Common use of Operations Prior to Closing Clause in Contracts

Operations Prior to Closing. (a) During the Pre-Closing Period: (i) the Company shall conduct its business and operations, and shall cause each of the Acquired Corporations to conduct its business and operations, in the ordinary course and in accordance with past practices; (ii) the Company shall use commercially reasonable efforts to conduct its business and operations, and shall use commercially reasonable efforts to cause each of the other Acquired Corporations to conduct its business and operations, in material compliance with all applicable Legal Requirements and the requirements of all Company Contracts that constitute Company Significant Contracts; (iii) the Company shall use commercially reasonable efforts to attempt to ensure that each of the Acquired Corporations preserves intact the material components of its current business organization, keeps available the services of its current officers and other key employees and maintains its relations and goodwill with all material suppliers, material customers, material licensors, material licensees and Governmental Bodies; and (iv) the Company shall promptly notify Parent of any claim asserted or Legal Proceeding commenced, or, to the Company's knowledge, either: (A) with respect to a Governmental Body, overtly threatened; or (B) with respect to any other Person, threatened in writing, against, relating to, involving or otherwise affecting any of the Acquired Corporations that relates to any of the Contemplated Transactions. Promptly following its receipt of the written version of the opinion from Xxxxxx Xxxxxxx referred to in Section 2.25, the Company shall furnish a copy of such opinion to Parent. (b) Except as set forth in Part 4.2(b) of the Company Disclosure Schedule, during the Pre-Closing Period, the Company shall not (without the prior written consent of Parent, which consent shall not be unreasonably withheld with respect to the matters described in clauses "(vii)," "(viii)," "(x)," "(xiv)," "(xvi)," "

Operations Prior to Closing. (a) During the Pre-Closing Period: (i) the Company shall conduct its business and operations, and shall cause ensure that each of the Acquired Corporations to conduct conducts its business and operations, : (A) in the ordinary course and in accordance with past practices; and (B) in compliance in all material respects with all applicable Legal Requirements; (ii) the Company shall use commercially reasonable efforts to conduct its business and operations, and shall use commercially reasonable efforts to cause each of the other Acquired Corporations to conduct its business and operations, in material compliance with all applicable Legal Requirements and the requirements of all Company Contracts that constitute Company Significant Contracts; (iii) the Company shall use commercially reasonable efforts to attempt to ensure that each of the Acquired Corporations preserves intact the material components of its current business organization, keeps available the services of its current officers and other key employees Company Employees and maintains its relations and goodwill with all material suppliers, material customers, material landlords, creditors, licensors, material licensees licensees, employees and other Persons having business relationships with the respective Acquired Corporations and with all Governmental Bodies; and (iviii) the Company shall promptly notify Parent of any claim asserted or Legal Proceeding commenced, or, to the Company's ’s knowledge, either: (A) with respect to a Governmental Body, overtly threatened; or (B) with respect to any other Person, threatened in writing, against, relating to, involving or otherwise affecting writing against any of the Acquired Corporations that relates to any of the Contemplated Transactions. Promptly following its receipt of the written version of the opinion from Xxxxxx Xxxxxxx referred to in Section 2.25, the Company shall furnish a copy of such opinion to Parent. (b) Except Except: (i) as set forth in Part 4.2(b) of the Company Disclosure Schedule, or (ii) as required by Legal Requirements, during the Pre-Closing Period, the Company shall not (without the prior written consent of Parent, which consent shall not be unreasonably withheld with respect to the matters described in clauses "“(vi),” “(vii)," "” “(viiiix)," "” “(xxiii)," "” “(xivxv)," "” “(xvi)” and “(xvii)” of this sentence), and the Company shall ensure that each of the other Acquired Corporations does not (without the prior written consent of Parent, which consent shall not be unreasonably withheld with respect to the matters described in clauses “(vi)," "” “(vii),” “(ix),” “(xiii),” “(xv),” “(xvi)” and “(xvii)” of this sentence): (i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, or repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, other than pursuant to the Company’s right to repurchase restricted shares of Company Common Stock held by a service provider of the Company upon termination of such service provider’s period of service pursuant to the terms of a Company Option, Company RSA or Company PSA; (ii) sell, issue, grant or authorize the sale, issuance or grant of: (A) any capital stock or other security; (B) any option, call, warrant or right to acquire any capital stock or other security; or (C) any instrument convertible into or exchangeable for any capital stock or other security (except that the Company may issue shares of Company Common

Operations Prior to Closing. (a) During the Pre-Closing Period: Except (i) the Company shall conduct its business and operationsas expressly contemplated or permitted by this Agreement, and shall cause each of the Acquired Corporations to conduct its business and operations, in the ordinary course and in accordance with past practices; (ii) the Company shall use commercially reasonable efforts to conduct its business and operations, and shall use commercially reasonable efforts to cause each of the other Acquired Corporations to conduct its business and operations, in material compliance with all applicable Legal Requirements and the requirements of all Company Contracts that constitute Company Significant Contracts; (iii) the Company shall use commercially reasonable efforts to attempt to ensure that each of the Acquired Corporations preserves intact the material components of its current business organization, keeps available the services of its current officers and other key employees and maintains its relations and goodwill with all material suppliers, material customers, material licensors, material licensees and Governmental Bodies; and (iv) the Company shall promptly notify Parent of any claim asserted or Legal Proceeding commenced, or, to the Company's knowledge, either: (A) with respect to a Governmental Body, overtly threatened; or (B) with respect to any other Person, threatened in writing, against, relating to, involving or otherwise affecting any of the Acquired Corporations that relates to any of the Contemplated Transactions. Promptly following its receipt of the written version of the opinion from Xxxxxx Xxxxxxx referred to in Section 2.25, the Company shall furnish a copy of such opinion to Parent. (b) Except as set forth in Part 4.2(b5.2(a) of the Company Disclosure Schedule or Part 5.2(a) of the Parent Disclosure Schedule, (iii) as required by applicable Legal Requirements, or (iv) as approved in advance by the other party in writing, at all times during the Pre-Closing Period, each of the Company and Parent shall, and each of them shall not cause its Subsidiaries to (without w) carry on its respective business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements, (x) pay its debts and Taxes when due, in each case subject to good faith disputes over such debts or Taxes, (y) pay or perform all material obligations when due, and (z) use reasonable best efforts, consistent with past practices and policies, to (A) preserve intact its present business organization, (B) keep available the services of its present officers and employees and (C) preserve its relationships with customers, suppliers, distributors, licensors, licensees and other parties with which it has significant business dealings. (b) Except (A) as expressly contemplated or permitted by this Agreement, (B) as set forth in Part 5.2(b) of the Company Disclosure Schedule or Part 5.2(b) of the Parent Disclosure Schedule, as the case may be, (C) with the prior written consent of ParentParent or the Company, as the case may be, which consent shall not be unreasonably withheld withheld, delayed or conditioned, or (D) in connection with the Debt Restructuring, at all times during the Pre-Closing Period, neither the Company nor Parent shall, nor shall either of them cause or permit any of their respective Subsidiaries to, do any of the following: (i) propose to adopt any amendments to or amend its certificate of incorporation or bylaws or comparable organizational documents; (ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, other equity-based (whether payable in cash, securities or other property or any combination of the foregoing) commitments, subscriptions, rights to purchase or otherwise) any of its securities or any securities of any of its Subsidiaries, except for (A) the issuance and sale of shares of common stock pursuant to stock options or restricted stock units outstanding prior to the date hereof, (B) grants of purchase rights under an employee stock purchase or other similar plan, and (C) grants to newly hired employees or refresh grants to current employees of restricted stock units covering or stock options to purchase common stock granted in the ordinary course of business consistent with past practice, in the case of stock options, with a per share exercise price that is no less than the then-current market price of a share of common stock; (iii) amend the terms of any of its securities or any securities (including options, warrants and similar rights) of any of its Subsidiaries; provided, however, that nothing in this paragraph (iii) shall prohibit the Company or Parent from dissolving and/or merging into any of its Subsidiaries certain other Subsidiaries that are not material to it and its Subsidiaries, taken as a whole; (iv) incur or guarantee any indebtedness for borrowed money or issue or sell any debt securities or guarantee any debt securities or other obligations of other parties, other than contractual obligations of Subsidiaries in the ordinary course of business, or create an Encumbrance over any of its assets, other than the issuance of performance bonds in the ordinary course of business consistent with past practice; (v) declare, set aside or pay any dividend or other distribution of property in respect of any shares of capital stock, or make any other actual, constructive or deemed distribution of property in respect of the shares of capital stock or effect or commit to any stock repurchase of its capital stock; (vi) propose or adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of it or any of its Subsidiaries (other than the transactions contemplated hereby); provided, however, that nothing in this paragraph (vi) shall prohibit the Company or Parent from dissolving and/or merging into any of its Subsidiaries certain other Subsidiaries that are not material to it and its Subsidiaries, taken as a whole; (vii) forgive any loans of any party, including its employees, officers or directors or any employees, officers or directors of any of its Subsidiaries, or any of its Affiliates; (viii) (A) increase the compensation payable or to become payable to its officers, employees (other than in the ordinary course of business) or consultants (other than in the ordinary course of business), or (B) grant any severance or termination pay to, or enter into any severance agreement with any director, officer, consultant or other employee, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any such director, officer, consultant or employee, other than with respect to the matters described hiring and termination of employees in clauses "the ordinary course of business consistent with past practice, except the parties may make any amendments to existing employee benefit plans to the extent necessary to maintain their compliance with applicable Legal Requirements (vii)," "including any amendments necessary or desirable to comply with Section 409A of the Code so as to avoid the imposition of additional Tax with respect thereto) and the parties may make grants of equity awards as provided in Section 5.2(b)(ii) above; (viii)," "ix) acquire, sell, lease, license or dispose of any property or assets in any single transaction or series of related transactions, except for (i) transactions pursuant to existing Contracts, or (ii) transactions in the ordinary course of business consistent with past practice; (x) except as may be required by applicable Legal Requirements or U.S. GAAP, make any change in any of the accounting principles or practices used by it or its Subsidiaries; (xi) make or change any material Tax election, adopt or change any Tax accounting method, settle or compromise any material Tax liability, or consent to the extension or waiver of the limitations period applicable to a material Tax claim or assessment; (xii) enter into or amend any Material Contract (in the case of the Company) or Parent Material Contract (in the case of Parent)," ", as the case may be, except in the ordinary course of business consistent with past practice; (xiii) sell, assign, transfer, license or sublicense, pledge or otherwise encumber any Company Intellectual Property or Parent Intellectual Property, as applicable (other than non-exclusive licenses or other similar Contracts in the ordinary course of business consistent with past practice); (xiv)," ") acquire (by merger, consolidation or acquisition of stock or assets) any other Person, any equity interest of any Person or substantially all of the assets of any Person; (xv) mortgage, pledge or subject to Encumbrance, any of its assets or properties; (xvi)," ") authorize, incur or commit to incur any new capital expenditure(s) which in the aggregate exceed $300,000 per quarter; provided, however, that the foregoing shall not limit any maintenance capital expenditures or capital expenditures required pursuant to existing Contracts; (xvii) settle or compromise any pending or threatened Legal Proceeding in a manner which would require the Company and its Subsidiaries or Parent and its Subsidiaries, as applicable, to make an adverse admission, or pay, discharge or satisfy or agree to pay, discharge or satisfy any amount greater than $250,000 in damages; (xviii) initiate any material Legal Proceeding; (xix) except as required by applicable Legal Requirements or U.S. GAAP, revalue in any material respect any of its properties or assets, including writing-off notes or accounts receivable other than in the ordinary course of business consistent with past practice; or (xx) enter into a Contract to do any of the foregoing or knowingly take any action which is reasonably expected to result in any of the conditions to the consummation of the transactions contemplated hereby not being satisfied, or knowingly take any action which would make any of its representations or warranties set forth in this Agreement untrue or incorrect in any material respect, or that would materially impair its ability to consummate the transactions contemplated by this Agreement in accordance with the terms hereof or materially delay such consummation.