Common use of Operation of the Businesses of the Acquired Companies Clause in Contracts

Operation of the Businesses of the Acquired Companies. (a) Until the Closing, except as otherwise set forth in this Agreement or Section 5.2(a) of the Seller Disclosure Schedule, required by Law or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller will cause the Acquired Companies to conduct their business in the ordinary course of business in substantially the same manner as heretofore conducted, and, to the extent consistent therewith, use commercially reasonable efforts to preserve the relationships of the Acquired Companies with their customers, suppliers, distributors, licensors, licensees, and others doing business with them and to preserve the goodwill and ongoing operations of the Acquired Companies. (b) Until the Closing, except as otherwise set forth in this Agreement or Section 5.2(b) of the Seller Disclosure Schedule or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller will not cause or permit any Acquired Company to: (i) amend its Organizational Documents; (ii) issue, sell or pledge additional shares of its capital stock or securities convertible into any such shares, or any options, warrants or rights to acquire any such shares or other convertible securities; (iii) purchase, redeem or otherwise acquire any outstanding shares of its capital stock; (iv) declare, set aside or pay any dividend or other distribution in respect of its capital stock, other than in cash in the ordinary course of business in connection with the Company’s cash management practices; (v) pay, discharge, waive or satisfy, any Indebtedness other than in the ordinary course of business; (vi) adopt or change accounting methods or practices (including any change in depreciation or amortization policies), except as required by GAAP or applicable Law; (vii) make or change any Tax election, adopt or change any Tax accounting method, enter into any closing agreement with respect to Taxes, settle or compromise any material Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment or file any material Tax Return or any amended Tax Return unless a copy of such Tax Return has been delivered to the Purchaser for review a reasonable time prior to filing; (viii) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement; (ix) incur any Indebtedness, guarantee any Indebtedness of any Person, issue or sell any debt securities, or guarantee any debt securities of any Person; (x) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation against the Company involving an amount in dispute greater than US Dollars 50,000; (xi) 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 or terminate any of the terms of any Real Property Leases; (xii) terminate or materially and adversely amend any Material Contract; (xiii) waive or release any right or claim of a material value to the Acquired Companies other than in the ordinary course of business; (xiv) sell, lease or license, or permit any Encumbrance on, any material portion of its assets other than in the ordinary course of business; (xv) acquire, by merger or consolidation with, or by purchase of all or a substantial portion of the assets or stock of, or by any other manner, any business or entity, or enter into any joint venture, partnership or other similar arrangement for the conduct of its business; (xvi) change in any material respect the remuneration or terms of employment of any of its Employees or make offers to employ or engage any other personnel (other than to replace any Employees who have resigned or served or been served with notice to end their employment) other than (A) in the ordinary course of business, (B) as required by Law or (C) for retention, incentive and similar payments relating to the consummation of the transactions contemplated by this Agreement; (xvii) except in cooperation with the Purchaser, make any representations regarding offers of employment from the Purchaser or the terms thereof; (xviii) alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which any Acquired Company directly or indirectly holds any interest; (xix) cancel, amend or renew any insurance policy; or (xx) agree in writing to take any of the foregoing actions.

Operation of the Businesses of the Acquired Companies. (a) Until Between the Closing, except as otherwise set forth in date of this Agreement or Section 5.2(a) of and the Seller Disclosure ScheduleClosing Date, required by Law or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheldSellers will, conditioned or delayed), the Seller and will cause the Acquired Companies to conduct their business in the ordinary course of business in substantially the same manner as heretofore conducted, and, to the extent consistent therewith, use commercially reasonable efforts to preserve the relationships of the Acquired Companies with their customers, suppliers, distributors, licensors, licensees, and others doing business with them and to preserve the goodwill and ongoing operations of the Acquired Companies. (b) Until the Closing, except as otherwise set forth in this Agreement or Section 5.2(b) of the Seller Disclosure Schedule or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller will not cause or permit any each Acquired Company to: (ia) amend its Organizational Documentsconduct the business of such Acquired Company only in the Ordinary Course of Business; (iib) issueuse their commercially reasonable efforts to preserve intact the current business organization of such Acquired Company, sell or pledge additional shares keep available the services of its capital stock or securities convertible into any the current officers, employees, and agents of such sharesAcquired Company, or any optionsand maintain the relations and good will with suppliers, warrants or rights to acquire any customers, landlords, creditors, employees, agents, and others having business relationships with such shares or other convertible securitiesAcquired Company; (iiic) purchase, redeem or otherwise acquire any outstanding shares confer with Buyer concerning operational matters of its capital stocka material nature; (ivd) declare, set aside or pay any dividend or other distribution in respect of its capital stock, other than in cash in the ordinary course of business in connection comply with the Company’s cash management practicesLegal Requirements and Governmental Authorizations; (ve) pay, discharge, waive or satisfy, any Indebtedness other than in make no capital expenditures without the ordinary course written consent of businessBuyer; (vif) adopt or change accounting methods or practices (including any change maintain all buildings, equipment and tangible property in depreciation or amortization policies)good repair, except as required by GAAP or applicable Lawconsistent with past practice; (viig) make or change any Tax election, adopt or change any Tax accounting method, enter into any closing agreement with respect to Taxes, settle or compromise any material Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment or file any material Tax Return or any amended Tax Return unless a copy of such Tax Return has been delivered to the Purchaser all payments called for review a reasonable time prior to filing; (viii) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement; (ix) incur any Indebtedness, guarantee any Indebtedness of any Person, issue or sell any debt securities, or guarantee any debt securities of any Person; (x) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation against the Company involving an amount in dispute greater than US Dollars 50,000; (xi) 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 lease or other occupancy agreement with respect sublease relating to any real property leased, subleased or alter, amend, modify or terminate licensed by any of the terms Acquired Companies and maintain any such leases, subleases and licenses in force through the Closing Date and will not permit any of the Acquired Companies to commit any Real Property Leasesdefault under any of such leases, subleases or licenses or to amend or surrender any of such leases, subleases or licenses prior to the Closing Date; (xiih) terminate or materially continue to prepare monthly and adversely amend any Material Contract;year-to-date financial statements, consistent with those dated February 28, 2005, and deliver to Buyer such financial statements within thirty (30) days of each calendar month end prior to the Closing Date; and (xiiii) waive or release any right or claim of a material value otherwise report periodically to Buyer concerning the Acquired Companies other than in the ordinary course of business; (xiv) sell, lease or license, or permit any Encumbrance on, any material portion of its assets other than in the ordinary course of business; (xv) acquire, by merger or consolidation with, or by purchase of all or a substantial portion status of the assets or stock of, or by any other manner, any business or entity, or enter into any joint venture, partnership or other similar arrangement for the conduct of its business; (xvi) change in any material respect the remuneration or terms of employment of any of its Employees or make offers to employ or engage any other personnel (other than to replace any Employees who have resigned or served or been served with notice to end their employment) other than (A) in the ordinary course of business, (B) as required by Law or (C) for retentionoperations, incentive and similar payments relating to the consummation finances of the transactions contemplated by this Agreement; (xvii) except in cooperation with the Purchaser, make any representations regarding offers of employment from the Purchaser or the terms thereof; (xviii) alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which any such Acquired Company directly or indirectly holds any interest; (xix) cancel, amend or renew any insurance policy; or (xx) agree in writing to take any of the foregoing actionsCompany.

Operation of the Businesses of the Acquired Companies. (a) Until From the Closingdate of this Agreement until the earlier of the Closing Date and the termination of this Agreement in accordance with the provisions of Section 7 hereof, the Seller shall cause each of the Acquired Companies to, except as otherwise expressly required by this Agreement or to the extent that the Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) (i) conduct its business in the Ordinary Course of Business in all material respects, (ii) use commercially reasonable efforts to preserve intact its present business organization and capital structure, and keep available the services of its present key employees, and (iii) use its commercially reasonable efforts to maintain satisfactory relationships with its customers, distributors, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, and except for matters set forth in this Agreement or Section 5.2(a) Part 4.2 of the Seller Disclosure Schedule, required by Law Schedule or as otherwise consented to expressly required by this Agreement, without the prior written consent of the Purchaser (which consent will shall not be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement to the Closing Date (or the earlier termination of this Agreement in accordance with the provisions of Section 7 hereof), the Seller will shall not, and the Seller shall not cause or permit any of the Acquired Companies, to: (a) adopt any change in their respective Organizational Documents (whether by merger, consolidation or otherwise) or effect any split, combination, reclassification or similar action with respect to the Shares; (i) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) directly or indirectly, any assets, securities, properties, interests, or businesses (or any division thereof) of any Person except for acquisitions of inventory, equipment and raw materials in the Ordinary Course of Business, or (ii) make any loan, advance or capital contribution to, acquire any securities in, or otherwise make any investment in, any Person), except in each case, any such transactions between any of the Acquired Companies; (c) repay, prepay or otherwise discharge or satisfy any Indebtedness or other material Liabilities, other than in the Ordinary Course of Business and other than Intercompany Accounts Payable and Intercompany Indebtedness, or waive, cancel or assign any claims or rights of substantial value other than in the Ordinary Course of Business; (d) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any Indebtedness, including entering into additional capital leases; (e) make any declaration or payment of, or set aside funds for, any dividend or other distribution with respect to any of the Company Securities (other than cash dividends and cash distributions by an Acquired Company to another Acquired Company); (f) sell, abandon, lease or otherwise transfer, or create or incur any Encumbrance (other than a Permitted Encumbrance) on, any assets, properties, interests or businesses of the Acquired Companies, other than (i) in the Ordinary Course of Business, (ii) such transactions between any of the Acquired Companies, (iii) pursuant to any Material Contract as in effect as of the date of this Agreement, and (iv) as required by applicable Legal Requirement or any Governmental Body in order to permit or facilitate the consummation of the Transactions; (g) transfer, issue, sell, dispose of, pledge or encumber the Shares or any other Equity Interests; (h) make any capital expenditures that are in the aggregate in excess of $50,000 individually and $100,000 in the aggregate; (i) modify, enter into, terminate or amend, or give notice of non-renewal, cancellation or termination of any Contract with any officer or director of any of the Acquired Companies; (i) other than in the Ordinary Course of Business, or except to the extent automatically renewed, extended or expired pursuant to its terms, renew, extend, amend or terminate any Material Contract or (ii) other than in the Ordinary Course of Business, enter into any new Contract that would have been considered a Material Contract if it were entered into at or prior to the date hereof, (iii) waive any term of or any material default under, or release, settle or compromise any material claim against the Acquired Companies to conduct their business in the ordinary course of business in substantially the same manner as heretofore conducted, and, or liability or obligation owing to the extent consistent therewithAcquired Companies under, use commercially reasonable efforts to preserve the relationships any Material Contract, (iv) enter into any Contract which contains a change of control or similar provision, (v) enter into any Contract which includes obligations of the Acquired Companies under a non-solicitation or non-competition provision or (vi) renew or extend (except to the extent the existing contract is deemed, by a court or third party having authority to make such determination, to remain in full force and effect), or amend or otherwise modify, the Material Contract listed as Item 47 in Part 2.14(a)(i) of the Disclosure Schedule; (k) enter into any Contract with their customersrespect to the voting of any Shares; (l) issue or offer to issue any Company Securities, suppliersor redeem, distributorsrepurchase or otherwise acquire or offer to redeem, licensorsrepurchase, licenseesor otherwise acquire, and others doing any Company Securities or amend any terms of any outstanding Company Securities; (m) settle, agree to settle, compromise, or release, dismiss, or otherwise dispose of any Proceeding (i) involving payments by or to any Acquired Company of more than $50,000 individually, or $100,000 in the aggregate, including, for the avoidance of doubt, the pending dispute set forth under Item 9 in Part 2.5 of the Disclosure Schedule, (ii) that admits liability or consents to non-monetary relief, or (iii) that otherwise are or would reasonably be expected to be material to the business with them and to preserve the goodwill and ongoing or operations of the Acquired Companies. (b) Until the Closing, except taken as otherwise set forth in this Agreement or Section 5.2(b) of the Seller Disclosure Schedule or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller will not cause or permit any Acquired Company to: (i) amend its Organizational Documentsa whole; (iin) issueother than with respect to any change for a Pre-Closing Tax Period in a method of accounting which is a result of Hologic, sell Inc.’s acquisition of the Seller, make, change or pledge additional shares revoke any material income Tax election; elect or change any method of its capital stock accounting for Tax purposes; settle any Proceeding or securities convertible into any such shares, or any options, warrants or rights to acquire any such shares or other convertible securities; (iii) purchase, redeem or otherwise acquire any outstanding shares of its capital stock; (iv) declare, set aside or pay any dividend or other distribution claim in respect of its capital stock, other than in cash in Taxes of the ordinary course of business in connection Acquired Companies; file any amended Tax Return with the Company’s cash management practices; (v) pay, discharge, waive or satisfy, respect to any Indebtedness other than in the ordinary course of business; (vi) adopt or change accounting methods or practices (including any change in depreciation or amortization policies), except as required by GAAP or applicable Law; (vii) make or change any Tax election, adopt or change any Tax accounting method, Tax; enter into any closing agreement with respect to Taxes, settle or compromise any material Tax; surrender any right to claim a material Tax claim refund; or assessmententer into any Contract in respect of Taxes with any Governmental Body; (o) make any material change in its financial accounting methods or method of Tax accounting, consent to any extension principles or waiver practices materially affecting the reported consolidated assets, liabilities or results of operations of the limitation period applicable Acquired Companies, except to any material Tax claim or assessment or file any material Tax Return or any amended Tax Return unless a copy the extent such changes have been made by Hologic, Inc. in respect of such Tax Return has been delivered its controlled Affiliates generally; provided that the Seller shall give prior notice to the Purchaser for review a reasonable time prior to filingof any such material change and shall consult with the Purchaser regarding the impact of such change on the Acquired Companies; (viiip) make any loan to any Person adopt or purchase debt securities enter into a plan of complete or partial liquidation or dissolution of any Person of the Acquired Companies (other than inactive or amend shell subsidiaries that are immaterial), or enter into a letter of intent or agreement in principle or other Contract with respect thereto; (q) other than as required by applicable Legal Requirements or by the terms of any outstanding loan agreementCompany Employee Plan or Contract existing in writing on the date hereof, (i) increase, make any material change in, or accelerate the vesting of, the compensation payable or to become payable or benefits to, grant any severance or termination pay to, or increase the base salary, wages, bonuses, incentive or other compensation or other benefits of any of its current or former officers, agents or Company Employees (except in connection with the hiring of any person as an employee of any of the Acquired Companies) or (ii) adopt, amend, terminate or modify any Company Employee Plan or Company Employee Agreement; (ixr) incur announce, implement or effect any Indebtednessreduction in labor force, guarantee any Indebtedness lay-off program, early retirement program, severance program or other program or effort concerning the termination of employment of employees of any Personof the Acquired Companies; (s) write up or write down any of its material assets, issue or sell any debt securitiesproperties, or guarantee interests or revalue its inventory outside the Ordinary Course of Business of the Acquired Companies; (t) open any debt securities facility or enter into any new line of business or close any Personfacility or discontinue any line of business or any material business operations; (u) enter into any Contract for any sales of products, goods or services that is outside the Ordinary Course of Business; (v) enter into any Contract that limits or otherwise restricts the Acquired Companies or any successor thereto from engaging or competing in any line of business or geographic area in which such Person engages in as of the date hereof, other than modifications, renewals or extensions of agreements or arrangements (provided that such modifications, renewals or extensions do not increase limitations or restrictions on business) existing as of the date hereof; (w) fail to pay any fee, fail to renew, allow to expire or lapse, take any action, protect any trade secret, or make any filing reasonably necessary to maintain its ownership of the Intellectual Property Rights owned by an Acquired Company; (x) commence or settle take any lawsuit, threat action outside the Ordinary Course of any lawsuit or proceeding or other investigation against Business the Company involving an amount in dispute greater than US Dollars 50,000primary purpose of which is to achieve the applicable Performance Payment thresholds; (xiy) 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 collective bargaining or other occupancy agreement with a labor union or works council or other employee representative; (z) initiate any Proceeding with respect to any real property the pending dispute set forth under Item 9 in Part 2.5 of the Disclosure Schedule; or alter(aa) authorize, amend, modify agree or terminate commit to do any of the terms foregoing. Nothing contained in this Agreement is intended to give the Purchaser, directly or indirectly, the right to control or direct the operations of any Real Property Leases; (xii) terminate or materially and adversely amend any Material Contract; (xiii) waive or release any right or claim of a material value to the Acquired Companies other than in prior to the ordinary course of business; (xiv) sellClosing. Prior to the Closing, lease or license, or permit any Encumbrance on, any material portion of its assets other than in the ordinary course of business; (xv) acquire, by merger or consolidation with, or by purchase of all or a substantial portion each of the assets or stock ofAcquired Companies shall exercise, or by any other manner, any business or entity, or enter into any joint venture, partnership or other similar arrangement for consistent with the conduct terms and conditions of its business; (xvi) change in any material respect the remuneration or terms of employment of any of its Employees or make offers to employ or engage any other personnel (other than to replace any Employees who have resigned or served or been served with notice to end their employment) other than (A) in the ordinary course of business, (B) as required by Law or (C) for retention, incentive and similar payments relating to the consummation of the transactions contemplated by this Agreement; (xvii) except in cooperation with the Purchaser, make any representations regarding offers of employment from the Purchaser or the terms thereof; (xviii) alter, or enter into any commitment to alter, complete control and supervision over its interest in any corporation, association, joint venture, partnership or business entity in which any Acquired Company directly or indirectly holds any interest; (xix) cancel, amend or renew any insurance policy; or (xx) agree in writing to take any of the foregoing actionsrespective operations.

Operation of the Businesses of the Acquired Companies. i. Between the date of this Agreement and the Closing Date and except as either (a) Until the Closing, except as otherwise set forth in this Agreement or Section 5.2(a) of the Seller Seller's Disclosure Schedule, required by Law including the Intercompany Transactions set forth in Section 6.b.i. of Seller's Disclosure Schedule, (b) contemplated pursuant to the terms hereof or as (c) otherwise consented to in writing by the Purchaser (which consent will not be unreasonably withheldBuyer, conditioned or delayed)Seller will, the Seller and will cause the Acquired Companies to conduct their business in the ordinary course of business in substantially the same manner as heretofore conducted, and, to the extent consistent therewith, use commercially reasonable efforts to preserve the relationships of the Acquired Companies with their customers, suppliers, distributors, licensors, licensees, and others doing business with them and to preserve the goodwill and ongoing operations of the Acquired Companies. (b) Until the Closing, except as otherwise set forth in this Agreement or Section 5.2(b) of the Seller Disclosure Schedule or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller will not cause or permit any each Acquired Company to: (i1) amend its Organizational Documentsconduct the business of such Acquired Company in accordance with the Ordinary Course of Business; (ii2) issueuse its Best Reasonable Efforts to preserve intact the current business organization of such Acquired Company and maintain the relations and good will with suppliers, sell or pledge additional shares customers, lessors and Employees of its capital stock or securities convertible into such Acquired Company and any such shares, or any options, warrants or rights to acquire any such shares or other convertible securitiesTransferred Employees; (iii3) purchase, redeem or otherwise acquire any outstanding shares confer with Buyer concerning operational matters of its capital stocka material nature; (iv4) declareotherwise report periodically to Buyer concerning the status of the business, set aside or pay any dividend or other distribution in respect operations, and finances of its capital stock, other than in cash in the ordinary course of business in connection with the Company’s cash management practices;Acquired Companies; and (v5) paynot, dischargewithout the prior written consent of Buyer, waive take any affirmative action, or satisfyfail to take any reasonable action within their or its control, which results in any Indebtedness other than of the changes or events listed in the ordinary course of business; (vi) adopt or change accounting methods or practices (including any change in depreciation or amortization policies), except as required by GAAP or applicable Law; (vii) make or change any Tax election, adopt or change any Tax accounting method, enter into any closing agreement Section 3.k. with respect to Taxesthe Acquired Companies. ii. Notwithstanding the foregoing, settle on or compromise any material Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment or file any material Tax Return or any amended Tax Return unless a copy of such Tax Return has been delivered prior to the Purchaser for review a reasonable time prior Closing Date, Seller will use its Best Reasonable Efforts to filing; cause certain employees of Seller's Parent or its Affiliates (viiiother than the Acquired Companies) make any loan as listed in Section 6.b.ii. of Seller's Disclosure Schedule (the "TRANSFERRED EMPLOYEES"), to any Person the extent such employees are then employed by Seller's Parent or purchase debt securities of any Person or amend the terms of any outstanding loan agreement; (ix) incur any Indebtednessits Affiliates, guarantee any Indebtedness of any Person, issue or sell any debt securities, or guarantee any debt securities of any Person; (x) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation against the Company involving an amount in dispute greater than US Dollars 50,000; (xi) 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 or terminate any of the terms of any Real Property Leases; (xii) terminate or materially and adversely amend any Material Contract; (xiii) waive or release any right or claim of a material value be transferred to the Acquired Companies other than and employed by one or more of the Acquired Companies, so that the Transferred Employees will be employees as of the Closing Date. (1) The Seller shall cause the Acquired Companies, prior to the Closing Date, to proceed diligently with capital improvements to the assets of the Acquired Companies in accordance with an expected capital budget of $500,000 per month (the "MONTHLY CAPITAL BUDGET") in each case upon request of management of the Company (each a "CAPITAL IMPROVEMENT"). (2) As part of preparation of the Working Capital Statement pursuant to Section 2.e.ii., and in accordance with the procedures set forth therein, Seller shall cause Seller's Accountants to determine the aggregate actual amount Seller or Seller's Acquired Companies have paid in connection with Capital Improvements during the period beginning on the date hereof and ending on the Closing Date, excluding any Capital Improvement for which there is an accrued liability as of the date hereof ("ACTUAL PRE-CLOSING CAPITAL EXPENDITURES"). Seller shall concurrently with the delivery to Buyer of the Working Capital Statement give notice to Buyer which notice (the "CAPITAL EXPENDITURE NOTICE") shall set forth the difference between (i) the aggregate of the Monthly Capital Budgets of $500,000 for each month (or pro rata portion thereof) between the date hereof and the Closing Date (the "AGGREGATE CAPITAL BUDGET") and (ii) the Actual Pre-Closing Capital Expenditures as determined by Seller's Accountants. If the Aggregate Capital Budget is in excess of the Actual Pre-Closing Capital Expenditures (the "CAPITAL EXPENDITURE SHORTFALL AMOUNT"), then Seller shall pay to Buyer the Capital Expenditure Shortfall Amount at the time the payments referred to in Section 2.e.ii. are made. If the Actual Pre-Closing Capital Expenditures are in excess of the Aggregate Capital Budget (the "CAPITAL EXPENDITURE SURPLUS AMOUNT"), then Buyer shall pay the Seller the Capital Expenditure Surplus Amount at the time the payments referred to in Section 2.e.ii. are made, excluding any capital expenditures for which approval was required under Section 6.b.iii.(3), but not obtained by Seller. All payments will be made together with interest per annum at the prime rate as published in the ordinary course Wall Street Journal on the Closing Date for the Period beginning on the Closing Date and ending on the date of business;payment. Any dispute regarding any amount described in this Section 6.b.iii. shall be resolved in accordance with the procedures set forth in Section 2.e.i. (xiv3) sellBetween the date of this Agreement and the Closing Date, lease or licenseand except as either (a) set forth in Section 3.k.iv. of Seller's Disclosure Schedule, or permit (b) otherwise consented to in writing by Buyer, Seller will not approve any Encumbrance on, any material portion capital expenditures in excess of its assets other than the Monthly Capital Budget of $500,000 where such capital expenditures exceed $50,000 individually or cumulatively $250,000 in the ordinary course of business; (xv) acquire, by merger or consolidation with, or by purchase of all or a substantial portion of the assets or stock of, or by any other manner, any business or entity, or enter into any joint venture, partnership or other similar arrangement for the conduct of its business; (xvi) change in any material respect the remuneration or terms of employment of any of its Employees or make offers to employ or engage any other personnel (other than to replace any Employees who have resigned or served or been served with notice to end their employment) other than (A) in the ordinary course of business, (B) as required by Law or (C) for retention, incentive and similar payments relating to the consummation of the transactions contemplated by this Agreement; (xvii) except in cooperation with the Purchaser, make any representations regarding offers of employment from the Purchaser or the terms thereof; (xviii) alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which any Acquired Company directly or indirectly holds any interest; (xix) cancel, amend or renew any insurance policy; or (xx) agree in writing to take any of the foregoing actionsaggregate.

Operation of the Businesses of the Acquired Companies. Between the date of this Agreement and the Closing Date, except for actions taken in connection with (i) the Restructuring, (ii) the Excluded Operations, (iii) this Agreement, (iv) the transfer of Acquired Theatres between Acquired Companies, and (v) the Contemplated Transactions, Seller and the Company will, and will cause each Acquired Company, and any Excluded Subsidiary that owns or holds one or more Acquired Theatres (and then only as to such Acquired Theatres), to: (a) Until conduct the Closing, except as otherwise set forth in this Agreement business of such Acquired Company or Section 5.2(a) of the Seller Disclosure Schedule, required by Law or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller will cause the Acquired Companies to conduct their business Excluded Subsidiary only in the ordinary course Ordinary Course of business in substantially the same manner as heretofore conducted, and, to the extent consistent therewith, use commercially reasonable efforts to preserve the relationships of the Acquired Companies with their customers, suppliers, distributors, licensors, licensees, and others doing business with them and to preserve the goodwill and ongoing operations of the Acquired Companies.Business; (b) Until use their reasonable best efforts to preserve intact the Closingcurrent business organization of such Acquired Company or Excluded Subsidiary, keep available the services of the Transferred Employees, and maintain the relations and goodwill with suppliers, customers, landlords, creditors, Transferred Employees, agents, and others having business relationships with such Acquired Company or Excluded Subsidiary; or (c) except as otherwise set forth in may be expressly permitted by this Agreement or Section 5.2(b) of the Seller Disclosure Schedule or as otherwise consented agreed to in writing by the Purchaser (which consent will Buyer, not be unreasonably withheld, conditioned or delayed), the Seller will not cause or permit any such Acquired Company or Excluded Subsidiary, where applicable, to: (i) amend its Organizational Documents; (ii) issue, sell incur any Debt other than Debt that constitutes a current liability or pledge additional indebtedness incurred to an Affiliate; (iii) issue or propose the issuance of any shares of its capital stock or any class of securities convertible into any such sharesinto, or any optionsrights, warrants or rights options to acquire acquire, any such shares or convertible securities other convertible securities; (iii) purchase, redeem or otherwise acquire any outstanding shares of its capital stockthan to capitalize Debt; (iv) sell or transfer any of its inventory, except in the Ordinary Course of Business; (v) change its method of accounting or any accounting principle, method, estimate or practice, except in the Ordinary Course of Business or as may be required by a Legal Requirement or GAAP; (vi) terminate or materially amend (x) any Acquired Lease, except in the Ordinary Course of Business or (y) any Material Contract with respect to any Acquired Theatre, except in the Ordinary Course of Business or in connection with the Restructuring; (vii) declare, set aside or pay any dividend or other distribution in respect of its capital stock, other than in cash in the ordinary course of business in connection with the Company’s cash management practices; (v) pay, discharge, waive or satisfy, any Indebtedness other than in the ordinary course of business; (vi) adopt or change accounting methods or practices (including any change in depreciation or amortization policies), except as required by GAAP or applicable Law; (vii) make or change any Tax election, adopt or change any Tax accounting method, enter into any closing agreement with respect to Taxes, settle or compromise any material Tax claim or assessment, consent its capital stock other than a dividend to any extension or waiver of distribute cash and cash equivalents held by the limitation period applicable to any material Tax claim or assessment or file any material Tax Return or any amended Tax Return unless a copy of such Tax Return has been delivered Acquired Companies to the Purchaser for review a reasonable time prior to filingSeller as contemplated by Section 2.5(a) of this Agreement; (viii) make enter into any loan to any Person transactions with or purchase debt securities on behalf of any Person Affiliate (except the Company or amend any Subsidiary of the terms Company) or engage in any transaction, or enter into any agreement, arrangement, or understanding with, directly or indirectly, any Affiliate (except the Company or any Subsidiary of the Company) except (A) in the Ordinary Course of Business (B) to discharge Debt or (C) to discharge any outstanding loan agreementguarantees or Encumbrances of the Acquired Companies and Acquired Theatres under Seller's credit facilities; (ixa) incur enter into any Indebtednessemployment agreement or (b) pay, guarantee other than in the Ordinary Course of Business, any Indebtedness of bonus to any Person, issue Transferred Employee or sell grant any debt securities, or guarantee Transferred Employee any debt securities of other increase in compensation in any Personform; (x) commence make any single capital expenditure in excess of $500,000 except (A) as already approved by the Board of Directors of such Acquired Company prior to the date of this Agreement or settle any lawsuit, threat of any lawsuit or proceeding or other investigation against the Company involving an amount in dispute greater than US Dollars 50,000;(B) for capital expenditures relating to Excluded Theatres; or (xi) enter into any agreement to purchase agree 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 or terminate any of the terms of any Real Property Leases; (xii) terminate or materially and adversely amend any Material Contract; (xiii) waive or release any right or claim of a material value to the Acquired Companies other than in the ordinary course of business; (xiv) sell, lease or license, or permit any Encumbrance on, any material portion of its assets other than in the ordinary course of business; (xv) acquire, by merger or consolidation with, or by purchase of all or a substantial portion of the assets or stock of, or by any other manner, any business or entity, or enter into any joint venture, partnership or other similar arrangement for the conduct of its business; (xvi) change in any material respect the remuneration or terms of employment of any of its Employees or make offers to employ or engage any other personnel (other than to replace any Employees who have resigned or served or been served with notice to end their employment) other than (A) in the ordinary course of business, (B) as required by Law or (C) for retention, incentive and similar payments relating to the consummation of the transactions contemplated by this Agreement; (xvii) except in cooperation with the Purchaser, make any representations regarding offers of employment from the Purchaser or the terms thereof; (xviii) alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which any Acquired Company directly or indirectly holds any interest; (xix) cancel, amend or renew any insurance policy; or (xx) agree in writing otherwise commit to take any of the actions proscribed by the foregoing actionsparagraphs (i) through (x).

Operation of the Businesses of the Acquired Companies. (a) Until Between the Closing, except as otherwise set forth in date of this Agreement or Section 5.2(a) of and the Seller Disclosure ScheduleClosing Date, required by Law or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheldCIC will, conditioned or delayed), the Seller and will cause the Acquired Companies to conduct their business in the ordinary course of business in substantially the same manner as heretofore conducted, and, to the extent consistent therewith, use commercially reasonable efforts to preserve the relationships of the Acquired Companies with their customers, suppliers, distributors, licensors, licensees, and others doing business with them and to preserve the goodwill and ongoing operations of the Acquired Companies. (b) Until the Closing, except as otherwise set forth in this Agreement or Section 5.2(b) of the Seller Disclosure Schedule or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller will not cause or permit any each Acquired Company to: (ia) amend its Organizational Documentsexcept for the actions contemplated in Sections 5.3 and 5.4 below, conduct the business of such Acquired Company only in the Ordinary Course of Business; (iib) issueuse its commercially reasonable efforts to preserve intact the current business organization of such Acquired Company, sell or pledge additional shares keep available the services of its capital stock or securities convertible into any the current officers, employees, and agents of such sharesAcquired Company, or any optionsand maintain the relations and good will with suppliers, warrants or rights to acquire any customers, landlords, creditors, employees, agents, and others having business relationships with such shares or other convertible securitiesAcquired Company; (iiic) purchase, redeem or otherwise acquire any outstanding shares use its commercially reasonable efforts to continue to promote and sell its products and services in the Ordinary Course of its capital stockBusiness; (ivd) declare, set aside or pay any dividend or other distribution in respect confer with PAS concerning operational matters of its capital stock, other than in cash in the ordinary course of business in connection with the Company’s cash management practicesa material nature; (ve) payseek written approval of PAS prior to negotiating, discharge, waive amending or satisfy, exercising any Indebtedness other than in the ordinary course of business; (vi) adopt or change accounting methods or practices (including any change in depreciation or amortization policies), except as required by GAAP or applicable Law; (vii) make or change any Tax election, adopt or change any Tax accounting method, enter into any closing agreement contractual rights with respect to Taxesthe Gene Deal property in Ontario, settle Ohio or compromise the purchase of property at 0000 Xxxxxx Xxxx, Xxxxxxx Xxxxx and to cooperate with PAS, at PAS’s request, in negotiating, amending or exercising rights with respect to such properties; provided however, in the event the Contemplated Transactions do not close, PAS agrees to reimburse CIC for any material Tax claim administrative or assessmentlegal costs or expenses CIC incurred, consent at PAS’s request, to negotiate, amend or exercise such rights and indemnify CIC for any extension or waiver loss it incurs as a result of complying with PAS’ requests; and (f) provide PAS (i) on a daily basis with the limitation period applicable to any material Tax claim or assessment or file any material Tax Return or any amended Tax Return unless daily sales flash report, showing month-to-date and year-to-date hard case sales volume, and net selling price, with comparisons vs. prior year and plan (if available), (ii) on a monthly basis, 10 business days after the preceding month end, a copy of such Tax Return has been delivered to the Purchaser internal financial statements for review a reasonable time prior to filing; (viii) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement; (ix) incur any Indebtedness, guarantee any Indebtedness of any Person, issue or sell any debt securities, or guarantee any debt securities of any Person; (x) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation against the Company involving an amount in dispute greater than US Dollars 50,000; (xi) 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 or terminate any of the terms of any Real Property Leases; (xii) terminate or materially and adversely amend any Material Contract; (xiii) waive or release any right or claim of a material value to the Acquired Companies other than in the ordinary course of business; and (xiv) sell, lease or license, or permit any Encumbrance on, any material portion of its assets other than in the ordinary course of business; (xv) acquire, by merger or consolidation with, or by purchase of all or a substantial portion of the assets or stock of, or by any other manner, any business or entity, or enter into any joint venture, partnership or other similar arrangement for the conduct of its business; (xvi) change in any material respect the remuneration or terms of employment of any of its Employees or make offers to employ or engage any other personnel (other than to replace any Employees who have resigned or served or been served with notice to end their employment) other than (A) in the ordinary course of business, (Biii) as required by Law or (C) for retentionapplicable, incentive and similar payments relating to the consummation of the transactions contemplated by this Agreement; (xvii) except in cooperation with the Purchaser, make information about any representations regarding offers of employment from the Purchaser or the terms thereof; (xviii) alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which any Acquired Company directly or indirectly holds any interest; (xix) cancel, amend or renew any insurance policy; or (xx) agree in writing to take any of the foregoing actionsproposed capital expenditure over $100,000.

Operation of the Businesses of the Acquired Companies. (a) Until Prior to the Closing, except as otherwise set forth in this Agreement or Section 5.2(a) of the Seller Disclosure Schedule, required by Law or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed)Closing Date, the Seller will cause the Acquired Companies to conduct their business in the ordinary course of business in substantially the same manner as heretofore conducted, and, to the extent consistent therewith, use commercially reasonable efforts to preserve the relationships of the Acquired Companies with their customers, suppliers, distributors, licensors, licenseesFounder shall, and others doing business with them and to preserve the goodwill and ongoing operations of the Acquired Companies. (b) Until the Closing, except as otherwise set forth in this Agreement or Section 5.2(b) of the Seller Disclosure Schedule or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller will not shall cause or permit any each Acquired Company to: (ia) amend its Organizational DocumentsConduct the business of such Acquired Company only in the Ordinary Course of Business; (iib) issueUse its best efforts to preserve intact the current business organization of such Acquired Company, sell or pledge additional shares keep available the services of the officers, employees, and agents of such Acquired Company, and maintain its capital stock or securities convertible into any relations and goodwill with suppliers, customers, landlords, creditors, employees, agents, and others having business relationships with such shares, or any options, warrants or rights to acquire any such shares or other convertible securitiesAcquired Company; (iiic) purchase, redeem or otherwise acquire any outstanding shares Confer with Buyer prior to implementing operational decisions of its capital stocka material nature; (ivd) declareReport to Buyer at such times as Buyer may reasonably request concerning the status of the business, condition (financial or otherwise), assets, results of operations, or prospects of such Acquired Company; (e) Make no material changes in management personnel of such Acquired Company; (f) Maintain the assets owned or used by such Acquired Company in a state of repair and condition that complies with Legal Requirements and Contracts and is consistent with the requirements and normal conduct of the business of such Acquired Company; (g) Keep in full force and effect, without amendment, all material rights relating to the business of such Acquired Company; (h) Comply with all Legal Requirements applicable to, and all Applicable Contracts of, such Acquired Company; (i) Continue in full force and effect the insurance coverage under the policies set aside forth in Schedule 3.18 or substantially equivalent policies; (j) Except as required to comply with ERISA or to maintain qualification under Section 401(a) of the Code, not amend, modify, or terminate any Employee Plan and, except as required under the provisions of any Employee Plan, not make any contributions to or with respect to any Employee Plan; (k) Maintain all records of such Acquired Company consistent with past practice; (l) Except as set forth on Schedule 5.02(l), make no dividends or distributions to shareholders or incur or pay any dividend or other distribution in respect of its capital stockoutstanding indebtedness, other than in cash indebtedness arising in the ordinary course of business in connection with the Company’s cash management practices;business, in the nature of rent payments and accounts payable; and (vm) pay, discharge, waive or satisfy, any Indebtedness other than in the ordinary course of business; (vi) adopt or change accounting methods or practices (including any change in depreciation or amortization policies), except as required by GAAP or applicable Law; (vii) make or change any Tax election, adopt or change any Tax accounting method, enter into any closing agreement with respect to Taxes, settle or compromise any material Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment or file any material Tax Return or any amended Tax Return unless a copy of such Tax Return has been delivered to the Purchaser for review a reasonable time prior to filing; (viii) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement; (ix) incur any Indebtedness, guarantee any Indebtedness of any Person, issue or sell any debt securitiesTake no action, or guarantee fail to take any debt securities reasonable action within its control, as a result of any Person; (x) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation against the Company involving an amount in dispute greater than US Dollars 50,000; (xi) 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 or terminate which any of the terms of any Real Property Leases; (xii) terminate changes or materially and adversely amend any Material Contract; (xiii) waive or release any right or claim of a material value events listed in Section 3.16 would be likely to the Acquired Companies other than in the ordinary course of business; (xiv) sell, lease or license, or permit any Encumbrance on, any material portion of its assets other than in the ordinary course of business; (xv) acquire, by merger or consolidation with, or by purchase of all or a substantial portion of the assets or stock of, or by any other manner, any business or entity, or enter into any joint venture, partnership or other similar arrangement for the conduct of its business; (xvi) change in any material respect the remuneration or terms of employment of any of its Employees or make offers to employ or engage any other personnel (other than to replace any Employees who have resigned or served or been served with notice to end their employment) other than (A) in the ordinary course of business, (B) as required by Law or (C) for retention, incentive and similar payments relating to the consummation of the transactions contemplated by this Agreement; (xvii) except in cooperation with the Purchaser, make any representations regarding offers of employment from the Purchaser or the terms thereof; (xviii) alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which any Acquired Company directly or indirectly holds any interest; (xix) cancel, amend or renew any insurance policy; or (xx) agree in writing to take any of the foregoing actionsoccur.

Operation of the Businesses of the Acquired Companies. (a) Until the Closing, except as (i) may be required by Law, (ii) otherwise set forth in this Agreement or Section 5.2(a) of the Seller Disclosure Schedule, required by Law or as (iii) otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller will cause the Acquired Companies to conduct their business in the ordinary course of business consistent with past practice in substantially the same manner as heretofore conducted, and, to the extent consistent therewith, all material respects and use their commercially reasonable efforts to keep available the services of their employees and to preserve the their relationships of the Acquired Companies with their customers, suppliers, distributors, licensors, licensees, customers and others doing business with them and to preserve the goodwill and ongoing operations of the Acquired Companiesthem. (b) Until the Closing, except as (i) may be required by Law, (ii) otherwise set forth in this Agreement or Section 5.2(b) of the Seller Disclosure Schedule Schedule, or as (iii) otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller will not cause or permit any Acquired Company to: (i) amend its Organizational Governing Documents; (ii) issue, sell or pledge additional shares of its capital stock or securities convertible into any such shares, or any options, warrants or rights to acquire any such shares or other convertible securities; (iii) purchase, redeem or otherwise acquire any outstanding shares of its capital stock; (iv) declare, set aside or pay any dividend or other distribution in respect of its capital stock, other than dividends and other distributions payable solely in cash cash; (v) incur any Indebtedness in excess of $50,000 individually or $100,000 in the aggregate, except for Indebtedness to Seller or its Affiliates incurred in the ordinary course of business consistent with past practice in connection with the Company’s cash management practices; (v) pay, discharge, waive or satisfy, any Indebtedness other than in the ordinary course of businessall material respects; (vi) adopt or change accounting methods or practices (including any change in depreciation or amortization policies), except as required by GAAP or applicable Law; (vii) make or change any Tax election, adopt or change any Tax accounting method, enter into any closing agreement with respect to Taxes, settle or compromise any material Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment or file any material Tax Return or any amended Tax Return unless a copy of such Tax Return has been delivered to the Purchaser for review a reasonable time prior to filing; (viii) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement; (ix) incur any Indebtedness, guarantee any Indebtedness of any Person, issue or sell any debt securities, or guarantee any debt securities of any Person; (x) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation against the Company involving an amount in dispute greater than US Dollars 50,000; (xi) 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 or terminate any of the terms of any Real Property Leases; (xii) terminate or materially and adversely amend any Material Contract, other than terminations or amendments deemed by an Acquired Company, in its reasonable discretion, to be in the best interests of the business; (xiiivii) waive or release any right or claim of a material value to the Acquired Companies Companies, other than in the ordinary course of businessbusiness consistent with past practice in all material respects; (xivviii) sell, lease or license, or permit any Encumbrance on, any material portion of its assets other than in the ordinary course of businessbusiness consistent with past practice in all material respects; (xvix) acquire, by merger or consolidation with, or by purchase of all or a substantial portion of the assets or stock of, or by any other manner, any business or entity, or enter into any joint venture, partnership or other similar arrangement for the conduct of its business; (xvix) materially change in any material respect the remuneration or terms of employment of any of its Employees management employees or make offers grant any payment of severance or any bonus to employ any employee, director or engage any other personnel (other than to replace any Employees who have resigned or served or been served with notice to end their employment) consultant of the Acquired Companies other than (A) in the ordinary course of businessbusiness consistent with past practice, (B) as required by Law or (C) for retention, incentive and similar payments relating to the consummation as required by any applicable Contract in effect as of the transactions contemplated by this Agreementdate hereof; (xviixi) except in cooperation with the Purchaser, make any representations regarding offers of employment from the Purchaser or as may be required by the terms thereofof any Company Plan or Law or as may be of general applicability to all Company Plan participants, adopt or modify a Company Plan in any material respect; (xviiixii) alterterminate, demote, constructively terminate or enter into otherwise cause the cessation of employment of any commitment senior management employee of an Acquired Company, unless it reasonably determines that it is in the Acquired Company’s best interest to alter, its interest in any corporation, association, joint venture, partnership or business entity in which any Acquired Company directly or indirectly holds any interestdo so; (xixxiii) cancelmake any material change to its accounting (including Tax accounting) methods, amend principles or renew practices, except as may be required by GAAP or applicable Law; (xiv) make any insurance policycapital expenditures for additions to property, plant or equipment in excess of $10,000 per project or $100,000 in aggregate; (xv) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collection of receivables (whether or not past due) or fail to pay or delay payment of payables or other Liabilities, in each case, in any material respect; or (xxxvi) authorize or agree in writing to take any of the foregoing actions.

Operation of the Businesses of the Acquired Companies. (a) Until the Closing, except as otherwise set forth in this Agreement or Section 5.2(a) of the Seller Disclosure ScheduleAgreement, required by Law or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller will cause the Acquired Companies to conduct their business in the ordinary course of business in substantially the same manner as heretofore conducted, and, to the extent consistent therewith, use commercially reasonable efforts to preserve the relationships of the Acquired Companies with their customers, suppliers, distributors, licensors, licensees, and others doing business with them and to preserve the goodwill and ongoing operations of the Acquired Companies. (b) Until the Closing, except as otherwise set forth in this Agreement or Section 5.2(b) of the Seller Disclosure Schedule or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Sellers will cause the Acquired Companies to: (i) conduct their business in the ordinary course of business in all material respects; and (ii) use their commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and employees) and goodwill of the Acquired Companies and (B) preserve the present relationships with Persons having business dealings with the Acquired Companies (including customers and suppliers). (b) Until the Closing, except as otherwise set forth in this Agreement, the Seller Disclosure Schedule or as otherwise consented to in writing by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Sellers will not cause or permit any Acquired Company to: (i) amend its Organizational Governing Documents; (ii) transfer, issue, sell sell, dispose or, pledge or pledge additional encumber any shares of its capital stock or securities convertible into any such shares, or any options, warrants or rights to acquire any such shares or other convertible securities; (iii) with respect to the Sellers, transfer, issue, sell, dispose or, pledge or encumber any Shares, MX Shares or any additional shares of capital stock of any Acquired Company or securities convertible into any such shares, or any options, warrants or rights to acquire any such shares or other convertible securities of any Acquired Company; (iv) purchase, redeem or otherwise acquire any outstanding shares of its capital stock; (ivv) declare, set aside or pay any dividend or other distribution in respect of its capital stock, other than dividends and other distributions payable solely in cash in the ordinary course of business in connection with the Company’s cash management practicescash; (vvi) payeffect any recapitalization, dischargereclassification, stock split, combination or like change in the capitalization of the Acquired Companies, or amend the terms of any outstanding securities of an Acquired Company; (vii) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract or satisfyReal Property Lease, any Indebtedness other than in the ordinary course of business; business or (viB) adopt or change accounting methods or practices (including any change in depreciation or amortization policies), except as required by GAAP or applicable Law; (vii) make or change any Tax election, adopt or change any Tax accounting method, enter into any closing agreement with respect to Taxes, settle or compromise any material Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment or file any material Tax Return or any amended Tax Return unless a copy of such Tax Return has been delivered to the Purchaser for review a reasonable time prior to filingGovernmental Authorization; (viii) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement; (ix) incur any Indebtednesswaive, guarantee any Indebtedness of any Personcompromise, issue or sell any debt securities, or guarantee any debt securities of any Person; (x) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation against the Company involving an amount in dispute greater than US Dollars 50,000; (xi) 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 or terminate any of the terms of any Real Property Leases; (xii) terminate or materially and adversely amend any Material Contract; (xiii) waive cancel or release any debt, right or claim of a material value to the Acquired Companies other than in the ordinary course of business; (xivix) acquire, by merger or consolidation with another entity, by purchase or otherwise, any material properties or assets or sell, assign, license, transfer, convey, lease or licenseotherwise dispose of any of the material properties or assets of, or permit any Encumbrance onused by, any material portion of its assets the Acquired Companies, other than in the ordinary course of business; (xvx) acquire, by merger or consolidation with, or by purchase except as provided for under the terms of all or a substantial portion this Agreement in relation to the transfer of the assets or stock ofMain Scheme, or by any other manner, any business or entity, or enter into any joint venture, partnership or other similar arrangement for the conduct of its business; (xvi) change in any material respect the remuneration or terms of employment of any of its Employees or make offers to employ or engage any other personnel (other than to replace any Employees who have resigned or served or been served with notice to end their employment) other than (A) increase the salary or other compensation of any director, officer or employee of the Acquired Companies, except for normal yearend increases in the ordinary course of business, (B) as required by Law grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any director, officer, employee or consultant, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for retentiondisability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Acquired Companies or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any deferred compensation, severance, special pay, consulting, non- competition or similar agreement or arrangement with any directors, officers or employees of an Acquired Company (or amend any such agreement to which the Acquired Companies is a party); (xi) (A) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness from third parties who are not Affiliates which borrowing exceed $100,000; (xii) enter into any commitment for capital expenditures of the Acquired Companies in excess of $100,000 for any individual commitment and similar payments relating $200,000 for all commitments in the aggregate; (xiii) enter into, modify or terminate any labor or collective bargaining agreement of the Acquired Companies or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the consummation Acquired Companies; (xiv) except for transfers of cash pursuant to normal cash management practices in the ordinary course of business, make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with any Related Persons; (xv) make a change in its accounting or Tax reporting principles, methods or policies; (xvi) (A) make, change or revoke any Tax election, settle or compromise any Tax claim or liability or enter into a settlement or compromise, or change (or make a request to any taxing authority to change) any material aspect of its method of accounting for Tax purposes, or (B) prepare or file any Tax Return (or any amendment thereof) unless such Tax Return will have been prepared in a manner consistent with past practice and the Company will have provided the Purchaser a copy thereof (together with supporting papers) at least three (3) Business Days prior to the due date thereof for the Purchaser to review and approve (such approval not to be unreasonably withheld or delayed); (xvii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of an Acquired Company to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons (other than restrictions in Intellectual Property Licenses); (xviii) settle or compromise any pending or threatened Proceeding or any claim or claims, in each case involving an amount individually in excess of $100,000; (xix) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xx) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xvii) except in cooperation with the Purchaser, make any representations regarding offers of employment from the Purchaser or the terms thereof; (xviii) alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which any Acquired Company directly or indirectly holds any interest; (xix) cancel, amend or renew any insurance policy; or (xxxxi) agree in writing to take do anything (A) prohibited by this Section 5.2, or (B) intended to make any of the foregoing actionsrepresentations and warranties of the Sellers in this Agreement or any of the Ancillary Agreements or instruments or documents delivered in connection herewith or therewith untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied.

Operation of the Businesses of the Acquired Companies. (a) Until From the Closingdate of this Agreement until the Closing or the termination of this Agreement in accordance with its terms, except as otherwise set forth in with the prior written consent of the Purchaser to any deviation therefrom or with respect to any transactions or other events expressly required, contemplated or permitted by this Agreement or Section 5.2(a) the Plan of the Seller Disclosure Schedule, required by Law or as otherwise consented to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed)Arrangement, the Seller Company will, and will cause the Acquired Companies to each of its Subsidiaries to: (i) conduct their its business only in the ordinary course of business in substantially the same manner as heretofore conducted, and, to the extent consistent therewith, with past practice; (ii) use commercially its reasonable best efforts to preserve the and protect its present business organization, assets, employment relationships, and relationships of the Acquired Companies with their customers, strategic partners, suppliers, distributors, licensors, licensees, landlords and others doing business with them and to preserve the goodwill and ongoing operations it; (iii) confer with representatives of the Acquired CompaniesPurchaser concerning operational matters of a material nature; and (iv) otherwise report periodically to representatives of the Purchaser concerning the status of its business, operations and finances. (b) Until Without limiting the Closinggenerality of Section 5.2(a), except as otherwise set forth in this Agreement or Section 5.2(b) with the prior written consent of the Seller Disclosure Schedule or as otherwise consented Purchaser, not to by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed)except as otherwise expressly required, contemplated or permitted by this Agreement or the Plan of Arrangement, the Seller Company will not, and will not cause or permit any Acquired Company of its Subsidiaries to: (i) amend declare, set aside or pay any dividend or other distribution (whether in cash, securities or other property) in respect of its Organizational Documentscapital shares (other than dividends and distributions by a direct or indirect wholly-owned Subsidiary of the Company to its parent); (ii) issuesplit, sell combine or pledge additional reclassify its capital or issue or authorize the issuance of any securities in respect of, in lieu of or in substitution for its shares or any of its capital stock or securities convertible into any such shares, or any options, warrants or rights to acquire any such shares or other convertible securitiessecurities(other than in connection with the exercise of Company Options); (iii) purchase, redeem or otherwise acquire any outstanding shares of its capital stockshares or any other securities or any options, warrants or other rights to acquire any such shares or securities; (iv) declare, set aside or pay any dividend or other distribution in respect of its capital stock, other than in cash in the ordinary course of business in connection with the Company’s cash management practices; (v) pay, discharge, waive or satisfy, any Indebtedness other than in the ordinary course of business; (vi) adopt or change accounting methods or practices (including any change in depreciation or amortization policies), except as required by GAAP or applicable Law; (vii) make or change any Tax election, adopt or change any Tax accounting method, enter into any closing agreement with respect to Taxes, settle or compromise any material Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment or file any material Tax Return or any amended Tax Return unless a copy of such Tax Return has been delivered to the Purchaser for review a reasonable time prior to filing; (viii) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement; (ix) incur any Indebtedness, guarantee any Indebtedness of any Person, issue or sell any debt securities, or guarantee any debt securities of any Person; (x) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation against the Company involving an amount in dispute greater than US Dollars 50,000; (xi) enter into any agreement to purchase or sell any interest in real property, grant any security interest otherwise engage in any real propertypractice, enter into take any lease, sublease, license or other occupancy agreement with respect to any real property or alter, amend, modify or terminate any of the terms of any Real Property Leases; (xii) terminate or materially and adversely amend any Material Contract; (xiii) waive or release any right or claim of a material value to the Acquired Companies other than in the ordinary course of business; (xiv) sell, lease or license, or permit any Encumbrance on, any material portion of its assets other than in the ordinary course of business; (xv) acquire, by merger or consolidation with, or by purchase of all or a substantial portion of the assets or stock of, or by any other manner, any business or entityaction, or enter into any joint venturetransaction of the type described in Section 3.10 (except for any such practice, partnership action or other similar arrangement for the conduct of its business; (xvi) change in any material respect the remuneration or terms of employment of any of its Employees or make offers to employ or engage any other personnel (other than to replace any Employees who have resigned or served or been served with notice to end their employment) other than (A) transaction which is in the ordinary course of business, is consistent with past practice and does not involve an amount over $50,000) ; or (Bv) as required purchase any insurance in excess of such insurance policies held by Law the Acquired Companies on the date hereof. (c) Without limiting the generality of Section 5.2(a) and 5.2(b), the Company will not, and will not cause or permit any of its Subsidiaries (C) for retention, incentive and similar payments relating to the consummation extent that it has the power to do so) to, accelerate the timing of any new releases for existing products or engage in any activity of the transactions contemplated type sometimes referred to as "trade loading" or "channel stuffing" or engage in any other activity that reasonably could be expected to result in an increase, temporary or otherwise, in the demand for the products offered by this the Acquired Companies prior to the Closing Date, including sales of a product: (i) with payment terms longer than terms customarily offered by an Acquired Company for such product; (ii) at a greater discount from listed prices than customarily offered for such product, other than pursuant to a promotion of a nature previously used in the ordinary course of business of an Acquired Company for such product; (iii) at a price that does not give effect to any general increase in the list price for such product publicly announced prior to the date of the Agreement; (xviiiv) except in cooperation with shipment terms more favourable to the Purchaser, make any representations regarding offers of employment from the Purchaser or the customer than shipment terms thereof; (xviii) alter, or enter into any commitment to alter, its interest in any corporation, association, joint venture, partnership or business entity in which any customarily offered by an Acquired Company directly or indirectly holds any interest; (xix) cancel, amend or renew any insurance policyfor such product to such customer; or (xxv) agree in writing conjunction with other material benefits to take any the customer not previously offered in the ordinary course of the foregoing actionsbusiness to such customer.

Operation of the Businesses of the Acquired Companies. (a) Until the Closing, except Except as otherwise set forth in this Agreement or Section 5.2(a) 5.2 of the Seller Company Disclosure Schedule, required by Law Schedule or as otherwise consented contemplated by this Agreement, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to by its terms or the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed)Effective Time, the Seller Company will, and will cause the Acquired Companies to each of its Subsidiaries to: (i) conduct their its business only in the ordinary course of business in substantially the same manner as heretofore conducted, and, to the extent consistent therewith, business; (ii) use its commercially reasonable efforts to preserve the and protect its business organization, assets, employment relationships, and relationships of the Acquired Companies with their customers, strategic partners, suppliers, distributors, licensors, licensees, landlords and others doing business with them it; (iii) pay its debts and Taxes when due, subject to preserve good faith disputes over such obligations; and (iv) deliver to Parent (A) the goodwill and ongoing operations monthly board book that is disseminated to the Board of Directors of the Acquired CompaniesCompany and (B) the Company’s weekly operational reports. (b) Until Without limiting the Closing, generality of Section 5.2(a) and except as otherwise set forth in this Agreement or Section 5.2(b) 5.2 of the Seller Company Disclosure Schedule or as otherwise consented to expressly permitted or contemplated by this Agreement or the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed)Ancillary Agreements, the Seller Company will not, and will not cause or permit any Acquired Company to:of its Subsidiaries to (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed): (i) amend declare, set aside or pay any dividend or other distribution (whether in cash, securities or other property) in respect of its Organizational Documentscapital stock (other than dividends and distributions by a direct or indirect wholly-owned Subsidiary of the Company to its parent); (ii) issuesplit, sell combine or pledge additional reclassify its capital or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its shares or any of its capital stock or securities convertible into any such shares, or any options, warrants or rights to acquire any such shares or other convertible securities; (iii) purchase, redeem or otherwise acquire any outstanding shares of its capital stockshares or any other securities or any options, warrants or other rights to acquire any such shares or securities; (iv) declareenter into any material partnership arrangements, set aside joint development agreement or pay any dividend or other distribution in respect of its capital stockstrategic alliances, other than in cash in the ordinary course of business in connection with the Company’s cash management practices; (v) pay, discharge, waive or satisfy, any Indebtedness other than in the ordinary course of business; (v) transfer a license to any Person, or otherwise extend, amend or modify any material Intellectual Property Rights; (vi) adopt cause, permit or change accounting methods or practices (including propose any change in depreciation or amortization policies), except as required by GAAP or applicable Lawamendments to its Organizational Documents; (vii) acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion or the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof having a value in excess of $250,000, or otherwise acquire or agree to acquire any assets having a value in excess of $250,000; (viii) except as required to ensure that any Company Plan is not then out of compliance with applicable Law or to comply with the requirements of any Company Plan, adopt, amend or terminate any Company Plan; (ix) make any individual or change series of related payments outside of the ordinary course of business in excess of $100,000; (x) except in the ordinary course of business consistent with past practice, modify, amend or terminate any Tax electionMaterial Contract or waive, adopt delay the exercise of, release or change assign any Tax accounting methodmaterial rights or claims thereunder; (xi) except as required by applicable Law, enter into any closing agreement with in respect to of material Taxes, settle any claim or compromise assessment in respect of any material Tax claim Taxes, or assessment, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment or file in respect of any material Tax Return or any amended Tax Return unless a copy of such Tax Return has been delivered to the Purchaser for review a reasonable time prior to filing; (viii) make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement; (ix) incur any Indebtedness, guarantee any Indebtedness of any Person, issue or sell any debt securities, or guarantee any debt securities of any Person; (x) commence or settle any lawsuit, threat of any lawsuit or proceeding or other investigation against the Company involving an amount in dispute greater than US Dollars 50,000; (xi) 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 or terminate any of the terms of any Real Property LeasesTaxes; (xii) terminate incur or materially enter into any agreement or commitment in excess of $250,000 individually or incur any indebtedness (including capital leases or deferred purchase price obligations) other than (x) under the Security and adversely amend any Material ContractPurchase Agreement, dated July 31, 2006 among the Company, certain of its Subsidiaries and Laurus Master Fund, Ltd, as amended, or (y) in respect of professional fees and expenses relating to this Agreement and the Transactions; (xiii) waive (A) hire any employee or release consultant with an annual compensation level in excess of $150,000 or who is eligible to earn or is paid a bonus in excess of $50,000, (B) enter into or amend any right Contract with any director, officer or claim employee of a material value to the Acquired Companies other than in Company or any of its Subsidiaries the ordinary course benefits of businesswhich are contingent upon the occurrence of the Transactions or (C) enter into any compensation agreement with any current officer or director; (xiv) sellpay, lease discharge or licensesatisfy any claim, liability or permit any Encumbrance onobligation (absolute, any material portion accrued, asserted or unasserted, contingent or otherwise) for an amount in excess of its assets $250,000 other than in the (A) ordinary course of businessworkers’ compensation claims or (B) pursuant to agreements contemplating such payment, discharge or satisfaction entered into prior to the date hereof; (xv) acquireexcept as required by applicable Law, by merger make or consolidation withchange any material Tax election, change any method of accounting resulting in a material amount of additional Tax or by purchase of all or a substantial portion of the assets or stock offile any material amended Tax Return; (xvi) otherwise engage in any practice, or by take any other manner, any business or entityaction, or enter into any joint venture, partnership or other similar arrangement for the conduct of its business; (xvi) change in any material respect the remuneration or terms of employment of any of its Employees or make offers to employ or engage any other personnel (other than to replace any Employees who have resigned or served or been served with notice to end their employment) other than (A) in the ordinary course of business, (B) as required by Law or (C) for retention, incentive and similar payments relating to the consummation transaction of the transactions contemplated by this Agreementtype described in Section 3.7 or Section 3.8; (xvii) except purchase any insurance in cooperation excess of such insurance policies held by the Acquired Companies on the date hereof, provided that the foregoing shall not prohibit the Company from extending the term of existing insurance policies or replacing existing insurance policies with the Purchaser, make any representations regarding offers of employment from the Purchaser or the terms thereofcomparable policies; (xviii) alter, agree in writing or enter into otherwise take any commitment to alter, its interest of the actions described in any corporation, association, joint venture, partnership or business entity in which any Acquired Company directly or indirectly holds any interest;Section 5.2(b)(i) through (xvii) above; or (xix) cancelother than upon the exercise of outstanding Company Options, amend Company SARs, Company Warrants or renew Convertible Debentures, issue any insurance policy; or (xx) agree in writing to take any of the foregoing actionsCommon Shares.