consent of Merger Partner, Public Company may request such consent (which consent shall not be unreasonably withheld, conditioned or delayed) by sending an email to the following individuals, which email shall be sufficient notice under this Agreement: Xxxxxx X. Xxxxxxxx and Xxxxxxxx XxXxxxxNet Debt exceeding forty-three million four hundred thousand US dollars

Covenants of Public Company. Except as set forth in Section 5.2 of the Public Company Disclosure Schedule or as expressly provided herein or as consented to in writing by Merger Partner (which consent shall not be unreasonably withheld, conditioned or delayed) or to the extent necessary to comply with any applicable Laws, or as required in connection with the Concurrent Financing), from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall, and shall cause each of its subsidiaries to, use commercially reasonable efforts Subsidiaries to, act and carry on its business in the Ordinary Course of Business, pay its debts and Taxes and perform its other obligations when due (subject to good faith disputes over such debts, Taxes or obligations), comply with applicable laws, rules and regulations, and, use commercially reasonable efforts, consistent in all material respects with past practices, to maintain and preserve its and each of its Subsidiaries’ business organization, assets and properties, keep available the services of its present officers and key employees and preserve its advantageous business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it. Without limiting the generality of the foregoing, except as set forth in Section 5.2 of the Public Company Disclosure Schedule, as expressly provided herein, as required in connection with the Concurrent Financing, or to the extent necessary to comply with any applicable Law, Schedule from and after the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, Public Company shall not, and shall not permit any of its subsidiaries Subsidiaries to, directly or indirectly, do any of the following without the prior written consent of Xxxxxx Merger Partner (which consent shall not not, in the case of the actions set forth in clauses (k) and (l) of this Section 5.2, be unreasonably withheld, conditioned or delayed): (a) (i) except as contemplated by the Closing Dividend (as defined below), declare, set aside aside, or pay any dividends on, or make any other distributions (whether in cash, securities securities, or other property) in respect of, any of its capital stock; (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities, other than in respect of any Public Company Preferred Stock or upon exercise or conversion of any Public Company Stock Option or Public Company Warrant, in each case, outstanding on the date of this Agreement; or (iii) purchase, redeem or otherwise acquire any shares of its capital stock or any other of its securities or any rights, warrants or options to acquire any such shares or other securities, other than, in the case of this clause (iiiii), from former employees, directors and consultants in accordance with Public Company Stock Plans, as agreements in effect as of on the date of this AgreementAgreement providing for the repurchase of shares in connection with any termination of services to Public Company or any of its Subsidiaries; (b) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, securities (in each case other than the issuance of shares of Public Company Common Stock pursuant to the Concurrent Financing, upon the exercise of Public Company Stock Options or Public Company Warrants or conversion of Public Company Preferred Stock, in each case, outstanding on the date of this Agreement and set forth in Section 4.2(b) or Section 4.2(c) of the Public Company Disclosure Schedule in accordance with their present terms (including cashless exercises); (c) except as required or appropriate to give effect to anything in contemplation of the Closing, amend its articles certificate of incorporation, bylaws or other comparable charter or organizational documents documents, or effect or be a party to any merger, consolidation, share exchange, business combination, liquidation, dissolution, reorganization, statutory conversion, recapitalization, reclassification of shares, stock split or reverse stock split or form any new subsidiary Subsidiary or acquire any equity interest or other interest in any other Personperson; (d) except for purchases of inventory and raw materials in the Ordinary Course of Business, acquire (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof or (ii) any assets that are material, individually or in the aggregate, to Public Company and its subsidiariesSubsidiaries, taken as a whole; (e) sell, lease, license, pledge, or otherwise dispose of or encumber any properties or assets material to of Public Company or of any of its subsidiariesSubsidiaries; (f) enter into whether or not in the Ordinary Course of Business, sell, dispose of or otherwise transfer any assets material transactionto Public Company and its Subsidiaries, taken as a whole (including any accounts, leases, contracts or Intellectual Property or any assets or the stock of any of its Subsidiaries, but excluding the sale or license of products in the Ordinary Course of Business); (g) license any material Intellectual Property rights to or from any third party; (h) (i) incur or suffer to exist any indebtedness for borrowed money other than such indebtedness that existed as of the date of the Public Company Balance Sheet to the extent reflected on the Public Company Balance Sheet or guarantee any such indebtedness of another Personperson, (ii) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of Public Company or any of its subsidiariesSubsidiaries, guarantee any debt securities of another Personperson, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person person or enter into any arrangement having the economic effect of any of the foregoing, (iii) make any loans, advances (other than routine advances to employees of Public Company in the Ordinary Course of Business) or capital contributions to, or investment in, any other Personperson, other than Public Company or any of its direct or indirect wholly owned subsidiaries Subsidiaries or (iv) enter into any hedging agreement or other financial agreement or arrangement designed to protect Public Company or its subsidiaries Subsidiaries against fluctuations in commodities prices or exchange rates; (i) forgive any loans to any Person, including its employees, officers, directors or Affiliate; (j) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify any agreement that terminated any Public Company Lease; (kh) make (i) any capital expenditures or other expenditures with respect to property, plant or equipment or (ii) other material expenditures in excess of $50,000 100,000 in the aggregate (for Public Company and its Subsidiaries, taken as a whole, other than any as set forth in Public Company’s budget for capital expenditures previously made available to Merger Partner or the specific capital expenditures disclosed and set forth in Section 5.2 of the Ordinary Course of Business)Public Company Disclosure Schedule; (li) make any changes in accounting methods, principles or practices, except insofar as may have been required by the SEC or a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve; (mj) except for (i) in the Ordinary Course of Business or (ii) terminations as a result of the expiration of any contract that expires in accordance with its terms, (iA) modify or amend in any material respect, or terminate, any material contract or agreement to which Public Company or any of its subsidiaries Subsidiaries is party, or (iiB) knowingly waive, release or assign any material rights or claims (including any write-off or other compromise of any accounts receivable of Public Company of any of its subsidiariesSubsidiaries); (nk) (i) enter into any material contract or agreement, including those agreement relating to the rendering of services or the distribution, sale or marketing by third parties of the products, of, or products licensed by, Public Company or any of its subsidiaries Subsidiaries or (ii) license any material Intellectual Property rights to or from any third party; (ol) except as required to comply with a applicable law or agreements, plans or arrangements existing on the date hereof and either disclosed in the Public Company Employee PlanDisclosure Schedules, not required by this Agreement to be so disclosed or disclosed in the Public Company SEC Reports filed or furnished prior to the date of this Agreement,, (i) take any action with respect to, adopt, enter into, terminate (other than terminations for cause) or amend any Public Company Employee Plan (employment, severance or any other employee similar agreement or benefit plan for the benefit or compensation planwelfare of any current or former director, programofficer, policy, agreement employee or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement) consultant or any collective bargaining agreement, (ii) increase in any material respect the compensation (including any compensation opportunities) or fringe benefits of, or pay any material bonus or grant any bonus opportunity to, any director, officer, employee or consultantconsultant (except for annual increases of the salaries of non-officer employees in the Ordinary Course of Business), (iii) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding equity options or equity-based incentive restricted stock awards, (iv) pay any material benefit not provided for as of the date of this Agreement under any benefit plan under any Public Company Employee Planplan, (v) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any benefit plans or agreements or awards made thereunder), (vi) hire any additional officers or other employees, or any consultants or independent contractors, in each case, other than as set forth on Section 5.2(l) of the Public Company Employee Plan (Disclosure Schedules and employees, consultants or under any other employee benefit independent contractors hired to fill open position created as a result of the separation of service of an officer, employee, consultant or compensation planindependent contractor, programas applicable, policy, agreement or arrangement that would have constituted a Public Company Employee Plan had it been in effect on after the date of this Agreement), or (vivii) take any action other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under any Public Company Employee Plan (or under any other employee benefit or compensation plan, programagreement, policy, agreement contract or arrangement that would have constituted a Public Company Employee Plan had it been in effect on the date of this Agreement)or benefit plan; (pm) make, make or change or revoke any material Tax election (other than elections made in the Ordinary Course of Business)election, change an annual accounting period, enter into any closing agreement, waive or extend any statute of limitations with respect to Taxes (other than any automatic extension granted in the Ordinary Course of Business and consistent with past custom and practice of Public Company)Taxes, settle or compromise any material Tax liability, claim or assessment, knowingly surrender any right to claim a refund of material Taxes, or amend any income or other material Tax Return; (qn) commence any offering of shares of Public Company Common Stock, including Stock pursuant to any employee stock purchase planEmployee Stock Purchase Plan; (ro) initiate, threaten, compromise or settle any material litigation or arbitration proceeding (other than any litigation to enforce its rights under this Agreement), other than a Permitted Settlementproceeding; (sp) open or close any facility or office; (q) fail to use commercially reasonable efforts to maintain insurance at levels substantially comparable to levels existing as of the date of this Agreement; (tr) open or close any facility or office; (u) delay or fail to pay accounts payable and other obligations when duein the Ordinary Course of Business; (s) suspend any clinical trials sponsored by Public Company or involving any products marketed or in development by Public Company; or (vt) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions or any action that would reasonably be expected to, individually or in the aggregate, make any representation or warranty of Public Company in this Agreement untrue or incorrect in any material respect, or would materially impair, delay or prevent the satisfaction of any conditions in Article VII hereof. If Public Company desires to take an action which would be prohibited pursuant to this Section 5.2 without the consent of Merger Partner, Public Company may request such consent (which consent shall not be unreasonably withheld, conditioned or delayed) by sending an email to the following individuals, which email shall be sufficient notice under this Agreement: Xxxxxx X. Xxxxxxxx and Xxxxxxxx XxXxxxx.