Common use of Conduct of Business by the Clause in Contracts

Conduct of Business by the. Company During the Secondary Period Unless Acquiror shall otherwise agree in writing, during the Secondary Period, the Company covenants and agrees to conduct the Company’s business in and only in, and the Company shall not take any action except in, the ordinary course of business and consistent with past practice and in accordance with applicable Law and the provisions of all Company Contracts, in each case in all material respects. Without limiting the generality of the foregoing, during the Secondary Period, the Company (1) shall use commercially reasonable efforts consistent with past practice to preserve intact the business organization of the Company, to keep available the services of the current officers, employees and consultants of the Company and to preserve the current relationships of the Company with, and the goodwill of, suppliers, customers, development partners, landlords, creditors, licensors, licensees, key employees and other Persons with which the Company has significant business relations, (2) shall use commercially reasonable efforts to keep in full force all insurance policies referred to in Section 2.18 and, if any such insurance policy is scheduled to expire during the Secondary Period, shall cause such insurance policy to be renewed or replaced (on terms and with coverage substantially equivalent to the terms and coverage of the expiring insurance policy) on or prior to the date of expiration of such insurance policy, (3) shall as promptly as practicable notify Acquiror in writing of (A) any written notice or (to the knowledge of the Company) other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the Contemplated Transactions, and (B) any Legal Proceeding commenced, or, to the knowledge of the Company, threatened against, relating to or involving or otherwise affecting the Company or any of its products or Assets, (4) shall cause its officers to report to Acquiror with reasonable frequency concerning the status of the business of the Company and (5) shall perform and comply with all of its covenants, agreements and obligations in the other Operative Documents. By way of amplification and not limitation, the Company shall not, during the Secondary Period, directly or indirectly do, or propose to do, any of the following without the prior written consent of Acquiror: (a) amend or otherwise change the Company Certificate of Incorporation or Company Bylaws if such amendment or change would have, or could reasonably be expected to have, an adverse effect on Acquiror or the Company or on the Company’s ability to comply with any of its obligations under this Agreement or under any of the other Operative Documents; (b) except (A) for the issuance of shares of Company Capital Stock upon the exercise or conversion of Company Stock Options outstanding on the date of this Agreement or the Company Warrant, (B) for the issuance of shares of Company Capital Stock or equity securities (excluding any convertible debt securities) exercisable or convertible solely into shares of Company Capital Stock, or any combination of the foregoing, solely for cash to a Person who becomes a party to a Key Stockholder Agreement in favor of Acquiror contemporaneously with such issuance, (C) for the issuance of Eligible Debt Securities solely for cash to a Person who becomes a party to a Key Stockholder Agreement in favor of Acquiror contemporaneously with such issuance and (D) for the issuance of Company Stock Options with respect to shares of Company Common Stock (to the extent the reservation of such shares for issuance under the Company Option Plan has been approved by the Stockholders prior to the date of this Agreement), issue, sell, contract to issue or sell, pledge, dispose of, grant, encumber or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of (i) any shares of Company Capital Stock, (ii) any Company Stock Option, (iii) the Company Warrant, (iv) any Company Stock Rights or (v) except in the ordinary course of business and consistent with past practice, any Assets of the Company; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock or other securities, property or otherwise, with respect to any shares of Company Capital Stock or other securities, or redeem, purchase or otherwise acquire, directly or indirectly, any shares of Company Capital Stock or other securities (except for repurchases from individuals following their termination of service pursuant to the terms of their pre-existing stock option or purchase agreements); (d) (i) acquire (including by merger, consolidation or acquisition of stock or Assets) any corporation, partnership or other Entity or business organization or division thereof or (except in the ordinary course of business and consistent with past practice) any material amount of Assets; (ii) except for the issuance of Eligible Debt Securities, incur any indebtedness for borrowed money (other than trade payables in the ordinary course of business or in connection with the transactions contemplated by this Agreement or the Specified Litigation) or issue any debt securities; (iii) assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances (except that the Company may make routine travel advances to employees in the ordinary course of business and consistent with past practice not in excess of $10,000 in the aggregate); (iv) authorize any single capital expenditure not included in the Operating Budget that is in excess of $100,000 or capital expenditures not included in the Operating Budget that are, in the aggregate, in excess of $250,000; or (v) enter into any Contract in which the obligation of the Company exceeds $100,000 or which shall not terminate or be subject to termination for convenience without penalty within 30 days following execution; (e) (i) enter into or amend any material employment, consulting or agency Contract, hire any employee or engage any contractor except in order to fill a position vacated after the date of this Agreement, promote any employee except in order to fill a position vacated after the date of this Agreement or hire any employee at the Vice President level or above, (ii) materially increase the wages, salary, bonus, commissions, fringe benefits or other compensation or remuneration payable or to become payable to any Company Associates, (iii) grant any severance or termination pay to, or enter into any employment or severance arrangement with, any Person who is a director or officer of the Company, (iv) enter into any agreement or arrangement with any current or prospective Company Associate that provides for any of the types of payments or other benefits provided under the Change in Control Agreements, (v) except for bonuses described in Annex 6.2(e), pay any bonus or make any discretionary profit-sharing or similar discretionary payment, or (vi) establish, adopt, enter into, amend or terminate any Employee Benefit Plan except as required by applicable Law; (f) amend any Change in Control Agreement in any manner favorable to the employee of the Company who is a party to such Change in Control Agreement in respect of the Contemplated Transactions, or amend or waive any of its rights under, or exercise discretion to accelerate the vesting under, any provision of the Company Option Plan, any provision of any Contract evidencing any outstanding Company Stock Option or any restricted stock purchase agreement, or otherwise modify any of the terms of any outstanding Company Stock Option, the Company Warrant or any other security or any related Contract, or fail to exercise any repurchase right with respect to any shares of Company Capital Stock (unless Acquiror consents in writing to the Company failing to exercise any such repurchase right); (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting methods, policies or procedures (including procedures with respect to the payment of accounts payable and collection of accounts receivable); (h) incur any Tax Liability other than in the normal course of business, or make any material Tax election or settle or compromise any Tax Liability; (i) pay, discharge or satisfy any Liability, other than the payment, discharge or satisfaction of Liabilities (i) incurred in the ordinary course of business and consistent with past practice, (ii) required to be incurred in connection with the transactions contemplated by this Agreement or (iii) incurred in connection with the Specified Litigation; (j) take or fail to take any action that could reasonably be expected to result in any of the representations or warranties of the Company set forth in this Agreement or any of the other Operative Documents being untrue in any material respect, or in any obligation, agreement or covenant of the Company set forth in this Agreement or any of the other Operative Documents being breached, or in any of the conditions to the Merger specified in Articles IV and V not being satisfied; (k) form any Subsidiary or acquire any equity interest or other interest in any other Entity; (l) purchase, dispose of, license, relinquish or otherwise give up any right with respect to any material Intellectual Property or Intellectual Property Right; (m) enter into or become bound by, or permit any of the Assets owned or used by it to become bound by, any Material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any Material Contract; (n) make any discretionary filing or fail to make any required material filing with any Governmental Entity; (o) change in any material respect any of its personnel policies or other business policies, or any of its methods of accounting or accounting practices in any respect; (p) enter into or amend any lease, sublease, rental agreement, contract of sale, tenancy, license or other Contract relating to any real property; (q) voluntarily file any petition under the United States Bankruptcy Code or make any similar filing or commence any proceeding under any state Law respecting insolvency, or cooperate in any way with or fail to vigorously opposed any such petition, filing or proceeding made, filed or commenced by any third party; (r) commence or settle any Legal Proceeding (except that the Company may settle the Specified Litigation if (i) such settlement is a Lump Sum Settlement or (ii) Acquiror and the Company have agreed as to the Lump Sum Equivalent Amount of such settlement); (s) indemnify, or reimburse any expense of, any Company Associate or agent, in connection with the Specified Litigation or otherwise, except to the extent legally or contractually required pursuant to the Company Certificate of Incorporation, the Company Bylaws or any individual agreements identified in Annex 6.13(a) as in effect on the date of this Agreement; (t) make any expenditure with respect to any item included in any of the “Major Categories” of the Operating Budget that causes the total expenditures made by the Company with respect to such Major Category to exceed 110% of the amount budgeted for such Major Category in the Operating Budget for any fiscal quarter; or (u) agree or commit to do any of the foregoing.

Conduct of Business by the. Company During Pending the Secondary Period Unless Acquiror shall Effective Time. The Company agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 6.1 in the Company Disclosure Schedule, as otherwise agree contemplated by this Agreement, as required by Applicable Law or as consented to in writing, during the Secondary Periodwriting by Parent, the Company covenants and agrees to conduct the Company’s business in and only inwill, and the will cause each Company shall not take any action except inSubsidiary to, the ordinary course of business and consistent with past practice and in accordance with applicable Law and the provisions of all Company Contracts, in each case in all material respects. Without limiting respects (i) conduct the generality Business substantially in the Ordinary Course of the foregoing, during the Secondary Period, the Company Business and (1ii) shall use commercially reasonable best efforts consistent with past practice to preserve intact the business organization of the Company, to keep available the services of the current officers, employees and consultants of the Company and to preserve the current relationships of the Company withand each Company Subsidiary with such of the Customers, and the goodwill of, suppliers, customers, development partners, landlords, creditors, licensors, licensees, key employees Suppliers and other Persons with which the Company or any Company Subsidiary has significant business relationsrelations as is reasonably necessary to preserve substantially intact the Business. Without limiting the foregoing, and as an extension thereof, except (1) as set forth in Section 6.1 of the Company Disclosure Schedule, (2) shall use commercially reasonable efforts to keep in full force all insurance policies referred to in Section 2.18 and, if any such insurance policy is scheduled to expire during the Secondary Period, shall cause such insurance policy to be renewed or replaced (on terms and with coverage substantially equivalent to the terms and coverage of the expiring insurance policy) on or prior to the date of expiration of such insurance policyas otherwise contemplated by this Agreement, (3) shall as promptly as practicable notify Acquiror in writing of required by Applicable Law, (A4) any written notice or (to the knowledge of the Company) other communication from any Person alleging that the Consent of such Person is or may be required in connection with any payments to any holder of the Contemplated Transactions, and (B) any Legal Proceeding commenced, or, to the knowledge of the Company, threatened against, relating to or involving or otherwise affecting an Equity Interest in the Company in order to obtain a consent or any of its products release in connection with this Agreement or Assetsthe Merger, (4) shall cause its officers to report to Acquiror with reasonable frequency concerning the status of the business of the Company and or (5) shall perform and comply with all of its covenants, agreements and obligations as consented to in the other Operative Documents. By way of amplification and writing by Parent (such consent not limitationto be unreasonably withheld or delayed), the Company shall not, during and shall not permit any Company Subsidiary to, between the Secondary Perioddate of this Agreement and the Effective Time, directly or indirectly indirectly, do, or propose agree to do, any of the following without (provided that with respect to any act taken by the prior written consent of Acquiror:Company under subclauses (2) through (4) above, the Company shall notify Parent thereof): (a) amend or otherwise change the Company Certificate certificate of Incorporation incorporation or Company Bylaws if such amendment or change would have, or could reasonably be expected to have, an adverse effect on Acquiror or by-laws of the Company or on the Company’s ability to comply with equivalent organizational documents of any of its obligations under this Agreement or under any of the other Operative DocumentsCompany Subsidiary; (b) except (A) for as necessary to comply with the issuance requirements of shares any Contracts of the Company Capital Stock upon the exercise or conversion of a Company Stock Options outstanding Subsidiary existing on the date of this Agreement or the Company Warrant, (B) for the issuance of shares of Company Capital Stock or equity securities (excluding any convertible debt securities) exercisable or convertible solely into shares of Company Capital Stock, or any combination of the foregoing, solely for cash to a Person who becomes a party to a Key Stockholder Agreement in favor of Acquiror contemporaneously with such issuance, (C) for the issuance of Eligible Debt Securities solely for cash to a Person who becomes a party to a Key Stockholder Agreement in favor of Acquiror contemporaneously with such issuance and (D) for the issuance of Company Stock Options with respect to shares of Company Common Stock (to the extent the reservation of such shares for issuance under the Company Option Plan has been approved by the Stockholders prior to the date of this Agreement)hereof, issue, deliver, sell, contract pledge or encumber, or authorize, propose or agree to issue or sell, pledge, dispose of, grant, encumber or authorize the issuance, delivery, sale, pledgepledge or encumbrance of, disposition, grant or Encumbrance of (i) any shares of Company Capital Stockits capital stock, or securities convertible into or exchangeable for, or Options or rights of any kind to acquire, any shares of any class or series of its capital stock (ii) any Company Stock Option, (iii) other than pursuant to the exercise of Options and other contractual rights existing on the date hereof which are disclosed in Section 6.1 of the Company Warrant, (iv) any Company Stock Rights or (v) except in the ordinary course of business and consistent with past practice, any Assets of the CompanyDisclosure Schedule); (c) except as permitted under this Agreement, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock or distribution (other securities, property or otherwise, than cash distributions) with respect to any shares of its capital stock (other than dividends paid by a wholly-owned Company Capital Stock Subsidiary to the Company or to any other securitieswholly-owned Company Subsidiary) or enter into any agreement with respect to the voting of capital stock owned by it; (d) reclassify, combine, split or redeem, purchase or otherwise acquiresubdivide, directly or indirectly, any shares of Company Capital Stock its capital stock or other securities (except for repurchases from individuals following their termination of service pursuant to the terms of their pre-existing stock option or purchase agreements)Equity Interests; (d) (ie) acquire (including by merger, consolidation consolidation, or acquisition of stock or Assets) assets), outside of the Ordinary Course of Business, any corporation, partnership interest in any Person or other Entity or business organization or any division thereof or any assets, other than any acquisitions that are in progress on the date hereof and the terms and conditions of which are disclosed in Section 6.1 of the Company Disclosure Schedule; (except in the ordinary course of business and consistent with past practicef) any material amount of Assets; (ii) except for the issuance of Eligible Debt Securities, incur any indebtedness for borrowed money (other than trade payables in the ordinary course of business or in connection with the transactions contemplated by this Agreement or the Specified Litigation) Indebtedness or issue any debt securities; (iii) securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person (other than a wholly-owned Company Subsidiary) for borrowed money, except for (i) Indebtedness incurred in the Ordinary Course of Business, pursuant to existing credit lines disclosed in Section 6.1 of the Company Disclosure Schedule, (ii) Indebtedness owing by any wholly-owned Company Subsidiary to the Company or any other wholly-owned Company Subsidiary, (iii) Indebtedness incurred with respect to acquisitions permitted pursuant to Section 6.1; and (iv) Indebtedness to pay the MIP Payment and any MIP-Related Taxes; provided, that any such Indebtedness (including any related Taxes) described in (iv) above shall be repaid at the Closing pursuant to Section 3.2.1(c). (g) grant any Lien (other than a Permitted Lien) in any of its material assets to secure any Indebtedness, except in connection with such Indebtedness permitted under the preceding Section 6.1; (h) issue any debt securities or assume, endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances (except that the Company may make routine travel other than advances to employees in the ordinary course Ordinary Course of business and consistent Business); (i) authorize, or make any commitment with past practice not in excess of $10,000 in the aggregate); (iv) authorize respect to, any single capital expenditure not included in the Operating Budget that which is in excess of Twenty-Five Thousand Dollars ($100,000 25,000) or capital expenditures not included in the Operating Budget that which are, in the aggregate, in excess of Fifty Thousand Dollars ($250,000; 50,000) for the Company and the Company Subsidiaries taken as a whole other than emergency repairs and repairs compelled by legal or safety requirements, and the Company shall consult with Parent in respect of all such items; (vj) enter into any Contract new line of business outside of its Business; (k) make investments in which Persons other than wholly-owned Subsidiaries, other than in the obligation Ordinary Course of Business; (l) except as set forth in Section 6.1 of the Company exceeds $100,000 or which shall not terminate or be subject to termination for convenience without penalty within 30 days following execution; (e) (i) enter into Disclosure Schedule, adopt or amend any material employmentCompany Benefit Plan, consulting increase in any material manner the compensation or agency Contractfringe benefits of any director, hire officer or employee of the Company or pay any employee or engage material benefit not provided for by any contractor existing Company Benefit Plan, in each case except in order (i) as reasonably necessary to fill a position vacated after the date of this Agreement, promote any employee except in order to fill a position vacated after the date of this Agreement or hire any employee at the Vice President level or abovecomply with Applicable Law, (ii) materially increase in the wages, salary, bonus, commissions, fringe benefits Ordinary Course of Business (including without limitation to address the requirements of written agreements or other compensation or remuneration payable or to become payable to any Contracts the Company Associatesand each Company Subsidiary has entered into as of the date hereof), (iii) grant any severance or termination pay toin connection with entering into, with respect to newly hired employees, or enter into extending with respect to existing employees, any employment or severance arrangement withother compensatory agreements with individuals or directors of the Company or any Company Subsidiary and other executive personnel) in the Ordinary Course of Business, any Person who is a director or officer and comparable to compensatory amounts for individuals of similar responsibility in the Company, (iv) enter in connection with entering into any agreement the retention agreements or arrangement with any current or prospective Company Associate that provides for any programs specified in Section 6.1 of the types of payments or other benefits provided under the Change in Control AgreementsCompany Disclosure Schedule, (v) except for bonuses described general annual salary increases in Annex 6.2(e), pay any bonus or make any discretionary profit-sharing or similar discretionary payment, the Ordinary Course of Business and granted and effective not earlier than the dates the Company has historically granted salary increases or (vi) establish, adopt, enter into, amend the termination or terminate amendment of any Employee Company Benefit Plan that may be subject to Code Section 409A consistent with Code Section 409A and any guidance issued thereunder; provided, such termination or amendment does not increase the Liability of Company or Parent without the express written consent of Parent. (m) except as otherwise contemplated by this Agreement, including Sections 6.1, or as otherwise required by Applicable Law or Governmental Authority, adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the Merger); (n) file any Tax Return taking a position inconsistent with the Company's or any Company Subsidiaries' past practice, except as required by applicable Applicable Law;; or (fo) amend any Change in Control Agreement in any manner favorable knowingly commit or agree to the employee of the Company who is a party to such Change in Control Agreement in respect of the Contemplated Transactions, or amend or waive any of its rights under, or exercise discretion to accelerate the vesting under, any provision of the Company Option Plan, any provision of any Contract evidencing any outstanding Company Stock Option or any restricted stock purchase agreement, or otherwise modify take any of the terms of any outstanding Company Stock Option, the Company Warrant foregoing actions or any other security or any related Contract, or fail to exercise any repurchase right with respect to any shares of Company Capital Stock (unless Acquiror consents in writing to the Company failing to exercise any such repurchase right); (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting methods, policies or procedures (including procedures with respect to the payment of accounts payable and collection of accounts receivable); (h) incur any Tax Liability other than in the normal course of business, or make any material Tax election or settle or compromise any Tax Liability; (i) pay, discharge or satisfy any Liability, other than the payment, discharge or satisfaction of Liabilities (i) incurred in the ordinary course of business and consistent with past practice, (ii) required to be incurred in connection with the transactions contemplated by this Agreement or (iii) incurred in connection with the Specified Litigation; (j) take or fail to take any action that could reasonably be expected to which would result in any of the representations representation or warranties warranty of the Company set forth or the Principal Stockholders contained in this Agreement which is qualified as to materiality (whether by reference to a Material Adverse Effect or otherwise) becoming untrue as of the Effective Time, or any of the other Operative Documents being representation or warranty not so qualified becoming untrue in any material respect, respect (whether by reference to a Material Adverse Effect or in any obligation, agreement or covenant otherwise) as of the Company set forth in this Agreement or any of the other Operative Documents being breached, or in any of the conditions to the Merger specified in Articles IV and V not being satisfied; (k) form any Subsidiary or acquire any equity interest or other interest in any other Entity; (l) purchase, dispose of, license, relinquish or otherwise give up any right with respect to any material Intellectual Property or Intellectual Property Right; (m) enter into or become bound by, or permit any of the Assets owned or used by it to become bound by, any Material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any Material Contract; (n) make any discretionary filing or fail to make any required material filing with any Governmental Entity; (o) change in any material respect any of its personnel policies or other business policies, or any of its methods of accounting or accounting practices in any respect; (p) enter into or amend any lease, sublease, rental agreement, contract of sale, tenancy, license or other Contract relating to any real property; (q) voluntarily file any petition under the United States Bankruptcy Code or make any similar filing or commence any proceeding under any state Law respecting insolvency, or cooperate in any way with or fail to vigorously opposed any such petition, filing or proceeding made, filed or commenced by any third party; (r) commence or settle any Legal Proceeding (except that the Company may settle the Specified Litigation if (i) such settlement is a Lump Sum Settlement or (ii) Acquiror and the Company have agreed as to the Lump Sum Equivalent Amount of such settlement); (s) indemnify, or reimburse any expense of, any Company Associate or agent, in connection with the Specified Litigation or otherwise, except to the extent legally or contractually required pursuant to the Company Certificate of Incorporation, the Company Bylaws or any individual agreements identified in Annex 6.13(a) as in effect on the date of this Agreement; (t) make any expenditure with respect to any item included in any of the “Major Categories” of the Operating Budget that causes the total expenditures made by the Company with respect to such Major Category to exceed 110% of the amount budgeted for such Major Category in the Operating Budget for any fiscal quarter; or (u) agree or commit to do any of the foregoingEffective Time.

Conduct of Business by the. Company During Pending the Secondary Period Unless Acquiror shall otherwise agree in writing, during the Secondary Period, the Merger. The Company covenants and agrees to conduct that, between the Company’s business in and only in, date of this Agreement and the Company earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (a) as may be required by Law, (b) with the prior written consent of Parent (which consent shall not take any action except inbe unreasonably withheld, conditioned or delayed), (c) as may be expressly required or permitted pursuant to this Agreement, or (d) as set forth in Section 6.1 of the Company Disclosure Letter, (x) the business of the Company and its Subsidiaries shall be conducted in the ordinary course of business business, and to the extent consistent with past practice and in accordance with applicable Law and the provisions of all Company Contracts, in each case in all material respects. Without limiting the generality of the foregoing, during the Secondary Periodtherewith, the Company (1) shall use commercially reasonable efforts consistent with past practice to preserve intact the business organization of the Company, to keep available the services of the current officers, employees and consultants of the Company and to preserve the current relationships of the Company with, and the goodwill of, suppliers, customers, development partners, landlords, creditors, licensors, licensees, key employees and other Persons with which the Company has significant business relations, (2) shall use its commercially reasonable efforts to keep in full force all insurance policies referred to in Section 2.18 andpreserve substantially intact the material components of their current business organization, if any such insurance policy is scheduled to expire during the Secondary Period, shall cause such insurance policy to be renewed or replaced (on terms and with coverage substantially equivalent to the terms and coverage of the expiring insurance policy) on or prior to the date of expiration of such insurance policy, (3) shall taken as promptly as practicable notify Acquiror in writing of (A) any written notice or (to the knowledge of the Company) other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the Contemplated Transactionsa whole, and to preserve in all material respects their present relationships with their employees, and the key customers and suppliers with which they have material business relations, taken as a whole (B) any Legal Proceeding commencedprovided, orhowever, to the knowledge of the Company, threatened against, relating to or involving or otherwise affecting that no action by the Company or any of its products or AssetsSubsidiaries, as applicable, with respect to matters specifically addressed by any provision of the immediately succeeding clause (4y) shall cause its officers to report to Acquiror with reasonable frequency concerning the status be deemed a breach of the business foregoing unless such action would constitute a breach of such provision of the Company immediately succeeding clause (y)); and (5y) shall perform and comply with all of its covenants, agreements and obligations in the other Operative Documents. By way of amplification and not limitation, the Company shall not, during the Secondary Period, directly or indirectly do, or propose to do, and shall not permit any of the following without the prior written consent of Acquirorits Subsidiaries to: (a) amend or otherwise change change, in any material respect, the Company Certificate of Incorporation or Company Bylaws if such amendment or change would have, or could reasonably be expected to have, an adverse effect on Acquiror Charter or the Company Bylaws, the organizational or on the Company’s ability to comply with governing documents of any of its obligations under this Agreement Subsidiary or under any of the other Operative DocumentsJV Documentation; (b) except (A) for split, combine, reclassify, redeem, repurchase or otherwise acquire or amend the issuance terms of shares of Company Capital Stock upon the exercise any capital stock or conversion of Company Stock Options outstanding on the date of this Agreement other equity interests or the Company Warrant, (B) for the issuance of shares of Company Capital Stock or equity securities (excluding any convertible debt securities) exercisable or convertible solely into shares of Company Capital Stock, or any combination of the foregoing, solely for cash to a Person who becomes a party to a Key Stockholder Agreement in favor of Acquiror contemporaneously with such issuance, (C) for the issuance of Eligible Debt Securities solely for cash to a Person who becomes a party to a Key Stockholder Agreement in favor of Acquiror contemporaneously with such issuance and (D) for the issuance of Company Stock Options with respect to shares of Company Common Stock (to the extent the reservation of such shares for issuance under the Company Option Plan has been approved by the Stockholders prior to the date of this Agreement), issue, sell, contract to issue or sell, pledge, dispose of, grant, encumber or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of (i) any shares of Company Capital Stock, (ii) any Company Stock Option, (iii) the Company Warrant, (iv) any Company Stock Rights or (v) except in the ordinary course of business and consistent with past practice, any Assets of the Companyrights; (c) issue, sell, pledge, dispose, encumber or grant any shares of its or its Subsidiaries’ capital stock, or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any shares of its or its Subsidiaries’ capital stock or any phantom stock plan or stock appreciation rights except for transactions among the Company and its direct or indirect wholly owned Subsidiaries or among the Company’s direct or indirect wholly owned Subsidiaries; (d) declare, set asideauthorize, make or pay any dividend or other distribution, payable in cash, stock or other securitiesstock, property or otherwise, with respect to the Company’s or any shares of Company Capital Stock its Subsidiaries’ capital stock or other securitiesequity interests, other than (i) dividends paid by any Subsidiary of the Company to the Company or redeemany wholly owned Subsidiary of the Company, purchase or otherwise acquire, directly or indirectly, any shares of Company Capital Stock and (ii) cash dividends with respect to the Company’s capital stock or other securities (except for repurchases from individuals following their termination of service pursuant equity interests; provided that, after giving effect to the terms of their pre-existing stock option or purchase agreements)any cash dividends, Company Cash is at least $20,000,000; (de) (i) acquire (including by merger, consolidation or acquisition of stock or Assets) any corporation, partnership or other Entity or business organization or division thereof or (except in the ordinary course of business and consistent with past practice) any material amount of Assets; (ii) except for or as required under the issuance of Eligible Debt Securities, incur any indebtedness for borrowed money (other than trade payables in the ordinary course of business or in connection with the transactions contemplated by this Agreement or the Specified Litigation) or issue any debt securities; (iii) assume, guarantee or endorse, or otherwise become responsible for, the obligations existing terms of any PersonCompany Benefit Plan, or make any loans or advances (except that the Company may make routine travel advances to employees in the ordinary course of business and consistent with past practice not in excess of $10,000 in the aggregate); (iv) authorize any single capital expenditure not included in the Operating Budget that is in excess of $100,000 or capital expenditures not included in the Operating Budget that are, in the aggregate, in excess of $250,000; or (v) enter into any Contract in which the obligation of the Company exceeds $100,000 or which shall not terminate or be subject to termination for convenience without penalty within 30 days following execution; (e) (i) enter into or amend grant any material employment, consulting or agency Contract, hire any employee or engage any contractor except increase in order to fill a position vacated after the date of this Agreement, promote any employee except in order to fill a position vacated after the date of this Agreement or hire any employee at the Vice President level or above, (ii) materially increase the wages, salary, bonus, commissions, fringe benefits bonus or other compensation compensation, remuneration or remuneration payable or to become payable to any Company Associates, (iii) grant any severance or termination pay to, or enter into any employment or severance arrangement with, any Person who is a director or officer benefits of the Company, (iv) enter into any agreement or arrangement with any current or prospective Company Associate that provides for any former director, officer or employee of the types of payments or other benefits provided under the Change in Control Agreements, (v) except for bonuses described in Annex 6.2(e), pay any bonus or make any discretionary profit-sharing or similar discretionary payment, Company or (viii) establish, adopt, enter into, materially amend or terminate any Employee Company Benefit Plan (or any arrangement which if in existence as of the date hereof would constitute a Company Benefit Plan), except as required to the extent such action does not increase the annual costs of the Company and its Subsidiaries with respect to such Company Benefit Plans and arrangements by applicable Lawmore than $1,000,000 in the aggregate; (f) amend any Change in Control Agreement in any manner favorable to the employee acquire (including by merger, consolidation, or acquisition of the Company who is a party to such Change in Control Agreement stock or assets), except in respect of any merger, consolidation, business combination among the Contemplated Transactions, Company and its wholly owned Subsidiaries or amend or waive any of its rights under, or exercise discretion to accelerate among the vesting underCompany’s wholly owned Subsidiaries, any provision of the Company Option Plancorporation or other business entity, any provision business or division of any Contract evidencing any outstanding Company Stock Option or any restricted stock purchase agreement, or otherwise modify any of the terms of any outstanding Company Stock Option, the Company Warrant or any other security or any related Contract, or fail to exercise any repurchase right with respect to any shares of Company Capital Stock (unless Acquiror consents in writing to the Company failing to exercise any such repurchase right); (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting methods, policies or procedures (including procedures with respect to the payment of accounts payable and collection of accounts receivable); (h) incur any Tax Liability other than in the normal course of business, or make any material Tax election or settle or compromise any Tax Liability; Third Party (i) pay, discharge having aggregate purchase prices (including liabilities assumed) in excess of $10,000,000 or satisfy any Liability, other than the payment, discharge or satisfaction of Liabilities (i) incurred in the ordinary course of business and consistent with past practice, (ii) required to be incurred in connection with the transactions contemplated by this Agreement or (iii) incurred in connection with the Specified Litigation; (j) take or fail to take any action that could reasonably be expected to result in an impediment to obtaining all Consents under any Antitrust Laws; (g) incur any or amend in any material respect the terms of, any indebtedness for borrowed money, or assume or guarantee any such indebtedness for any Person (other than a Subsidiary), except for indebtedness incurred (i) under the Company’s existing credit facilities or incurred to replace, renew, extend, refinance or refund any existing indebtedness on market terms and conditions, (ii) pursuant to agreements in effect prior to the execution of this Agreement, (iii) under letters of credit issued in the ordinary course of business or (iv) as otherwise required in the ordinary course of business consistent with past practice, provided that in all cases total indebtedness for borrowed money as of the representations Effective Time will not exceed $45,000,000; (h) enter into, modify or warranties amend any Company Material Contract with a term longer than one (1) year and which cannot be terminated without material penalty upon notice of one-hundred and eighty (180) days or less, other than (i) in the ordinary course of business or (ii) in respect of matters or transactions permitted by Section 6.1(f), Section 6.1(g), Section 6.1(i) or Section 6.1(n); (i) make or commit to make any capital expenditures, other than (i) capital expenditures as set forth in Section 6.1(i) of the Company set forth Disclosure Letter or (ii) any other capital expenditures not in excess of $20,000,000, provided that, no capital expenditures shall be made under this Agreement subclause (ii) in respect of any greenfield project or greenfield opportunity that is not already committed as of the date hereof; (j) make any material change to its methods of accounting in effect at December 31, 2016, except (i) as required by GAAP (or any interpretation thereof), a Governmental Authority or a quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization), (ii) to permit the audit of the other Operative Documents being untrue Company’s financial statements in any material respect, compliance with GAAP or (iii) as required by a change in any obligation, agreement or covenant of the Company set forth in this Agreement or any of the other Operative Documents being breached, or in any of the conditions to the Merger specified in Articles IV and V not being satisfiedapplicable Law; (k) form except as contemplated by this Agreement, solely with respect to the Company or any Subsidiary non-wholly owned Subsidiary, adopt or acquire any equity interest enter into a plan of complete or other interest in any other Entitypartial liquidation or dissolution; (l) purchaseexcept with respect to Taxes (which are governed by Section 6.1(m)), dispose of, license, relinquish settle or compromise any litigation other than (i) in the ordinary course of business consistent with past practice or (ii) settlements or compromises of litigation where the amount paid (less the amount reserved for such matters by the Company on the most recent balance sheet in the Company Financial Statements or otherwise give up covered by insurance) in settlement or compromise, in each case, that is not material to the Company and its Subsidiaries, taken as a whole; (m) other than consistent with past practice, make or change any right material Tax election, change any material method of Tax accounting, settle or compromise any material Tax liability, enter into any closing agreement with any Governmental Authority with respect to any material Intellectual Property Tax or Intellectual Property Right; (m) enter into or become bound by, or permit surrender any right to claim a refund for a material amount of the Assets owned or used by it to become bound by, any Material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any Material ContractTax; (n) make other than in the ordinary course of business or consistent with past practice (i) sell, transfer, license, mortgage, encumber or otherwise dispose of any discretionary filing of its or fail their material properties or assets to make any required material filing with Person, other than any Governmental Entity;sale or other disposition for cash of any of the assets set forth on Section 6.1(n) of the Company Disclosure Letter, the Investment Portfolio or Liens securing obligations under existing credit facilities, or (ii) cancel, release or assign any indebtedness of any Person owed to it or any claims held by it against any Person, in each case, except for transactions among the Company and its direct or indirect wholly owned Subsidiaries or among the Company’s direct or indirect wholly owned Subsidiaries; or (o) change in any material respect any of its personnel policies or other business policies, or any of its methods of accounting or accounting practices in any respect; (p) enter into or amend any lease, sublease, rental agreement, contract of sale, tenancy, license or other Contract relating to any real property; (q) voluntarily file any petition under the United States Bankruptcy Code or make any similar filing or commence any proceeding under any state Law respecting insolvency, or cooperate in any way with or fail to vigorously opposed any such petition, filing or proceeding made, filed or commenced by any third party; (r) commence or settle any Legal Proceeding (except that the Company may settle the Specified Litigation if (i) such settlement is a Lump Sum Settlement or (ii) Acquiror and the Company have agreed as to the Lump Sum Equivalent Amount of such settlement); (s) indemnify, or reimburse any expense of, any Company Associate or agent, in connection with the Specified Litigation or otherwise, except to the extent legally or contractually required pursuant to the Company Certificate of Incorporation, the Company Bylaws or any individual agreements identified in Annex 6.13(a) as in effect on the date of this Agreement; (t) make any expenditure with respect to any item included in any of the “Major Categories” of the Operating Budget that causes the total expenditures made by the Company with respect to such Major Category to exceed 110% of the amount budgeted for such Major Category in the Operating Budget for any fiscal quarter; or (u) agree or commit agreement to do any of the foregoing.

Conduct of Business by the. Company During Pending the Secondary Period Unless Acquiror Merger. Between the date of this Agreement and the earliest to occur of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except as (a) may be required by Law, (b) may be expressly agreed in writing by Parent (which agreement shall otherwise agree in writingnot be unreasonably withheld, during conditioned or delayed) or (c) set forth on Section 6.1of the Secondary PeriodCompany Disclosure Schedule, (i) other than as expressly required by this Agreement and subject to clause (ii) below, the Company covenants shall, and agrees to conduct the Company’s shall cause each of its Subsidiaries to, carry on its business in and only in, and the Company shall not take any action except in, the ordinary course of business and consistent with past practice and in accordance with applicable Law and and, to the provisions of all Company Contractsextent consistent therewith, in each case in all material respects. Without limiting the generality of the foregoing, during the Secondary Period, the Company (1) shall use commercially reasonable best efforts consistent with past practice to preserve substantially intact the its current business organization of the Companyorganizations, to keep available the services of the its current officers, officers and employees and consultants of the Company and to preserve the current its relationships of the Company withwith significant Governmental Authorities, and the goodwill of, suppliersjoint venture partners, customers, development partners, landlords, creditorssuppliers, licensors, licensees, key employees distributors, wholesalers, lessors and other Persons with which the Company has similar Persons, in each case, having significant business relations, (2) shall use commercially reasonable efforts to keep in full force all insurance policies referred to in Section 2.18 and, if any such insurance policy is scheduled to expire during the Secondary Period, shall cause such insurance policy to be renewed dealings or replaced (on terms and other material relationships with coverage substantially equivalent to the terms and coverage of the expiring insurance policy) on or prior to the date of expiration of such insurance policy, (3) shall as promptly as practicable notify Acquiror in writing of (A) any written notice or (to the knowledge of the Company) other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the Contemplated Transactions, and (B) any Legal Proceeding commenced, or, to the knowledge of the Company, threatened against, relating to or involving or otherwise affecting the Company or any of its products Subsidiaries and to preserve the goodwill and maintain satisfactory relationships with Persons having material business relationships with the Company or Assets, any of its Subsidiaries and (4ii) shall cause its officers to report to Acquiror with reasonable frequency concerning without limiting the status generality of the business of the Company and foregoing clause (5) shall perform and comply with all of its covenants, agreements and obligations in the other Operative Documents. By way of amplification and not limitationi), the Company shall not, during the Secondary Period, directly or indirectly do, or propose to do, not and shall not permit any of its Subsidiaries to and, only to the following without extent the prior written consent of AcquirorCompany has any right or ability to cause, use reasonable best efforts to exercise such right or ability to cause PELSA and its Subsidiaries not to: (a) amend or otherwise change modify the Company Certificate Memorandum of Incorporation or Company Bylaws if such amendment or change would have, or could reasonably be expected to have, an adverse effect on Acquiror Association or the Company Articles of Association (or, in any material respect, such equivalent organizational or on the Company’s ability to comply with any governing documents of its obligations under this Agreement or under any of the Subsidiaries of the Company), other Operative Documentsthan as contemplated by this Agreement; (b) except (A) for the issuance of shares of Company Capital Stock upon the exercise or conversion of Company Stock Options outstanding on the date of this Agreement or transactions among the Company Warrant, (B) for and its wholly-owned Subsidiaries or among the issuance of shares of Company Capital Stock or equity securities (excluding any convertible debt securities) exercisable or convertible solely into shares of Company Capital Stock, or any combination of the foregoing, solely for cash to a Person who becomes a party to a Key Stockholder Agreement in favor of Acquiror contemporaneously with such issuance, (C) for the issuance of Eligible Debt Securities solely for cash to a Person who becomes a party to a Key Stockholder Agreement in favor of Acquiror contemporaneously with such issuance and (D) for the issuance of Company Stock Options with respect to shares of Company Common Stock (to the extent the reservation of such shares for issuance under the Company Option Plan has been approved by the Stockholders prior to the date of this Agreement)Company’s wholly-owned Subsidiaries, issue, sell, contract to issue or sell, pledge, dispose of, grantdispose, encumber or authorize grant any shares, or any options, warrants, convertible securities or other rights of any kind to acquire any such shares or rights settled in cash or other property based in whole or in part on the issuance, sale, pledge, disposition, grant or Encumbrance value of (i) any shares of Company Capital Stock, (ii) any Company Stock Option, (iii) the Company Warrant, (iv) any Company Stock Rights or (v) except in the ordinary course of business and consistent with past practice, any Assets of the Companysuch shares; (c) (i) declare, set asideauthorize, make or pay any dividend or other distribution, payable in cash, stock or other securitiesstock, property or otherwise, with respect other than dividends paid by PELSA, any wholly-owned Subsidiary of the Company to the Company or any wholly-owned Subsidiary of the Company; (ii) split, combine or reclassify any shares of Company Capital Stock capital stock or other securities, Equity Interests; or (iii) redeem, purchase or otherwise acquire, directly or indirectly, acquire any shares of Company Capital Stock capital stock or other securities (except for repurchases from individuals following their termination of service pursuant to the terms of their pre-existing stock option or purchase agreements)Equity Interests; (d) (i) acquire (including by merger, consolidation or acquisition of stock or Assets) any corporation, partnership or other Entity or business organization or division thereof or (except in the ordinary course of business and consistent with past practice) any material amount of Assets; (ii) except for the issuance of Eligible Debt Securities, incur any indebtedness for borrowed money (other than trade payables in the ordinary course of business or in connection with the transactions contemplated by this Agreement or the Specified Litigation) or issue any debt securities; (iii) assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances (except that as required pursuant to the Company may make routine travel advances to employees Benefit Plans in the ordinary course of business and consistent with past practice not in excess of $10,000 in the aggregate); (iv) authorize any single capital expenditure not included in the Operating Budget that is in excess of $100,000 or capital expenditures not included in the Operating Budget that are, in the aggregate, in excess of $250,000; or (v) enter into any Contract in which the obligation effect as of the Company exceeds $100,000 date hereof or which shall not terminate or be subject to termination for convenience without penalty within 30 days following execution; (e) as otherwise required by Law, (i) enter into or amend any material employment, consulting or agency Contract, hire any employee or engage any contractor except in order to fill a position vacated after the date of this Agreement, promote any employee except in order to fill a position vacated after the date of this Agreement or hire any employee at the Vice President level or above, (ii) materially increase the wages, salary, bonus, commissions, fringe benefits compensation or other compensation or remuneration benefits payable or to become payable to employees, directors or executive officers or grant any Company Associatesnew short or long term incentive compensation awards, (iiiii) grant any severance or termination pay to, or enter into any employment or severance arrangement agreement with, any Person who is a employee, director or officer of the Companyexecutive officer, (iii) enter into, terminate or amend any employment agreement with any employee or executive officer, (iv) enter into any agreement or arrangement with any current or prospective Company Associate that provides for any of the types of payments or other benefits provided under the Change in Control Agreementsterminate, (v) except for bonuses described in Annex 6.2(e), pay any bonus or make any discretionary profit-sharing or similar discretionary payment, or (vi) establish, adopt, enter into, into or amend or terminate any Employee Company Benefit Plan (or arrangement that would be a Company Benefit Plan were it effective as of the date hereof) or (v) enter into any new, or amend any existing, collective bargaining agreement; (e) terminate the employment of any employee of the Company or its Subsidiaries who is a party to any employment agreement and who makes in excess of $50,000 annually, other than as a direct result of such employee’s (i) willful failure to perform the duties or responsibilities of his employment, (ii) engaging in serious misconduct, or (iii) being convicted of or entering a plea of guilty to any crime; (f) forgive any loans to employees, officers or directors or any of their respective affiliates; (g) grant, accelerate the vesting of, confer or award options, convertible securities, restricted stock, restricted stock units, performance stock units, stock appreciation rights or other rights to acquire any capital stock or any equity-based award based in whole or in part on capital stock, whether settled in cash, securities or other property, or take any action not otherwise contemplated by this Agreement to cause to be exercisable any otherwise unexercisable option or other equity-based award under any existing plan; (h) acquire (including by merger, consolidation, or acquisition of stock or assets) any ownership interests in any corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof other than acquisitions of assets up to an aggregate amount of $100,000, supplies, dealer accounts and inventory, in each case, in the ordinary course of business consistent with past practice; (i) dispose of, transfer, lease, license, mortgage, pledge, encumber or subject to a Lien any material assets of the Company or any of its Subsidiaries, other than (i) Company Owned IP, to the extent permitted in (j) below, (ii) sales of inventory made in the ordinary course of business consistent with past practice or (iii) in connection with any transaction solely between the Company and any wholly-owned Subsidiary of the Company or among any wholly-owned Subsidiaries of the Company; (j) dispose of, transfer, lease, license, mortgage, pledge or encumber any material Company Owned IP (other than non-exclusive licenses granted to end users in connection with sales of finished products in the ordinary course of business); (k) abandon, allow to lapse or fail to maintain any material Intellectual Property Rights in the Company Owned IP; (l) incur any Indebtedness or guarantee any Indebtedness for any Person other than incurrences of or guarantees for unsecured Indebtedness in an aggregate amount not to exceed $100,000 and in the ordinary course of business consistent with past practice; (m) adopt any budget, work program or operating plan or otherwise authorize, make any commitment with respect to any capital expenditure or amend or make any capital expenditure not contemplated by the capital expenditure budget set forth in Section 6.1(m) of the Company Disclosure Schedule; (n) (i) amend, terminate, cancel or materially modify or waive, release or assign any material rights or claims with respect to any Company Material Contract other than in the ordinary course of business or (ii) enter into any new Contract that if entered into prior to the date hereof, would have been required to be listed in Section 4.16 of the Company Disclosure Schedule as a Company Material Contract or (iii) take any action that results in any breach of or constitutes a default under or results in the cancellation of any Company Material Contract; (o) invest the cash of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practice; provided that the Company and its Subsidiaries shall take the actions set forth on Section 6.1(o) of the Company Disclosure Schedule; (p) loan, advance, invest or make a capital contribution to or in any Person, other than a wholly-owned Subsidiary of the Company; (q) waive, release, assign, settle or compromise any (i) governmental complaint or (ii) claims, liabilities or obligations arising out of, related to or in connection with litigation other than for compromises, settlements or agreements that (x) involve only the payment of monetary damages not in excess of $100,000 in any single instance and $250,000 in the aggregate and in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries or (y) are permitted under Section 6.10; (r) make any material change in accounting principles, policies, practices, procedures or methods in effect at December 31, 2013, except (i) as required by GAAP (or any interpretation or enforcement thereof) or Regulation S-X of the Exchange Act or other rule or regulation promulgated by the SEC, or (ii) as required by applicable Law; (fs) amend any Change in Control Agreement in any manner favorable to except as required by Law or the employee of the Company who is a party to such Change in Control Agreement in respect of the Contemplated Transactionspublished interpretation or enforcement thereof, make or amend or waive any of its rights under, or exercise discretion to accelerate the vesting under, any provision of the Company Option Plan, any provision of any Contract evidencing any outstanding Company Stock Option or any restricted stock purchase agreement, or otherwise modify any of the terms of any outstanding Company Stock Option, the Company Warrant or any other security or any related Contract, or fail to exercise any repurchase right with respect to any shares of Company Capital Stock (unless Acquiror consents in writing to the Company failing to exercise any such repurchase right); (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting methods, policies or procedures (including procedures with respect to the payment of accounts payable and collection of accounts receivable); (h) incur any Tax Liability other than in the normal course of business, or make rescind any material Tax election election, change any material Tax method, file any amended Tax Return that is material, or settle or compromise any material federal, state, provincial, local or foreign income Tax Liability; (i) pay, discharge or satisfy any Liability, other than the payment, discharge or satisfaction of Liabilities (i) incurred in the ordinary course of business and consistent with past practice, (ii) required to be incurred in connection with the transactions contemplated by this Agreement or (iii) incurred in connection with the Specified Litigation; (j) take or fail to take any action that could reasonably be expected to result in any of the representations or warranties of the Company set forth in this Agreement or any of the other Operative Documents being untrue in any material respect, or in any obligation, agreement or covenant of the Company set forth in this Agreement or any of the other Operative Documents being breached, or in any of the conditions to the Merger specified in Articles IV and V not being satisfied; (k) form any Subsidiary or acquire any equity interest or other interest in any other Entity; (l) purchase, dispose of, license, relinquish or otherwise give up any right with respect to any material Intellectual Property or Intellectual Property Right; (m) enter into or become bound by, or permit any of the Assets owned or used by it to become bound by, any Material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any Material Contract; (n) make any discretionary filing or fail to make any required material filing with any Governmental Entity; (o) change in any material respect any of its personnel policies or other business policies, or any of its methods of accounting or accounting practices in any respect; (p) enter into or amend any lease, sublease, rental agreement, contract of sale, tenancy, license or other Contract relating to any real property; (q) voluntarily file any petition under the United States Bankruptcy Code or make any similar filing or commence any proceeding under any state Law respecting insolvency, or cooperate in any way with or fail to vigorously opposed any such petition, filing or proceeding made, filed or commenced by any third party; (r) commence or settle any Legal Proceeding (except that the Company may settle the Specified Litigation if (i) such settlement is a Lump Sum Settlement or (ii) Acquiror and the Company have agreed as to the Lump Sum Equivalent Amount of such settlement); (s) indemnify, or reimburse any expense of, any Company Associate or agent, in connection with the Specified Litigation or otherwise, except to the extent legally or contractually required pursuant to the Company Certificate of Incorporation, the Company Bylaws or any individual agreements identified in Annex 6.13(a) as in effect on the date of this Agreementliability; (t) make fail to maintain in full force and effect insurance policies covering the Company and its Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practice; (u) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any expenditure of its Subsidiaries; (v) convene any regular or special meeting (or any adjournment thereof) of the Company Shareholders (other than the Shareholders’ Meeting and, not prior to March 31, 2015, the annual Shareholders meeting of the Company) or enter into any Contract or understanding or arrangement with respect to the voting or registration of the Company Shares or any item included other Equity Interests of the Company; (w) enter into any new line of business outside the Company’s existing business segments; (x) enter into, modify or terminate any transactions or Contracts with any Affiliate of the Company; (y) amend or modify in any material respect the engagement letter of any of the “Major Categories” of the Operating Budget that causes the total expenditures made by the Company with respect to such Major Category to exceed 110% of the amount budgeted for such Major Category in the Operating Budget for Company’s financial advisors; or (z) enter into any fiscal quarter; or (u) agree or commit Contract to do any of the foregoing.

Conduct of Business by the. Company During Pending the Secondary Period Unless Acquiror Closing. Covance covenants and agrees that, between the date of this Agreement and the Closing, except as set forth in Section 6.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise agree in writing, during the Secondary Period, : (a) Covance shall cause the Company covenants and agrees to conduct the Company’s business Business in and only in, and the Company shall not take any action except in, the ordinary course of business and consistent with past practice and in accordance with applicable Law and the provisions of all Company Contracts, in each case in all material respectspractice. Without limiting the generality of the foregoing, during between the Secondary Perioddate of this Agreement and the Closing, Covance shall cause the Company (1) shall to use commercially reasonable efforts consistent with past practice to to: (i) preserve substantially intact the business organization of the Companyand preserve its relationships with its customers, to keep available the services of the current officerssuppliers, employees and consultants of others having business relations with the Company and to preserve the current relationships of the Company with, and the goodwill of, suppliers, customers, development partners, landlords, creditors, licensors, licensees, key employees and other Persons with which the Company has significant business relations, (2) shall use commercially reasonable efforts to keep in full force all insurance policies referred to in Section 2.18 and, if any such insurance policy is scheduled to expire during the Secondary Period, shall cause such insurance policy to be renewed or replaced (on terms and with coverage substantially equivalent to the terms and coverage of the expiring insurance policy) on or prior to the date of expiration of such insurance policy, (3) shall as promptly as practicable notify Acquiror in writing of (A) any written notice or (to the knowledge of the Company) other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the Contemplated Transactions, and (B) any Legal Proceeding commenced, or, to the knowledge of the Company, threatened against, relating to or involving or otherwise affecting the Company or any of its products or Assets, (4) shall cause its officers to report to Acquiror with reasonable frequency concerning the status of the business of the Company; (ii) keep available the services of its present officers and employees, provided that neither Covance nor the Company and shall be required to increase the compensation of, or provide any other retention incentive to, any such officers or employees beyond that currently provided; (5iii) shall perform and comply with in all material respects all of its covenants, agreements obligations under all Material Contracts (except those being contested in good faith); (iv) maintain in full force and obligations effect and in the other Operative Documents. By way same amounts insurance policies comparable in amount and scope of amplification coverage to that now maintained by the Company, and not limitationprovide copies to the Purchaser of all current and historical occurrence-based insurance policies of or providing benefit to the Company for any occurrences prior to the Closing Date (provided that the Purchaser shall reimburse Covance for the reasonable out-of-pocket expenses it incurs in providing such copies); and (v) deliver all notices required to be delivered, and obtain all consents required to be obtained, in connection with the consummation of the transactions contemplated by this Agreement under the terms of any Material Contract, provided, however, Covance and the Company shall notnot be required to pay any consideration in connection therewith; provided, during however, that no action by the Secondary Period, directly or indirectly do, or propose Company with respect to do, matters specifically addressed by any provision of the following without the prior written consent Section 6.01(b) shall be deemed a breach of Acquiror:this Section 6.01(a) unless such action would constitute a breach of any such provision of Section 6.01(b); and (ab) Covance shall cause the Company to not (except as contemplated by any other provision of this Agreement): (i) amend or otherwise change the Company Certificate of Incorporation or Company Bylaws if such amendment or change would have, or could reasonably be expected to have, an adverse effect on Acquiror or By-laws of the Company or on take any action with respect to liquidation or dissolution of the Company’s ability to comply with any of its obligations under this Agreement or under any of the other Operative Documents; (bii) except (A) for the issuance of issue or sell any additional shares of Company Capital Stock upon the exercise capital stock of, or conversion of Company Stock Options outstanding on other equity interests in, the date of this Agreement Company, or the Company Warrant, (B) securities convertible into or exchangeable for the issuance of such shares of Company Capital Stock or equity securities (excluding any convertible debt securities) exercisable or convertible solely into shares of Company Capital Stock, or any combination of the foregoing, solely for cash to a Person who becomes a party to a Key Stockholder Agreement in favor of Acquiror contemporaneously with such issuance, (C) for the issuance of Eligible Debt Securities solely for cash to a Person who becomes a party to a Key Stockholder Agreement in favor of Acquiror contemporaneously with such issuance and (D) for the issuance of Company Stock Options with respect to shares of Company Common Stock (to the extent the reservation of such shares for issuance under the Company Option Plan has been approved by the Stockholders prior to the date of this Agreement), issue, sell, contract to issue or sell, pledge, dispose of, grant, encumber or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of (i) any shares of Company Capital Stock, (ii) any Company Stock Option, interests; (iii) the Company Warrant, (iv) any Company Stock Rights or (v) except in the ordinary course of business and consistent with past practice, sell, assign, transfer, lease or otherwise dispose of or agree to sell, assign, transfer, lease or otherwise dispose of any Assets of the material assets or properties of the Company; (civ) declareincur any Indebtedness (other than Intercompany Indebtedness), set asideor, make or pay any dividend or other distribution, payable in cash, stock or other securities, property or otherwise, with respect to any shares of Company Capital Stock or other securities, or redeem, purchase or otherwise acquire, directly or indirectly, any shares of Company Capital Stock or other securities (except for repurchases from individuals following their termination of service pursuant to the terms of their pre-existing stock option or purchase agreements); (d) (i) acquire (including by merger, consolidation or acquisition of stock or Assets) any corporation, partnership or other Entity or business organization or division thereof or (except in the ordinary course of business and consistent with past practice) any material amount of Assets; (ii) except for the issuance of Eligible Debt Securities, incur any indebtedness for borrowed money (other than trade payables in the ordinary course of business or in connection with the transactions contemplated by this Agreement or the Specified Litigation) or issue any debt securities; (iii) assume, guarantee or endorse, make any accommodation or otherwise become responsible for, the obligations of any Person, or make any loans or advances advances; (v) take any action to create any Encumbrance on any of the material assets or properties of the Company, other than Permitted Encumbrances; (vi) acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets or partnership or limited liability company interests) any business or any Person or any division thereof or interest therein; (vii) except for expenditures or commitments involving amounts less than $100,000, or except as provided in the Company's budget for the year 2001 as set forth in Section 6.01(b)(vii) of the Disclosure Schedule, make any commitment for any capital expenditures (provided however, that notwithstanding the foregoing, the Company shall not, in any event, make any commitments with respect to (1) any material additions to the Company's purification capacity, (2) any expansion of the square footage of the Facility or (3) the leasing of a new process development facility without the prior written consent of the Purchaser); (viii) amend, terminate, cancel, settle or compromise any material claim of the Company; (ix) permit a change in its methods of maintaining its books, accounts or business records or, except as required by U.S. GAAP (in which event prior notice shall be given to the Purchaser), change any of its accounting principles or the methods by which such principles are applied for tax or financial reporting purposes; (x) except as otherwise provided in this Agreement, enter into any agreement, arrangement or transaction with Covance or any Affiliate of Covance (other than the Company) or any Minority Shareholder under which the Company will have any liability or obligation on or after the Closing Date; (xi) except in the ordinary course of business consistent with past practice, amend, modify or supplement any Material Contract; (xii) declare, pay or set aside for payment any dividend or other distribution in respect of the capital stock of the Company and not redeem, combine, split, subdivide, purchase or otherwise acquire any shares of the capital stock or other securities of the Company or rights or obligations convertible into or exchangeable for any shares of the capital stock or other securities of the Company or obligations convertible into such, or any options, warrants or other rights to purchase or subscribe to any of the foregoing; (xiii) enter into, modify or extend in any manner the terms of any employment, severance or similar agreements with officers and directors nor grant any increase in the compensation of officers, directors or employees, whether now or hereafter payable (except that the Company may make routine travel advances to employees for compensation increases in the ordinary course of business and consistent with past practice not in excess of $10,000 in the aggregatewith respect to employees other than executive officers and directors); (iv) authorize , including any single capital expenditure not included in the Operating Budget that is in excess of $100,000 such increase pursuant to any option, bonus, stock purchase, pension, profit-sharing, deferred compensation, retirement or capital expenditures not included in the Operating Budget that areother plan, in the aggregatearrangement, in excess of $250,000; contract or (v) enter into any Contract in which the obligation of the Company exceeds $100,000 or which shall not terminate or be subject to termination for convenience without penalty within 30 days following executioncommitment; (exiv) (i) enter into waive any rights under any Material Contract or amend under any material employmentconfidentiality, consulting nonsolicitation or agency Contract, hire noncompetition agreement or any employee agreement with any party relating to the sale or engage any contractor except in order to fill a position vacated after the date of this Agreement, promote any employee except in order to fill a position vacated after the date of this Agreement or hire any employee at the Vice President level or above, (ii) materially increase the wages, salary, bonus, commissions, fringe benefits or other compensation or remuneration payable or to become payable to any Company Associates, (iii) grant any severance or termination pay to, or enter into any employment or severance arrangement with, any Person who is a director or officer possible sale of the Company, ; (ivxv) enter into any agreement or arrangement with any current or prospective Company Associate that provides for any of the types of payments or other benefits provided under the Change in Control Agreements, (v) except for bonuses described in Annex 6.2(e), pay any bonus or make any discretionary profit-sharing or similar discretionary payment, or (vi) establish, adopt, enter into, amend or terminate any Employee Benefit Plan except as required by applicable Law;contract, agreement, commitment or arrangement relating to the acquisition, disposition or leasing of real property; or (f) amend any Change in Control Agreement in any manner favorable to the employee of the Company who is a party to such Change in Control Agreement in respect of the Contemplated Transactions, or amend or waive any of its rights under, or exercise discretion to accelerate the vesting under, any provision of the Company Option Plan, any provision of any Contract evidencing any outstanding Company Stock Option or any restricted stock purchase agreement, or otherwise modify any of the terms of any outstanding Company Stock Option, the Company Warrant or any other security or any related Contract, or fail to exercise any repurchase right with respect to any shares of Company Capital Stock (unless Acquiror consents in writing to the Company failing to exercise any such repurchase right); (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting methods, policies or procedures (including procedures with respect to the payment of accounts payable and collection of accounts receivable); (h) incur any Tax Liability other than in the normal course of business, or make any material Tax election or settle or compromise any Tax Liability; (i) pay, discharge or satisfy any Liability, other than the payment, discharge or satisfaction of Liabilities (i) incurred in the ordinary course of business and consistent with past practice, (ii) required to be incurred in connection with the transactions contemplated by this Agreement or (iii) incurred in connection with the Specified Litigation; (j) take or fail to take any action that could reasonably be expected to result in any of the representations or warranties of the Company set forth in this Agreement or any of the other Operative Documents being untrue in any material respect, or in any obligation, agreement or covenant of the Company set forth in this Agreement or any of the other Operative Documents being breached, or in any of the conditions to the Merger specified in Articles IV and V not being satisfied; (k) form any Subsidiary or acquire any equity interest or other interest in any other Entity; (l) purchase, dispose of, license, relinquish or otherwise give up any right with respect to any material Intellectual Property or Intellectual Property Right; (m) enter into or become bound by, or permit any of the Assets owned or used by it to become bound by, any Material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any Material Contract; (n) make any discretionary filing or fail to make any required material filing with any Governmental Entity; (o) change in any material respect any of its personnel policies or other business policies, or any of its methods of accounting or accounting practices in any respect; (pxvi) enter into or amend any leasecontract, sublease, rental agreement, contract of sale, tenancy, license commitment or other Contract relating to any real property; (q) voluntarily file any petition under the United States Bankruptcy Code or make any similar filing or commence any proceeding under any state Law respecting insolvency, or cooperate in any way with or fail to vigorously opposed any such petition, filing or proceeding made, filed or commenced by any third party; (r) commence or settle any Legal Proceeding (except that the Company may settle the Specified Litigation if (i) such settlement is a Lump Sum Settlement or (ii) Acquiror and the Company have agreed as to the Lump Sum Equivalent Amount of such settlement); (s) indemnify, or reimburse any expense of, any Company Associate or agent, in connection with the Specified Litigation or otherwise, except to the extent legally or contractually required pursuant to the Company Certificate of Incorporation, the Company Bylaws or any individual agreements identified in Annex 6.13(a) as in effect on the date of this Agreement; (t) make any expenditure arrangement with respect to any item included matter set forth in any of the “Major Categories” of the Operating Budget that causes the total expenditures made by the Company with respect to such Major Category to exceed 110% of the amount budgeted for such Major Category in the Operating Budget for any fiscal quarter; or (u) agree or commit to do any of the foregoingSection 6.01(b).

Conduct of Business by the. Company During Pending the Secondary Period Unless Acquiror Merger. Between the date of this Agreement and the earliest to occur of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (a) as may be required by Law, (b) as may be agreed in writing by Parent (which consent shall otherwise agree not be unreasonably withheld, delayed or conditioned), (c) as required pursuant to this Agreement, or (d) as set forth in writing, during the Secondary Period, Section 6.1 of the Company covenants Disclosure Letter, (x) the Company shall, and agrees to conduct the Company’s shall cause each of its Subsidiaries to, carry on its business in and only in, and the Company shall not take any action except in, all material respects in the ordinary course of business and and, subject to the proviso in Section 6.3(a), to the extent consistent with past practice and in accordance with applicable Law and the provisions of all Company Contractstherewith, in each case in all material respects. Without limiting the generality of the foregoing, during the Secondary Period, the Company (1) shall use commercially reasonable efforts consistent with past practice to preserve substantially intact the its current business organization of the Companyorganizations, to keep available the services of the its current officers, officers and employees and consultants of the Company and to preserve the current its relationships of the Company with, and the goodwill of, supplierswith significant Governmental Authorities (including applicable Gaming Authorities), customers, development partners, landlords, creditorssuppliers, licensors, licensees, key employees distributors, wholesalers, lessors and other Persons with which the Company has others having significant business relations, (2) shall use commercially reasonable efforts to keep in full force all insurance policies referred to in Section 2.18 and, if any such insurance policy is scheduled to expire during the Secondary Period, shall cause such insurance policy to be renewed or replaced (on terms and dealings with coverage substantially equivalent to the terms and coverage of the expiring insurance policy) on or prior to the date of expiration of such insurance policy, (3) shall as promptly as practicable notify Acquiror in writing of (A) any written notice or (to the knowledge of the Company) other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the Contemplated Transactionsit, and (B) any Legal Proceeding commenced, or, to preserve the knowledge goodwill of the Company, threatened against, relating to or involving or otherwise affecting and maintain satisfactory relationships with those Persons having business relationships with the Company or any of its products or AssetsSubsidiaries; provided, (4) shall cause its officers to report to Acquiror with reasonable frequency concerning the status of the business of however, that no action by the Company or its Subsidiaries with respect to matters specifically addressed by any provision of this Section 6.1 shall be deemed a breach of clause (x) unless such action would constitute a breach of such specific provision; and (5y) shall perform and comply with all of its covenants, agreements and obligations in the other Operative Documents. By way of amplification and not limitation, the Company shall not, during the Secondary Period, directly or indirectly do, or propose to do, not and shall not permit any of the following without the prior written consent of Acquirorits Subsidiaries to: (a) amend or otherwise change the Company Certificate of Incorporation or Company Bylaws if such amendment or change would have, or could reasonably be expected to have, an adverse effect on Acquiror Charter or the Company By-laws (or, in any material respect, such equivalent organizational or on the Company’s ability to comply with any governing documents of its obligations under this Agreement or under any of the other Operative DocumentsSubsidiaries of the Company); (b) except (Afor transactions among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, or as otherwise contemplated in Section 6.1(e) for and Section 6.1(e) of the issuance of Company Disclosure Letter, issue, sell, pledge, dispose, encumber or grant any shares of Company Capital Stock upon the exercise capital stock (or conversion other equity interests) of Company Stock Options outstanding on the date of this Agreement or the Company Warrant, (B) for the issuance or any of shares of Company Capital Stock or equity securities (excluding any convertible debt securities) exercisable or convertible solely into shares of Company Capital Stockits Subsidiaries, or any combination options, warrants, convertible securities or other rights of any kind to acquire any such shares of capital stock (or other equity interests) or rights settled in cash or other property based in whole or in part on the foregoingvalue of such shares of capital stock (or other equity interests); provided, solely for cash to a Person who becomes a party to a Key Stockholder Agreement in favor of Acquiror contemporaneously with such issuance, (C) for however that the issuance of Eligible Debt Securities solely for cash to a Person who becomes a party to a Key Stockholder Agreement in favor of Acquiror contemporaneously with such issuance and (D) for the issuance of Company Stock Options with respect to may issue shares of Company Common Stock (to i) upon the extent the reservation exercise of such shares for issuance under the any outstanding Company Option Plan has been approved by or Company Warrant or the Stockholders vesting and settlement of any outstanding Performance Unit or Company Restricted Share Unit, in each case, issued prior to the date of this Agreement), issue, sell, contract to issue or sell, pledge, dispose of, grant, encumber or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of (i) any shares of Company Capital Stock, hereof and (ii) any pursuant to employment agreements, offer letters and Company Stock Option, (iii) the Company Warrant, (iv) any Company Stock Rights or (v) except in the ordinary course of business and consistent with past practice, any Assets of the CompanyPlans; (c) (i) declare, set asideauthorize, make or pay any dividend or other distribution, payable in cash, stock or other securitiesstock, property or otherwise, with respect to the Company’s or any of its Subsidiaries’ capital stock (or other equity interests), other than dividends paid by any Subsidiary of the Company to the Company or any wholly owned Subsidiary of the Company; (ii) split, combine, reclassify or amend the terms of any shares of Company Capital Stock capital stock or other securities, equity interests of the Company or any of its Subsidiaries; or (iii) redeem, purchase or otherwise acquire, directly or indirectly, acquire any shares of Company Capital Stock the Company’s capital stock or other equity interests or securities (except for repurchases from individuals following their of Company Common Stock of an employee prior to the lapse of any vesting period upon termination of service pursuant such employee’s employment or any other repurchases, in each case, to the terms of their pre-existing stock option or purchase agreements)extent required under any Company Plan; (d) except as and to the extent required pursuant to the Company Benefit Plans in effect as of the date hereof or as otherwise required by Law, (i) acquire (including by merger, consolidation or acquisition of stock or Assets) any corporation, partnership increase the compensation or other Entity benefits payable or business organization to become payable to employees (other than any such increase that is not material, individually or division thereof in the aggregate), directors or executive officers of the Company or any of its Subsidiaries or grant any new, or amend any existing short or long term incentive compensation awards or accelerate the time of vesting, funding or payment of any amounts except for (except A) merit or promotion-based increases in base salary for employees, other than executive officers as part of the normal review process conducted each year, (B) the determination of the level of achievement and payment in cash of annual bonuses in respect of the Company’s fiscal year ending June 30, 2013, and (C) setting of performance criteria for annual bonuses in respect of the Company’s fiscal year ending June 30, 2014, in the case of each of (A),(B) and (C), with such determinations to be made in the ordinary course of business and consistent with past practice, including in respect of the timing of any such determinations and payments, and in respect of each of (B) any material amount of Assets; and (ii) except for the issuance of Eligible Debt SecuritiesC), incur any indebtedness for borrowed money (other than trade payables in the ordinary course of business or in connection accordance with the transactions contemplated by this Agreement or the Specified Litigationparameters set forth in Section 6.1(e) or issue any debt securities; (iii) assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances (except that the Company may make routine travel advances to employees in the ordinary course of business and consistent with past practice not in excess of $10,000 in the aggregate); (iv) authorize any single capital expenditure not included in the Operating Budget that is in excess of $100,000 or capital expenditures not included in the Operating Budget that are, in the aggregate, in excess of $250,000; or (v) enter into any Contract in which the obligation of the Company exceeds $100,000 or which shall not terminate or be subject to termination for convenience without penalty within 30 days following execution; (e) (i) enter into or amend any material employment, consulting or agency Contract, hire any employee or engage any contractor except in order to fill a position vacated after the date of this Agreement, promote any employee except in order to fill a position vacated after the date of this Agreement or hire any employee at the Vice President level or aboveDisclosure Letter, (ii) materially increase the wages, salary, bonus, commissions, fringe benefits or other compensation or remuneration payable or to become payable to any Company Associates, (iii) grant any severance or termination pay to, or enter into any employment or severance arrangement agreement with, any Person who is a employee, director or executive officer of the Company or any of its Subsidiaries, except that the Company may pay severance in the ordinary course of business consistent with past practice as reflected on Section 6.1(d) of the Company Disclosure Letter up to a maximum aggregate monthly amount of $500,000 to employees other than employees who are at the level of vice president or above or have annual base salary of more than $250,000, (iii) enter into any employment agreement other than (A) customary employment agreements and offer letters for internationally located new hires in the ordinary course of business or as customary in the applicable jurisdiction or as required by applicable Law, (B) offer letters and employment agreements with new hires in the United States (x) for individuals who would not be members of the executive committee or receive annual base salary of $250,000 or less, to the extent necessary to (I) replace a departing employee and providing for compensation and benefits consistent with that provided to the departing employee or (II) to fill a newly created position that is required for legitimate business purposes and providing compensation and benefits which would generally be provided to similarly-situated employees of the Company, or (y) for offer letters to new hires or employment agreements providing for employment terminable on less than thirty (30) days’ notice without penalty or except as required by applicable Law, and (C) for extension of employment agreements, other than employment agreements with executive officers, in the ordinary course of business consistent with past practice, (iv) enter into any agreement or arrangement with any current or prospective Company Associate that provides for any of the types of payments or other benefits provided under the Change in Control Agreements, (v) except for bonuses described in Annex 6.2(e), pay any bonus or make any discretionary profit-sharing or similar discretionary payment, or (vi) establish, adopt, enter into, into or amend or terminate any Employee Company Benefit Plan (or arrangement that would be a Company Benefit Plan were it effective as of the date hereof) or other plan, trust, fund, policy or arrangement maintained for the benefit of any current or former directors, officers or employees or any of their beneficiaries, except, in each case, (A) as would not result in a material increase to the Company in the cost of maintaining such plan, trust, fund, policy or arrangement and does not result in a disproportionate increase in the compensation or benefits to which any executive officer is entitled, (B) for health plans in the United States, as would not result in (x) a material increase to the Company in the cost of maintaining those health plans or (y) a material increase in the compensation or benefits to which employees of the Company or its Subsidiaries are entitled, including not disproportionately affecting the compensation or benefits of the Company’s executive officers, or (C) as may be required by applicable Law, or (v) enter into any new, or amend any existing, collective bargaining agreement, except as may be required by applicable Law; (fe) amend grant, confer or award, or accelerate the vesting or settlement of, options, convertible securities, restricted stock, restricted stock units or other rights to acquire any Change in Control Agreement in any manner favorable to the employee capital stock of the Company who is a party to such Change in Control Agreement in respect of the Contemplated Transactions, or amend or waive any of its rights under, Subsidiaries or exercise discretion to accelerate any equity-based award based in whole or in part on the vesting under, any provision capital stock of the Company Option Planor any of its Subsidiaries, whether settled in cash, securities or other property, or take any action not otherwise contemplated by this Agreement to cause to be exercisable any otherwise unexercisable option under any existing stock plan (except as otherwise permitted to be granted in accordance with the parameters set forth on Section 6.1(e) of the Company Disclosure Letter); (f) acquire (including by merger, consolidation, or acquisition of stock or assets), any provision of ownership interests in any Contract evidencing any outstanding Company Stock Option corporation, partnership, limited liability company, other business organization or any restricted stock purchase agreementdivision or material amount of assets thereof, or otherwise modify any of the terms of any outstanding Company Stock Option, the Company Warrant or any other security or any related Contract, or fail to exercise any repurchase right except with respect to acquisitions of majority interests in any shares corporation, partnership, limited liability company, other business organization or any division or material amount of Company Capital Stock (unless Acquiror consents assets with collective purchase prices not exceeding $20,000,000 in writing to the Company failing to exercise any such repurchase right)aggregate; (g) take dispose of, transfer, lease, license, mortgage, pledge or encumber any actionmaterial assets of the Company and its Subsidiaries (other than Company Owned IP or Licensed IP Rights), taken as a whole, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect practice or pursuant to accounting methods, policies or procedures (including procedures with respect to Contracts in effect as of the payment of accounts payable and collection of accounts receivable)date hereof; (h) incur dispose of, transfer, lease, license, covenant not to ▇▇▇, mortgage or pledge any Tax Liability Patents included in Company Owned IP or any other material Company Owned IP or material Licensed IP Rights (other than in the normal course of business, or make any material Tax election or settle or compromise any Tax Liability; (i) pay, discharge grants of non-exclusive licenses or satisfy any Liability, other than the payment, discharge or satisfaction of Liabilities (i) incurred covenants not to ▇▇▇ in the ordinary course of business consistent with past practice and (ii) exclusive licenses that may be terminated on 90 days’ or less notice); (i) (i) include any Company Owned IP in any patent pool or subject any Company Owned IP to a license or covenant not to ▇▇▇, or an obligation to grant a license or covenant not to ▇▇▇, as part of a patent pool or (ii) otherwise include any Company Owned IP in any arrangement with a competitor of the Company or any of its Subsidiaries under which Company Owned IP may be licensed (including by means of a covenant not to ▇▇▇) to Third Parties together with any Intellectual Property owned by such competitor; provided, that, the Company shall be permitted to enter into such arrangements (A) in connection with its interactive business or (B) to the extent such arrangements do not extend the scope of such arrangements in any significant means, or extend the existing term of such arrangements by more than twelve (12) months beyond the maturity date (as of the date hereof) of such arrangements; (j) abandon, allow to lapse or fail to maintain any Company Registered IP, except in the ordinary course of business consistent with past practice; (k) other than in the ordinary course of business consistent with past practice, enter into any exclusive supply or license arrangement that would be material to the Company and its Subsidiaries, taken as a whole, that would have a term extending beyond July 31, 2014; (l) incur any Indebtedness or guarantee any Indebtedness for any Person, except for Indebtedness (i) incurred under the Credit Facility in a principal amount such that, in the aggregate, not more than $115,000,000 is at any one time outstanding under the Credit Facility, or (ii) incurred under letters of credit in the ordinary course of business consistent with past practice; (m) (i) loan (other than customer financing in an amount not to exceed $5,000,000, in the aggregate), advance, invest or make a capital contribution to or in any Person, other than a Subsidiary of the Company, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person (other than support arrangements for Subsidiaries of the Company consistent with past practice), (iii) make or agree to make any capital expenditures except to the extent set forth in Section 6.1 of the Company Disclosure Letter, (iv) cash payments made pursuant to new, amended or extended Brand/IP License Agreements except to the extent set forth in paragraph 24 of Section 6.1 of the Company Disclosure Letter, or (v) enter into any material new line of business outside of its existing business or engage in the conduct of business that would require the receipt of any additional consents, approvals or authorizations of a Governmental Authority (including a Gaming Authority) in connection with the consummation of the Merger and the transactions contemplated hereby; (n) materially modify, amend, cancel or terminate or waive, release or assign any material rights or claims with respect to, any Company Material Contract or enter into any Contract which, if entered into prior to the date hereof, would be a Company Material Contract, in each case, other than (i) in the ordinary course of business consistent with past practice, (ii) required to which would be incurred in connection with the transactions contemplated by this a Brand/IP License Agreement or (iii) incurred Contracts entered into in connection compliance with the Specified Litigation; (j) take or fail to take any action that could reasonably be expected to result in any of the representations or warranties of the Company set forth in this Agreement or any of the other Operative Documents being untrue in any material respect, or in any obligation, agreement or covenant of the Company set forth in this Agreement or any of the other Operative Documents being breached, or in any of the conditions to the Merger specified in Articles IV and V not being satisfied; (k) form any Subsidiary or acquire any equity interest or other interest in any other Entity; (l) purchase, dispose of, license, relinquish or otherwise give up any right with respect to any material Intellectual Property or Intellectual Property Right; (m) enter into or become bound by, or permit any of the Assets owned or used by it to become bound by, any Material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any Material Contract; (n) make any discretionary filing or fail to make any required material filing with any Governmental EntitySection 6.1(f); (o) change in materially modify, amend, or terminate any material Brand/IP License Agreement (other than with respect any to licenses for commercially available software or hardware or granted in the ordinary course of its personnel policies or other business policies, or any of its methods of accounting or accounting practices in any respectconsistent with past practice); (p) enter into make any material change in accounting in effect at June 30, 2012, except (i) as required by GAAP (or amend any leaseinterpretation or enforcement thereof), subleaseRegulation S-X of the Exchange Act or a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization), rental agreement, contract of sale, tenancy, license or other Contract relating to any real property(ii) as required by a change in applicable Law; (q) voluntarily file waive, release, assign, settle or compromise any petition under the United States Bankruptcy Code (X) governmental complaint or make any similar filing Proceeding or commence any proceeding under any state Law respecting insolvency(Y) claims, liabilities or obligations arising out of, related to or in connection with litigation (other than litigation concerning this Agreement) or other Proceedings other than settlements of, or cooperate in any way with or fail to vigorously opposed compromises for, any such petitionlitigation or other Proceedings where the amounts paid or to be paid are (A) funded, filing subject to payment of a deductible, by insurance coverage maintained by the Company and its Subsidiaries without any material increase in the premiums due under such policies and (B) otherwise less than $10,000,000 in the aggregate and, in each case, such settlement or proceeding made, filed or commenced by compromise does not include any third partymaterial non-monetary remedies; (r) commence except as required by applicable Law or the published interpretation or enforcement thereof, make or rescind any material Tax election, change any material Tax method, file any amended Tax Return that is material, or settle or compromise any Legal Proceeding (except that material federal, state, provincial, local or foreign income Tax liability, other than in the Company may settle the Specified Litigation if (i) such settlement is a Lump Sum Settlement or (ii) Acquiror and the Company have agreed as to the Lump Sum Equivalent Amount ordinary course of such settlement)business; (s) indemnify, or reimburse any expense of, any Company Associate or agent, in connection fail to maintain insurance consistent with past practice for the Specified Litigation or otherwise, except to the extent legally or contractually required pursuant to business of the Company Certificate of Incorporationand its Subsidiaries, the Company Bylaws or any individual agreements identified in Annex 6.13(a) taken as in effect on the date of this Agreementa whole; (t) make any expenditure with respect to any item included in any adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the “Major Categories” of the Operating Budget that causes the total expenditures made by the Company with respect to such Major Category to exceed 110% of the amount budgeted for such Major Category in the Operating Budget for any fiscal quarterCompany; or or (u) agree or commit enter into any written agreement to do any of the foregoing.