Common use of Prohibited Actions Pending Closing Clause in Contracts

Prohibited Actions Pending Closing. Unless otherwise provided for herein or approved by Martek in writing, from the date hereof until the Closing, neither the Company nor its Subsidiary shall: (a) amend or otherwise change its certificate of incorporation or bylaws, or the equivalent organization documents, as applicable; (b) issue or sell or authorize or reserve for issuance or sale (other than any issuance of Company Capital Stock upon (i) the exercise of any outstanding option or warrant to purchase Company Capital Stock which option or warrant was issued prior to the date hereof in accordance with the terms of the relevant stock option or warrant agreement and the terms of which are disclosed on Schedule 2.3 or which are subsequently issued in accordance with the succeeding limitations of this Section 5.2(b) or (ii) satisfaction of the liabilities and obligations listed on Schedule 5.2(b)), or grant any options or make other agreements with respect to, any shares of its capital stock or any other of its securities, except for issuances of options (x) in satisfaction of the liabilities and obligations listed on Schedule 5.2(b) or (y) to purchase Company Common Stock which may be granted under the Stock Plan to new hires and in the Ordinary Course of Business, provided that no such stock options shall be granted to members of senior management of the Company other than as provided in Schedule 5.2(b); (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise with respect to any of its capital stock; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock except for repurchases of unvested shares in connection with the termination of any employee pursuant to stock option or purchase agreements; (e) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances, except in the Ordinary Course of Business, consistent with past practice; (f) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or Assets) any corporation, partnership, other business organization or any division thereof or any material amount of Assets;

Prohibited Actions Pending Closing. (a) Unless approved by the Company in writing, from the date hereof until Closing or termination of this Agreement, Ciena shall not: (1) declare, set aside, or pay any dividends or make any other distributions (whether in cash, stock, equity securities or property) in respect to Ciena’s capital stock, except where (A) an adjustment is made to the Aggregate Merger Consideration in accordance with Section 1.7 or (B) the holders of Company Capital Stock will otherwise receive an equivalent, proportional dividend or distribution in connection with the Merger as if they had been holders of Ciena Common Stock on the record date for such dividend or distribution; or (2) agree in writing or otherwise take any of the actions described in Section 4.2(a)(1) above. (b) Unless set forth on Schedule 4.2(b) hereto or otherwise provided for herein or contemplated hereby or otherwise necessary in order to comply with Law or the Company’s obligations hereunder or approved by Martek Ciena in writing, including, without limitation, by electronic mail, (which approval shall not be unreasonably withheld or delayed), from the date hereof until the Closing, neither the Company nor shall operate in the Ordinary Course of Business and it and its Subsidiary shallSubsidiaries shall not: (a1) amend or otherwise change its certificate of incorporation or bylaws, the Company Certificate (other than the Certificate Amendment) or the equivalent organization documents, as applicablebylaws of the Company; (b2) issue or sell or authorize or reserve for issuance or sale (other than any issuance of Company Capital Stock upon (i) the exercise of any outstanding option or warrant to purchase Company Capital Stock Stock, which option or warrant was issued prior to the date hereof in accordance with the terms of the relevant stock option or warrant agreement and the terms of which are disclosed on Schedule 2.3 or which are subsequently issued in accordance with the succeeding limitations of this Section 5.2(b2.3(a) or (ii) satisfaction of the liabilities and obligations listed on Schedule 5.2(b)Company Disclosure Schedule), or grant any options or restricted stock or make other agreements with respect to, any shares of its capital stock or any other of its securities, except for issuances securities or modify the terms of existing stock options (x) in satisfaction of the liabilities and obligations listed on Schedule 5.2(b) or (y) to purchase Company Common Stock which may be granted that have been issued under the Company Stock Plan Plan, except (i) pursuant to new hires agreements or obligations outstanding as of the date hereof and listed in the Ordinary Course of Business, provided that no such stock options shall be granted to members of senior management Schedule 2.3(a) of the Company other than as provided Disclosure Schedule (ii) that the Company may carry out those provisions of any agreement with the Exchange Agent that are in Schedule 5.2(b)furtherance of this Agreement; (c3) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise with respect to any of its capital stockstock except for repurchases of shares in connection with the termination of any employee, director or consultant pursuant to stock option agreements (and in accordance with the Company Stock Plan) or other agreements providing for such repurchase in effect as of the date of this Agreement; (d4) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock except for repurchases of unvested shares in connection with the termination of any employee employee, director or consultant pursuant to stock option agreements (and in accordance with the Company Stock Plan) or purchase agreementsother agreements providing for such repurchase in effect as of the date of this Agreement; (e5) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances, except advances other than (x) advances to employees in the Ordinary Course of BusinessBusiness in amounts, individually and in the aggregate, consistent with past practicerecent historical practice and (y) borrowings under that certain Loan and Security Agreement by and between the Company and Bridge Bank National Association, dated as of July 20, 2007, as modified on November 27, 2007; (f) (i6) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or Assets) any corporation, partnership, other business organization or any division thereof or any material amount of Assets; (7) enter into any contract or agreement that would constitute a Material Contract if in effect on the date hereof, other than in the Ordinary Course of Business; (8) authorize any capital commitment or capital lease that is in excess of $100,000 individually or capital expenditures that are, in the aggregate, in excess of $500,000; (9) mortgage, pledge or subject to Encumbrance other than Permitted Encumbrances, any of its Assets or properties or agree to do so other than in the Ordinary Course of Business; (10) assume, guarantee or otherwise become responsible for the obligations of any other Person, other than its Subsidiaries, or agree to so do; (11) enter into or agree to enter into any employment agreement (other than offer letters for non-executive new hires entered into in the Ordinary Course of Business); (12) increase the compensation payable or to become payable to its officers or employees, or grant any severance or termination pay to, or enter into any severance agreement with any director, officer or other employee of the Company, 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 or employee, except the Company may make any amendments to existing employee benefit plans to the extent necessary to maintain their compliance with applicable Laws (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); (13) take any action to change in any respect its accounting policies or procedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivables) except as required by GAAP; (14) make any Tax election, file any amendment to any Tax Return (unless to correct an error), enter into any closing agreement, surrender any right to claim a refund of Taxes or settle or compromise any federal, state, local or foreign income Tax liability in excess of $50,000; (15) settle or compromise any pending or threatened suit, action or claim or initiate any litigation against any third party; (16) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the Ordinary Course of Business, of liabilities reflected or reserved against in the latest balance sheet included in the Financial Statements provided to Ciena or subsequently incurred in the Ordinary Course of Business in amounts not in excess of $100,000; (17) sell, assign, transfer, license or sublicense, pledge or otherwise encumber any of the Intellectual Property Rights (other than in the Ordinary Course of Business); or (18) announce an intention, commit or agree to do any of the foregoing. (c) Notwithstanding the foregoing, the Company and the Buyer Parties acknowledge and agree that (i) nothing contained in this Agreement shall give Ciena, directly or indirectly, the right to control or direct the Company’s operations for purposes of the Hxxx-Xxxxx-Xxxxxx Act or any other applicable antitrust or competition Law prior to the expiration or termination of any applicable Hxxx-Xxxxx-Xxxxxx Act waiting period or any other applicable antitrust or competition Law waiting period, or prior to receipt of any applicable approval under any antitrust or competition Law, and (ii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Ciena will be required with respect to any matter set forth in the Agreement to the extent the requirement of such consent would violate any applicable Law.

Prohibited Actions Pending Closing. (a) Unless otherwise provided for herein or approved by Martek the Company in writing, from the date hereof until the Closing, neither the Company nor its Subsidiary shallCIENA shall not: (ai) declare, set aside, or pay any dividends or make any other distributions (whether in cash, stock, equity securities or property) in respect to CIENA’s capital stock, except where (A) an adjustment is made to the exchange ratio in accordance with Section 1.6 or (B) the holders of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6) in connection with the Merger as if they had been holders of CIENA Common Stock on the record date for such dividend or distribution; (ii) redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for repurchases of unvested shares in connection with the termination of any employee pursuant to stock options or purchase agreements, redemptions or purchases of CIENA Notes or Cyras Notes and tenders for outstanding stock options; (iii) acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other matter, any business or any corporation, partnership, association or other business organization or division thereof; or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of CIENA or enter into any material joint venture, strategic relationships or alliances; provided, that CIENA shall not be prohibited under this clause (iii) from undertaking any of the activities described herein if the total consideration for such acquisition does not exceed 34 million shares of CIENA Common Stock; provided further, that if the consideration for such acquisition does not consist solely of CIENA Common Stock, an effective number of shares for purposes of this Section 5.2(a)(iii) shall be determined by dividing the consideration by the average of the closing prices for the CIENA Common Stock as reported on Nasdaq for the five trading days ending on the trading day prior to the day on which CIENA gives notice of the proposed acquisition to the Company; (iv) amend or otherwise change its certificate the CIENA Charter Documents unless such amendment or change would not materially affect the rights or privileges of incorporation the CIENA Common Stock; or (v) agree in writing or bylawsotherwise to take any of the actions described in Sections 5.2(a)(i) through (iv) above. (b) Unless otherwise provided for herein, or otherwise necessary in order to comply with the equivalent organization documentsCompany’s obligations hereunder, as applicableor approved by CIENA in writing, from the date hereof until the Closing, the Company and each of its Subsidiaries shall operate in the ordinary course of business and shall not: (i) amend or otherwise change the Company Certificate or the bylaws of the Company; (bii) issue or sell or authorize or reserve for issuance or sale (other than any issuance of Company Capital Stock upon (i) the exercise of any outstanding option or warrant to purchase Company Capital Stock which option or warrant was issued prior to the date hereof in accordance with the terms of the relevant stock option or warrant agreement and the terms of which are disclosed on Schedule 2.3 or which are subsequently issued in accordance with the succeeding limitations of this Section 5.2(b) or (ii) satisfaction of the liabilities and obligations listed on Schedule 5.2(b))sale, or grant any options or make other agreements with respect to, any shares of its capital stock or any other of its securities, except for issuances other than the issuance of stock upon the exercise of stock options (xand warrants outstanding on the date hereof, the issuance of stock pursuant to the ESPP and other than option grants in the amounts and to the persons identified on Schedule 5.2(b)(ii) in satisfaction hereto or option grants made to prospective employees of the liabilities Company in and obligations amount not to exceed 10,000 for each individual employee and 100,000 in the aggregate with respect to all such prospective employees and, provided,however, if the Closing Date occurs on or after May 20, 2002, the Company may issue options to purchase shares of Company Common Stock (a) under the terms and conditions of its Offer to Exchange dated October 19, 2001 to certain employees who remain continuously employed by the Company through the grant date provided that the vesting provisions of such options are in accordance with the terms and conditions of the Offer to Exchange and (b) to the individuals and in the amounts listed on Schedule 5.2(b5.9(k) or (y) to purchase Company Common Stock which may be granted under provided the Stock Plan to new hires and in the Ordinary Course of Business, provided that no such stock options shall be granted to members of senior management of individual remains continuously employed by the Company other than as provided in through the grant date, subject to the terms and conditions described on Schedule 5.2(b5.9(k); (ciii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise with respect to any of its capital stock; (div) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock except for repurchases of unvested shares in connection with the termination of any employee pursuant to stock option or purchase agreements; (ev) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances, except in the Ordinary Course ordinary course of Businessbusiness, consistent with past practice; (fvi) (ix) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or Assets) any corporation, partnership, other business organization or any division thereof or any material amount of Assets;

Prohibited Actions Pending Closing. (a) Unless approved by the Company in writing (unless such approval would violate legal requirements) or if necessary in order to comply with applicable Laws, from the date hereof until Closing or termination of this Agreement, Bionik shall not: (i) declare, set aside, or pay any dividends or make any other distributions (whether in cash, stock, equity securities or property) in respect to Bionik’s capital stock, except where (A) an adjustment is made to the Exchange Ratios in accordance with Section 1.6 or (B) the holders of Company Capital Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the respective Exchange Ratios, as adjusted pursuant to Section 1.6) in connection with the Merger as if they had been holders of Bionik Common Stock on the record date for such dividend or distribution; or (ii) agree in writing or otherwise take any of the actions described in Section 4.2(a)(i) above. (b) Unless otherwise provided for herein or otherwise necessary in order to comply with applicable Laws or the Company’s obligations hereunder or approved by Martek Bionik in writingwriting (unless such approval would violate legal requirements), from the date hereof until the ClosingClosing or the termination of this Agreement, neither the Company nor its Subsidiary shallshall not: (ai) amend or otherwise change its certificate of incorporation or bylaws, the Company Articles or the equivalent organization documents, as applicablebylaws of the Company; (bii) issue or sell or authorize or reserve for issuance or sale (other than any issuance of Company Capital Stock upon (i) the exercise of any outstanding option or warrant to purchase Company Capital Stock set forth on Schedule 2.3 which option or warrant was issued prior to the date hereof in accordance with the terms of the relevant stock option or warrant agreement and the terms of which are disclosed on Schedule 2.3 or which are subsequently issued in accordance with the succeeding limitations of this Section 5.2(b) or (ii) satisfaction of the liabilities and obligations listed on Schedule 5.2(b4.2(b)), or grant any options or restricted stock or make other agreements with respect to, any shares of its capital stock or any other of its securities, except for issuances securities or modify the terms of existing stock options (x) in satisfaction of the liabilities and obligations listed on Schedule 5.2(b) or (y) to purchase Company Common Stock or restricted stock grants which may be granted have been issued under the Company Stock Plan to new hires and in the Ordinary Course of BusinessPlan, provided except that no such stock options shall be granted to members of senior management of the Company other than as provided may carry out those provisions of any agreement with the Exchange Agent which provisions are in Schedule 5.2(b)furtherance of this Agreement; (ciii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise with respect to any of its capital stock; (div) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock except for repurchases of unvested shares in connection with the termination of any employee or consultant pursuant to stock option option, restricted stock purchase agreements or purchase stock award agreements, each pursuant to the Company Stock Plan; (ev) other than as permitted pursuant to Section 4.1(b), incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances, except in the Ordinary Course of Business, consistent with past practice; (f) (ivi) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or Assets) any corporation, partnership, other business organization or any division thereof thereof, or acquire, except in the Ordinary Course of Business, any material amount of Assets; (vii) enter into any contract or agreement other than in the Ordinary Course of Business; (viii) authorize any capital commitment or capital lease which is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $50,000; (ix) mortgage, pledge or subject to Encumbrance other than Permitted Encumbrances, any of its Assets or properties or agree to do so other than in the Ordinary Course of Business; (x) assume, guarantee or otherwise become responsible for the obligations of any other Person, or agree to so do; (xi) enter into or agree to enter into any employment agreement (other than offer letters for non-executive new hires entered into in the Ordinary Course of Business); (xii) increase the rate of compensation payable or to become payable to its officers or employees, or grant any severance or termination pay to, or enter into any severance agreement with any director, officer or other employee of the Company, 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 or employee, except that the Company may make any amendments to existing employee benefit plans to the extent necessary to maintain their compliance with applicable Laws and which does not otherwise result in a Company Material Adverse Effect; (xiii) take any action to change in any respect its accounting policies or procedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivables), except as required by concurrent changes in GAAP; (xiv) make any Tax election or settle or compromise any federal, state, local or foreign income material Tax liability; (xv) settle or compromise any pending or threatened suit, action or claim or initiate any litigation against any third Person; (xvi) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the Ordinary Course of Business and consistent with past practice, of liabilities reflected or reserved against in the latest balance sheet included in the Financial Statements or subsequently incurred in the Ordinary Course of Business in amounts not in excess of $100,000; (xvii) sell, assign, transfer, license or sublicense, pledge or otherwise encumber any of the Intellectual Property Rights (other than in the Ordinary Course of Business); or (xviii) announce an intention, commit or agree to do any of the foregoing.

Prohibited Actions Pending Closing. Unless otherwise provided for herein listed on Schedule 5.2, or otherwise expressly required by this Agreement, or approved by Martek Parent in writing, from the date hereof until the Closing, neither the Company nor its Subsidiary shall: (a) shall not: amend or otherwise change its certificate of incorporation or bylaws, the Company Certificate or the equivalent organization documents, as applicable; (b) bylaws of the Company; issue or sell or authorize or reserve for issuance or sale (other than any issuance of Company Capital Stock upon (i) the exercise of any outstanding option or warrant to purchase Company Capital Stock which option or warrant was issued prior to the date hereof in accordance with the terms of the relevant stock option or warrant agreement and the terms of which are disclosed on Schedule 2.3 or which are subsequently issued in accordance with the succeeding limitations of this Section 5.2(b) or (ii) satisfaction of the liabilities and obligations listed on Schedule 5.2(b5.2(ii)), or grant any options or make other agreements with respect to, any shares of its capital stock or any other of its securities, except for issuances of stock options (x) in satisfaction of the liabilities and obligations listed on Schedule 5.2(b) or (y) to purchase Company Common Stock which may be granted to non-executive employees under the Company’s Stock Plan to in accordance with past practices (including promotion and new hires and in the Ordinary Course of Businesshire grants), provided that no (A) the exercise price per share of each such stock options shall be granted to members of senior management option is not less than the greater of the Common Per Share Consideration and fair market value per share of Company other Common Stock on the grant date, and (B) options for no more than as provided 255,123 shares of Company Common Stock are issued in Schedule 5.2(b); (c) the aggregate pursuant hereto; declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise with respect to any of its capital stock; (d) ; reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock except for repurchases of unvested shares in connection with the termination of any employee pursuant to stock option or purchase agreements; (e) agreements disclosed on Schedule 2.3; incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances, except in for borrowings pursuant to section 5.13 of the Ordinary Course of Business, consistent with past practice; (f) (i) Merger Agreement and the Interim Note. acquire (including, without limitation, by merger, consolidation, or acquisition of stock or Assets) any corporation, partnership, other business organization or any division thereof or any material amount of Assets;; enter into any contract or agreement other than contracts or agreements entered into in the Ordinary Course of Business consistent with past practice that (1) would not be required to be listed on Schedule 2.9 or 2.10 if in effect on the date hereof or (2) are customer contracts; or authorize any capital commitment or capital lease which is in excess of $500,000 or capital expenditures which are, in the aggregate, in excess of $500,000; mortgage, pledge or subject to Encumbrance, any of its Assets or properties or agree to do so; assume, guarantee or otherwise become responsible for the obligations of any other Person or agree to so do; enter into or agree to enter into or amend any employment agreement (other than offer letters and letter agreements with employees hired after the date hereof entered into in the Ordinary Course of Business); increase the compensation payable or to become payable to its directors, officers, employees or consultants, or grant any severance or termination pay to, or enter into any severance agreement with any director, officer or other employee or consultant of the Company, 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, employee or consultant, except that (A) the Company may make reasonable salary increases in connection with the customary officer and employee performance review process and pay customary bonuses consistent with past practices and (B) the Company may make any amendments to existing employee benefit plans to the extent necessary to maintain their compliance with applicable Laws; take any action to change in any respect its accounting policies or procedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivables); make any Tax election not required by law or settle or compromise any material federal, state, local or foreign income Tax liability in excess of $50,000; commence any suit, or settle or compromise any pending or threatened, suit, action or claim; pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the Ordinary Course of Business and consistent with past practice, of liabilities reflected or reserved against in the latest balance sheet included in the Financial Statements provided to Parent or subsequently reasonably incurred in the Ordinary Course of Business and consistent with past practice; sell, assign, transfer, license, sublicense, pledge or otherwise encumber any assets other than (1) the sale or license of products or inventory in the Ordinary Course of Business and consistent with past practice to customers (and the sublicense to such customers of the related Intellectual Property Right in connection with such sale or license of inventory, in each case in the Ordinary Course of Business and consistent with past practice) or (2) the sale or other transfer of tangible assets that are individually and in the aggregate de minimus; amend any contract or agreement listed on Schedule 2.9, 2.10 or 2.15; unless the employees to be hired are within the Company’s head count plan for fiscal 2001, which contemplates 170 total Company personnel by December 31, 2001, hire any new employees without Parent’s consent, which consent will not be unreasonably withheld; or announce an intention, commit or agree to do any of the foregoing.

Prohibited Actions Pending Closing. Unless otherwise provided for herein or otherwise necessary in order to comply with Legal Requirements or the Company's obligations hereunder or approved by Martek Buyer in writing, including, without limitation, by electronic mail (which approval shall not be unreasonably withheld or delayed), from the date hereof until the Closing, neither the Company nor its shall operate in the ordinary course of business consistent with past practice and it shall not, or permit any Subsidiary shallto: (a) except as set forth in Schedule 6.2 amend or otherwise change its certificate of incorporation or bylaws, the Company Certificate or the equivalent organization documentsbylaws of the Company or the charter documents of any Subsidiary or any stockholder', as applicableinvestor rights or similar agreement; (b) issue or sell or authorize or reserve for issuance or sale (other than any issuance of Company Capital Stock upon (i) the exercise of any outstanding option or warrant to purchase Company Capital Stock which option disclosed on Schedule 4.2(e) or warrant was issued prior to upon the date hereof conversion of any outstanding Company Preferred Stock disclosed on Schedule 4.2(a), or upon the conversion of any convertible promissory note disclosed on Schedule 4.2(b), in each case in accordance with the terms of the relevant stock option or warrant agreement and the terms of which are disclosed on Schedule 2.3 or which are subsequently issued in accordance with the succeeding limitations of this Section 5.2(b) or (ii) satisfaction of the liabilities and obligations listed on Schedule 5.2(b)instrument evidencing such security), or grant any options or restricted stock or make other agreements with respect to, any shares of its capital stock or any other of its securities, except for issuances securities or modify the terms of existing stock options (x) in satisfaction of the liabilities and obligations listed on Schedule 5.2(b) or (y) warrants to purchase Company Common Stock or restricted stock grants which may be granted have been issued under the Company Stock Plan to new hires and in the Ordinary Course of Business, provided that no such stock options shall be granted to members of senior management of the Company other than as provided in Schedule 5.2(b)or otherwise; (c) take any action to place or permit the placing of any shares of Company Capital Stock on the AIM Market of London Stock Exchange plc or otherwise seek to engage in a public offering of the Company's securities; (d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise with respect to any of its capital stock; (de) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock except for repurchases of unvested shares in connection with the termination of any employee or consultant pursuant to stock option option, restricted stock purchase agreements or purchase stock award agreements, each pursuant to the Company Stock Plan; (ef) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the financial obligations of any Person, or make any loans or advances, except in the Ordinary Course of Business, consistent with past practice; (f) (ig) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or Assetsassets) any corporation, partnership, other business organization or any division thereof or acquire or dispose of any material amount of Assetsassets; (h) enter into any contract or agreement other than in the ordinary course of business consistent with past practice; (i) authorize any capital commitment or capital lease which is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $100,000; (j) mortgage, pledge or subject to Lien other than Permitted Liens, any of its assets or properties or agree to do so other than in the ordinary course of business consistent with past practice; (k) enter into or agree to enter into any employment agreement; (l) increase the compensation payable or to become payable to its officers or employees, or grant any severance or termination pay to, or enter into any severance agreement with any director, officer or other employee of any of the Companies, or establish, adopt, enter into or amend any collective bargaining, Employee Benefit Plan, 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 or employee; (m) take any action to change in any respect its accounting policies or procedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivables); (n) make any Tax election or settle or compromise any federal, state, local or foreign income material Tax liability; (o) use or distribute any portion of the Termination Fee (whether to fund operations of the Company, reduce or pay its liabilities, make a distribution to the Company's stockholders, or otherwise); (p) settle or compromise any pending or threatened suit, action or claim (other than claims related to accounts receivable of the Company which were fully reserved in the Latest Balance Sheet) or initiate any litigation against any third party; (q) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of liabilities reflected or reserved against in the Latest Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice in amounts not in excess of $50,000; (r) sell, assign, transfer, license or sublicense, pledge or otherwise encumber any of the Intellectual Property Rights; or (s) announce an intention, commit or agree to do any of the foregoing.