Common use of Operation of Parent’s Business Clause in Contracts

Operation of Parent’s Business. (a) During the Pre-Closing Period: (i) Parent shall ensure that it conducts its business and operations (A) in the ordinary course and in accordance with past practices and (B) in substantial compliance with all applicable Legal Requirements and the material requirements of all material contracts; and (ii) Parent shall use commercially reasonable efforts to ensure that it preserves intact its current business organization, keeps available the services of its current officers and other employees and maintains its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with Parent. By way of amplification and without limitation, neither Parent nor any of its subsidiaries shall, between the date hereof and the Effective Time, directly or indirectly do, or propose to do, any of the following without the prior written consent of Company: (i) amend or otherwise change the Certificate of Incorporation or Bylaws or equivalent organizational document of Parent or any of its subsidiaries or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure of Parent; (ii) amend the terms of, repurchase, redeem or otherwise acquire, or permit any Subsidiary to repurchase, redeem or otherwise acquire, any of its securities or any securities of its Subsidiaries; or propose to do any of the foregoing; (iii) (x) acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or (y) otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of Parent or enter into any joint ventures, strategic partnerships or alliances, in the case of both (x) and (y), where such acquisition or agreement is reasonably likely to materially delay consummation of the Merger or materially adversely affect Parent's ability to consummate the Merger; (iv) adopt a plan of complete or partial liquidation or dissolution of Parent; (v) fail to make in a timely manner any material filings with the SEC required under the Securities Act or the Exchange Act or the rules or regulations promulgated thereunder; or (vi) agree in writing or otherwise to take any of the actions described in Section 4.4(a)(i) through (v) above. (b) During the Pre-Closing Period, Parent shall promptly notify the Company in writing of: (i) the discovery by Parent of any event, condition, fact or circumstance that occurred or existed on or prior to the date of this Agreement and that caused or constitutes a material inaccuracy in any representation or warranty made by Parent in this Agreement; (ii) any event, condition, fact or circumstance that occurs, arises or exists after the date of this Agreement and that would cause or constitute a material inaccuracy in any representation or warranty made by Parent in this Agreement if (A) such representation or warranty had been made as of the time of the occurrence, existence or discovery of such event, condition, fact or circumstance, or (B) such event, condition, fact or circumstance had occurred, arisen or existed on or prior to the date of this Agreement; (iii) any material breach of any covenant or obligation of Parent; and (iv) any event, condition, fact or circumstance that would make the timely satisfaction of any of the conditions set forth in Section 6 or Section 7 impossible or unlikely or that has had or could reasonably be expected to have a Material Adverse Effect on Parent. Without limiting the generality of the foregoing, Parent shall promptly advise the Company in writing of any Legal Proceeding or material claim overtly threatened, commenced or asserted against or with respect to Parent. No notification given to the Company pursuant to this Section 4.4(b) shall limit or otherwise affect any of the representations, warranties, covenants or obligations of Parent contained in this Agreement.

Operation of Parent’s Business. (a) During the Pre-Closing Period, Parent shall: (i) Parent shall ensure that it conducts its business and operations (A) comply in the ordinary course and in accordance with past practices and (B) in substantial compliance all material respects with all applicable Legal Requirements and the material requirements of all material contractsRequirements; and (ii) promptly notify the Company of: (A) any written notice or other communication received by an officer of Parent shall use commercially reasonable efforts to ensure or of which any officer of Parent has Knowledge from any Person alleging that it preserves intact its current business organization, keeps available the services Consent of its current officers and other employees and maintains its relations and goodwill such Person is or may be required in connection with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with Parent. By way of amplification and without limitation, neither Parent nor any of its subsidiaries shall, between the date hereof and the Effective Time, directly or indirectly do, or propose to do, any of the following transactions contemplated by this Agreement; and (B) any Legal Proceeding against or involving Parent that is commenced, or, to Parent’s Knowledge, threatened. Notwithstanding the generality of the foregoing, during the Pre-Closing Period, Parent shall not, except as otherwise expressly contemplated by this Agreement or the Creditor Plan, without the prior written consent of the Company: (ia) amend the Parent Constituent Documents; (b) split, combine, redeem 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; (c) accelerate, amend or change the period of exercisability or vesting of any options exercisable for Parent Common Stock or other rights granted under its Parent Stock Option Plans or authorize cash payments in exchange for any options or other rights granted under any of such plans; (d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise change the Certificate with respect to any of Incorporation or Bylaws or equivalent organizational document its capital stock; (e) issue any shares of capital stock of Parent or any of its subsidiaries securities convertible into, or alter through mergersubscriptions, liquidationrights, reorganizationwarrants or options to acquire, restructuring or in enter into any other fashion agreements or commitments of any character obligating it to issue any such shares or other convertible securities; provided, however, that Parent may issue shares of Parent Common Stock in connection with the corporate structure exercise of ParentParent stock options or warrants and pursuant to the Creditors Plan; (iif) amend the terms ofincur, repurchasecreate, redeem increase, assume or otherwise acquirebecome liable for any indebtedness, or permit any Subsidiary to repurchaseassume, redeem guarantee, endorse or otherwise acquireas an accommodation become responsible or liable for the material obligations of any Person, any of its securities or any securities of its Subsidiaries; or propose except pursuant to do any of the foregoingCreditors Plan; (iiig) materially reduce or increase the amount of any insurance coverage provided by existing insurance policies other than upon the expiration of any such policy or obtain additional material insurance coverage not in effect as of the date hereof; (xh) enter into any agreement or modify any agreement that provides for, grants or pays any bonus, salary increase, severance or termination pay or other benefits to any director, officer, consultant or employee of Parent, or otherwise increase the compensation or benefits provided to any director, officer, consultant or employee, except in each case for payments and benefits made pursuant to agreements existing as of the date of this Agreement; (i) make or change any Tax election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax other than as provided in Section 5.7; (j) acquire or agree to acquire by merging consolidate or consolidating merge with, or by purchasing any equity interest in or purchase a substantial portion of the stock or assets of, or by any other manner, any Person, business or any corporationentity (k) directly or indirectly sell, partnershiptransfer, association pledge or otherwise create any Encumbrance (other business organization than a Permitted Encumbrance) on or division thereofotherwise dispose of, or (y) otherwise acquire waive, release or agree assign any rights or claims with respect to acquire any assets which are material, individually or in the aggregate, to the business of Parent or enter into any joint ventures, strategic partnerships or alliances, in the case of both (x) and (y), where such acquisition or agreement is reasonably likely to materially delay consummation of the Merger or materially adversely affect Parent's ability to consummate the MergerIP; (ivl) adopt a plan sell, assign, license, abandon, allow to lapse, allow to be dedicated to the public domain, or otherwise dispose of complete or partial liquidation or dissolution of Parent; (v) fail to make in a timely manner any material filings with the SEC required under the Securities Act or the Exchange Act or the rules or regulations promulgated thereunderParent IP; or (vim) agree in writing or otherwise commit to take any of the actions described in clauses “(a)” through “(l)” of this Section 4.4(a)(i) through (v) above. (b) During 4.2. Nothing contained in this Agreement is intended to provide the Pre-Closing PeriodCompany, Parent shall promptly notify the Company in writing of: (i) the discovery by Parent of any eventdirectly or indirectly, condition, fact rights to control or circumstance that occurred direct Parent’s or existed on or Merger Sub’s operations prior to the date of this Agreement and that caused or constitutes a material inaccuracy in any representation or warranty made by Parent in this Agreement; (ii) any event, condition, fact or circumstance that occurs, arises or exists after the date of this Agreement and that would cause or constitute a material inaccuracy in any representation or warranty made by Parent in this Agreement if (A) such representation or warranty had been made as of the time of the occurrence, existence or discovery of such event, condition, fact or circumstance, or (B) such event, condition, fact or circumstance had occurred, arisen or existed on or prior Effective Time. Prior to the date Effective Time, Parent and Merger Sub, respectively, shall exercise, subject to the terms and conditions of this Agreement; (iii) any material breach , complete control and supervision of any covenant or obligation of Parent; and (iv) any event, condition, fact or circumstance that would make the timely satisfaction of any of the conditions set forth in Section 6 or Section 7 impossible or unlikely or that has had or could reasonably be expected to have a Material Adverse Effect on Parent. Without limiting the generality of the foregoing, Parent shall promptly advise the Company in writing of any Legal Proceeding or material claim overtly threatened, commenced or asserted against or with respect to Parent. No notification given to the Company pursuant to this Section 4.4(b) shall limit or otherwise affect any of the representations, warranties, covenants or obligations of Parent contained in this Agreementtheir operations.

Operation of Parent’s Business. (a) During the Pre-Closing Period: , except as (ix) set forth in Part 5.2(b) of the Parent Disclosure Schedule, (y) required or specifically permitted under this Agreement, or (z) required by applicable Law, Parent shall ensure that it conducts not, and shall cause its business and operations (A) in the ordinary course and in accordance with past practices and (B) in substantial compliance with all applicable Legal Requirements and the material requirements of all material contracts; and (ii) Parent shall use commercially reasonable efforts to ensure that it preserves intact its current business organizationwholly owned Subsidiaries, keeps available the services of its current officers and other employees and maintains its relations and goodwill with all suppliersincluding Merger Sub, customersnot to, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with Parent. By way of amplification and without limitation, neither Parent nor any of its subsidiaries shall, between the date hereof and the Effective Time, directly or indirectly do, or propose to do, any of the following without the prior written consent of Company:the Company (such consent not to be unreasonably withheld, delayed or conditioned): (i) amend declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock; (ii) amend, or propose or agree to amend, Parent’s or its Subsidiaries’ certificate of incorporation or bylaws in any manner that would adversely affect the consummation of the Merger or adversely affect the holders of Shares whose shares are converted into Parent Common Stock at the Effective Time in a manner different from holders of Parent Common Stock prior to the Effective Time; (iii) purchase, redeem or otherwise change acquire any shares of its capital stock or any other equity securities thereof or any rights, warrants or options to acquire any such shares or other securities, except for purchases, redemptions or other acquisitions of capital stock or other equity securities (1) required by the Certificate terms of Incorporation Parent’s stock plans or Bylaws equity award plans, (2) required by the terms of any plans, arrangements or equivalent organizational document Contracts existing on the date hereof between Parent or any of its Subsidiaries and any director, officer or employee of Parent or any of its subsidiaries Subsidiaries or alter through merger, liquidation, reorganization, restructuring (3) which would not reasonably be expected to materially delay or in any other fashion impede the corporate structure consummation of Parentthe Merger; (ii) amend the terms of, repurchase, redeem or otherwise acquire, or permit any Subsidiary to repurchase, redeem or otherwise acquire, any of its securities or any securities of its Subsidiaries; or propose to do any of the foregoing; (iii) (xiv) acquire (by merger, consolidation or agree to acquire by merging acquisition of stock or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or assets) any corporation, partnership, association partnership or other business organization or division thereof, or (y) otherwise acquire dispose of assets or agree to acquire any assets which are material, individually or in the aggregate, to the business securities of Parent or enter into any joint venturesits Subsidiaries, strategic partnerships or alliances, in the case of both (x) and (y), where if such acquisition or agreement is disposition would reasonably likely be expected to materially delay or impede the consummation of the Merger or materially adversely affect Parent's ability to consummate the Merger; (iv) adopt a plan of complete or partial liquidation or dissolution of Parent; (v) fail take or omit to make in a timely manner take any material filings with action to cause the SEC required under Parent Common Stock to cease to be eligible for listing on the Securities Act or the Exchange Act or the rules or regulations promulgated thereunderNASDAQ; or (vi) agree in writing or otherwise commit to take any of the foregoing actions described in Section 4.4(a)(iclauses (i) through (v) above. (b) During the Pre-Closing Period, Parent shall promptly notify the Company in writing of: (i) the discovery by Parent of any event, condition, fact or circumstance that occurred or existed on or prior to the date of this Agreement and that caused or constitutes a material inaccuracy in any representation or warranty made by Parent in this Agreement; (ii) any event, condition, fact or circumstance that occurs, arises or exists after the date of this Agreement and that would cause or constitute a material inaccuracy in any representation or warranty made by Parent in this Agreement if (A) such representation or warranty had been made as of the time of the occurrence, existence or discovery of such event, condition, fact or circumstance, or (B) such event, condition, fact or circumstance had occurred, arisen or existed on or prior to the date of this Agreement; (iii) any material breach of any covenant or obligation of Parent; and (iv) any event, condition, fact or circumstance that would make the timely satisfaction of any of the conditions set forth in Section 6 or Section 7 impossible or unlikely or that has had or could reasonably be expected to have a Material Adverse Effect on Parent. Without limiting the generality of the foregoing, Parent shall promptly advise the Company in writing of any Legal Proceeding or material claim overtly threatened, commenced or asserted against or with respect to Parent. No notification given to the Company pursuant to this Section 4.4(b) shall limit or otherwise affect any of the representations, warranties, covenants or obligations of Parent contained in this Agreement5.2(b).

Operation of Parent’s Business. (a) During Except as contemplated by this Agreement, during the Pre-Closing Period: (i) period from the date of this Agreement to the Effective Time, the Parent shall ensure that it conducts (and shall cause each Subsidiary to) conduct its business and operations (A) in the ordinary course Ordinary Course of Business and in accordance with past practices and (B) in substantial compliance with all applicable Legal Requirements laws and regulations and, to the material requirements of all material contracts; and (ii) Parent shall extent consistent therewith, use commercially reasonable efforts its Reasonable Best Efforts to ensure that it preserves preserve intact its current business organization, keeps keep its physical assets in good working condition, keep available the services of its current officers and other employees and maintains preserve its relations and goodwill relationships with all suppliers, customers, landlords, creditors, licensors, licensees, employees suppliers and other Persons others having business relationships dealings with Parentit to the end that its goodwill and ongoing business shall not be impaired in any material respect. By way Without limiting the generality of amplification and without limitationthe foregoing, neither Parent nor any of its subsidiaries shall, between the date hereof and prior to the Effective Time, directly or indirectly dothe Parent shall not (and shall cause each Subsidiary not to), or propose to do, any of the following without the prior written consent of the Company: (ia) amend issue or otherwise change sell, or redeem or repurchase, any stock or other securities of the Certificate of Incorporation or Bylaws or equivalent organizational document of Parent or any of its subsidiaries rights, warrants or alter through mergeroptions to acquire any such stock or other securities, liquidationexcept as contemplated by, reorganizationand in connection with, restructuring or in any other fashion the corporate structure of ParentPrivate Placement Offering and the Merger; (iib) split, combine or reclassify any shares of its capital stock; declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, except as contemplated by, and in connection with, the Stock Split; (c) create, incur or assume any indebtedness (including obligations in respect of capital leases); assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person or entity; or make any loans, advances or capital contributions to, or investments in, any other person or entity; (d) enter into, adopt or amend any Employee Benefit Plan or any employment or severance agreement or arrangement or (except for normal increases in the Ordinary Course of Business for employees who are not Affiliates) increase in any manner the compensation or fringe benefits of, or materially modify the employment terms of, repurchaseits directors, redeem officers or otherwise acquireemployees, generally or individually, or permit pay any Subsidiary bonus or other benefit to repurchaseits directors, redeem officers or otherwise acquireemployees, any except for the adoption of its securities or any securities Parent Option Plan covering 5,698,823 shares of its Subsidiaries; or propose to do any of Parent Common Stock in connection with the foregoingMerger; (iiie) acquire, sell, lease, license or dispose of any assets or property (x) acquire including without limitation any shares or agree to acquire by merging or consolidating with, or by purchasing any other equity interest interests in or a portion securities of the assets of, or by any other manner, any business Parent Subsidiary or any corporation, partnership, association or other business organization or division thereof), other than purchases and sales of assets in the Ordinary Course of Business, except as contemplated by, and in connection with, the Split-Off; (f) mortgage or pledge any of its property or assets or subject any such property or assets to any Security Interest; (g) discharge or satisfy any Security Interest or pay any obligation or liability other than in the Ordinary Course of Business; (h) amend its charter, by-laws or other organizational documents; (i) change in any material respect its accounting methods, principles or practices, except insofar as may be required by a generally applicable change in GAAP; (j) enter into, amend, terminate, take or omit to take any action that would constitute a violation of or default under, or waive any rights under, any material contract or agreement; (yk) otherwise acquire institute or agree settle any Legal Proceeding; (l) take any action or fail to acquire take any assets which are material, individually action permitted by this Agreement with the knowledge that such action or failure to take action would result in (i) any of the aggregate, representations and warranties of the Parent and/or the Acquisition Subsidiary set forth in this Agreement becoming untrue or (ii) any of the conditions to the business of Parent Merger set forth in Article V not being satisfied; (m) make or change any Tax election, change any annual tax accounting period, adopt or change any tax accounting method, file any amended Tax Return, enter into any joint venturesclosing agreement, strategic partnerships settle any Tax claim or alliancesassessment relating to the Company, surrender any right to claim refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company, or, other than in the case ordinary course of both (x) and (y)business, where such acquisition take any other action or agreement is reasonably likely omit to materially delay consummation take any action that would have the effect of increasing the Tax liability of the Merger Parent; or materially adversely affect Parent's ability to consummate the Merger; (iv) adopt a plan of complete or partial liquidation or dissolution of Parent; (v) fail to make in a timely manner any material filings with the SEC required under the Securities Act or the Exchange Act or the rules or regulations promulgated thereunder; or (vin) agree in writing or otherwise to take any of the actions described in Section 4.4(a)(i) through (v) aboveforegoing actions. (b) During the Pre-Closing Period, Parent shall promptly notify the Company in writing of: (i) the discovery by Parent of any event, condition, fact or circumstance that occurred or existed on or prior to the date of this Agreement and that caused or constitutes a material inaccuracy in any representation or warranty made by Parent in this Agreement; (ii) any event, condition, fact or circumstance that occurs, arises or exists after the date of this Agreement and that would cause or constitute a material inaccuracy in any representation or warranty made by Parent in this Agreement if (A) such representation or warranty had been made as of the time of the occurrence, existence or discovery of such event, condition, fact or circumstance, or (B) such event, condition, fact or circumstance had occurred, arisen or existed on or prior to the date of this Agreement; (iii) any material breach of any covenant or obligation of Parent; and (iv) any event, condition, fact or circumstance that would make the timely satisfaction of any of the conditions set forth in Section 6 or Section 7 impossible or unlikely or that has had or could reasonably be expected to have a Material Adverse Effect on Parent. Without limiting the generality of the foregoing, Parent shall promptly advise the Company in writing of any Legal Proceeding or material claim overtly threatened, commenced or asserted against or with respect to Parent. No notification given to the Company pursuant to this Section 4.4(b) shall limit or otherwise affect any of the representations, warranties, covenants or obligations of Parent contained in this Agreement.

Operation of Parent’s Business. (aA) During the Pre-Closing Period: (i) Parent shall ensure that it conducts its business and operations (A) in the ordinary course and in accordance with past practices and (B) in substantial compliance with all applicable Legal Requirements and the material requirements of all material contractspractices; and (ii) Parent shall use commercially reasonable efforts promptly notify the Company of any material Legal Proceeding commenced, or, to ensure that it preserves intact its current business organizationKnowledge threatened against, keeps available the services relating to or involving or otherwise affecting any of Parent or any of its current officers and other employees and maintains its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with ParentSubsidiaries that relates to the consummation of the transactions contemplated by this Agreement. By way of amplification and without limitationWithout limiting the foregoing, neither Parent nor any of its subsidiaries Subsidiaries shall, between the date hereof and the Effective TimeTime of Merger I, directly or indirectly do, or propose to do, any of the following without the prior written consent of Company:Company (which consent shall not be unreasonably withheld): (iI) amend or otherwise change the Certificate of Incorporation or Bylaws or equivalent organizational document documents of Parent or any in a manner that adversely affects the rights of its subsidiaries or alter through mergerholders of Parent Common Stock (including holders of the Parent Common Stock issuable in Merger I), liquidation, reorganization, restructuring or in any other fashion except to increase the corporate structure authorized number of Parentshares of Parent capital stock (including Parent Common Stock); (iiII) amend issue any shares of Parent Common Stock if, following such issuance, there would be an insufficient number of shares of Parent Common Stock to pay the terms of, repurchase, redeem or otherwise acquire, or permit any Subsidiary to repurchase, redeem or otherwise acquire, any of its securities or any securities of its Subsidiaries; or propose to do any of the foregoingStock Consideration; (iiiIII) (x) acquire declare, set aside, make or agree to acquire by merging or consolidating with, or by purchasing pay any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association dividend or other business organization distribution, payable in cash, stock property or division thereofotherwise, or (y) otherwise acquire or agree with respect to acquire any assets which are material, individually or in the aggregate, to the business of Parent or enter into any joint ventures, strategic partnerships or alliances, in the case of both (x) and (y), where such acquisition or agreement is reasonably likely to materially delay consummation of the Merger or materially adversely affect Parent's ability to consummate the Mergercapital stock; (ivIV) adopt a plan of complete or partial liquidation or dissolution of Parent; (vV) fail to make in a timely manner any material filings with the SEC required under the Securities Act or the Exchange Act or the rules or regulations promulgated thereunder; (VI) acquire, or agree to acquire, any entity that competes with the Company if any such action would be reasonably likely to prevent or materially delay consummation of the transaction contemplated by this Agreement on antitrust grounds; or (viVII) agree in writing or otherwise to take any of the actions described in Section 4.4(a)(i4.5(a)(i) through (vvi) above. (b) During the Pre-Closing Period, Parent shall promptly notify the Company in writing of: (i) the discovery by Parent of any event, condition, fact or circumstance that occurred or existed on or prior to the date of this Agreement and that caused or constitutes a material inaccuracy in any representation or warranty made by Parent in this Agreement; (ii) any event, condition, fact or circumstance that occurs, arises or exists after the date of this Agreement and that would cause or constitute a material inaccuracy in any representation or warranty made by Parent in this Agreement if (A) such representation or warranty had been made as of the time of the occurrence, existence or discovery of such event, condition, fact or circumstance, or (B) such event, condition, fact or circumstance had occurred, arisen or existed on or prior to the date of this Agreement; (iii) any material breach of any covenant or obligation of Parent; and (iv) any event, condition, fact or circumstance that would make the timely satisfaction of any of the conditions set forth in Section 6 or Section 7 impossible or unlikely or that has had or could reasonably be expected to have a Material Adverse Effect on Parent. Without limiting the generality of the foregoing, Parent shall promptly advise the Company in writing of any Legal Proceeding or material claim overtly threatened, commenced or asserted against or with respect to Parent. No notification given to the Company pursuant to this Section 4.4(b) shall limit or otherwise affect any of the representations, warranties, covenants or obligations of Parent contained in this Agreement.