Common use of Conduct Prior to Closing Clause in Contracts

Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement, between the date of this Agreement and the Closing Date, the Acquired Companies and the Seller will not take any action, or fail to take any action, or allow any other SPR Company to take any action or fail to take any action, as a result of which any of the changes or events described in Section 3.9 of this Agreement would occur. In addition, the Acquired Companies and the Seller will not, and Seller will cause the other SPR Companies not to, without the prior written consent of Buyer, which will not be unreasonably withheld, delayed or conditioned, except to the extent required by this Agreement: (a) take any action to impair, encumber, create a Lien against or otherwise adversely affect the assets or properties of the Acquired Companies; (b) enter into, amend or violate the terms of any Acquired Company Contract or any SPR Company Customer Contract; (c) change pricing charged to customers of the Business; (d) enter into any strategic arrangement or relationship, joint venture, development or joint marketing arrangement or agreement; (e) terminate, or give notice of termination to, any customer or Employee; (f) hire any Employees except in the Ordinary Course of Business; (g) change, increase or amend the rate of remuneration or amount of bonuses or other benefits or any other terms of employment of any Employee (whether payable in cash, equity compensation or otherwise) except in the Ordinary Course of Business; (h) grant any severance or termination pay to any Employee (whether payable in cash, equity compensation or otherwise), or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Employee on the date hereof; (i) adopt or amend or enter into any Employee Plan or Employee Contract; (j) revalue any of the assets or properties of the Acquired Companies; (k) make or change any election in respect of Taxes of the Acquired Companies or Seller, adopt or change any accounting method in respect of Taxes of the Acquired Companies or Seller, enter into any closing agreement, settle any claim or assessment in respect of Taxes of the Acquired Companies or Seller, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes of the Acquired Companies or Seller or file any Tax Return of the Acquired Companies unless such Tax Return has been provided to Buyer for review within a reasonable period prior to the due date for filing and Parent has consented to such filing; (l) commence or settle any action, suit, claim, arbitration, investigation or other Proceeding before any court or administrative agency or obtain any releases of any such action, suit, claim, arbitration, investigation or other Proceeding that is threatened; (m) take any action, or fail to take any action, which would result in any of the representations and warranties set forth in Article III not being true and correct on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date; (n) issue, grant, deliver or sell or authorize, pledge or otherwise encumber, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any membership interests of the Acquired Companies or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating either entity to issue any such membership interests or other convertible securities; (o) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its membership interests, or split, combine or reclassify any of its membership interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for membership interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any membership interests (or options, warrants or other rights exercisable therefor); or (p) take, or agree in writing or otherwise to take, any of the actions described in Sections 5.5(a) through (o) above, or any other action that would prevent the Acquired Companies from performing or cause the Seller or the Acquired Companies not to perform its covenants hereunder.

Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement, between Between the date of this Agreement and the earlier of the Closing DateDate or the termination of this Agreement, the Acquired Companies and the unless otherwise previously approved by Parent or Buyer in writing, Seller will not take any action, or fail to take any action, or allow any other SPR Company to take any action or fail to take any action, as a result of which any of the changes or events described in Section 3.9 3.26 of this Agreement would occur. In addition, between the Acquired Companies date of this Agreement and the earlier of the Closing Date or the termination of this Agreement, unless otherwise previously approved by Parent or Buyer in writing (the decision as to whether to provide such advance approval not to be unreasonably delayed), Seller will not, and Seller will cause the other SPR Companies not to, without the prior written consent of Parent or Buyer, which will not be unreasonably withheld, delayed or conditioned, except to the extent required by this Agreement: (a) take any action to impair, encumber, create a Lien against against, materially impair or otherwise adversely affect the assets or properties of the Acquired CompaniesAssets; (b) except to comply with existing contractual obligations or commitments contained in Contracts listed on Schedule 1.1(bbbb) (Transferred Contracts), or with respect to non-exclusive license agreements entered into in the ordinary course of business consistent with past practice, buy, or enter intointo any inbound license agreement with respect to, amend Third Party Technology or violate the terms Intellectual Property Rights of any third party to be incorporated in or used in connection with the Products or sell, lease or otherwise transfer or dispose of, or enter into any outbound license agreement with respect to, any of the Acquired Company Contract or Assets with any SPR Company Customer Contractthird party; (c) change pricing charged to customers propose or enter into a Contract with any person, other than Buyer, providing for the possible acquisition, transfer or disposition (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) of any of the BusinessAcquired Assets, other than sales of Products in the ordinary course of business consistent with past practices; (d) enter into any Contract relating to (i) the sale or distribution of any Product, (ii) the provision of any services or (iii) any of the Acquired Assets, other than agreements for the sale of Products in the ordinary course of business consistent with past practices; (e) enter into any Contract with any Distributor that is not a Distributor of Products on the date of this Agreement or grant any right of return to any Distributor; (f) change pricing or royalties charged to customers or licensees of the Acquired Assets; (g) enter into any strategic arrangement or relationship, joint venture, development or joint marketing arrangement or agreement; (eh) terminatefire, or give notice of termination to, any customer or Designated Employee; (fi) hire any Employees except in the Ordinary Course of Businessemployees; (gj) change, increase or amend the rate of remuneration or amount of bonuses or other benefits or any other terms of employment of any Designated Employee (whether payable in cash, equity compensation or otherwise) except in the Ordinary Course of Businessas specifically required by Section 5.9; (hk) grant any severance or termination pay to any Designated Employee (whether payable in cash, equity compensation or otherwise)) except as specifically required or (in the case of the termination letters) specifically contemplated by Section 5.9, or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Designated Employee on the date hereof; (il) adopt or amend any Employee Plan, or enter into any Employee Plan or Employee ContractContract with an Employee, other than with respect to the termination letters with Key Employees contemplated by Section 5.9 hereof and the settlement agreements with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ contemplated by Section 6.2(l) hereof; (jm) amend or modify, or violate the terms of, any of the Transferred Contracts; (n) amend or modify, or violate the terms of, any of the Lease Agreements or enter into any lease, sublease (other than the Real Property Subleases), license or other occupancy agreement with respect to any of the Leased Real Property; provided, however, that Seller shall not be prohibited hereunder from amending any of the Lease Agreements so as to sublease, assign or terminate such Lease Agreements at any time after June 30, 2003; (o) revalue any of the assets or properties of the Acquired CompaniesAssets; (kp) make or change any election in respect of Taxes of the Acquired Companies or SellerTaxes, adopt or change any accounting method in respect of Taxes of the Acquired Companies or SellerTaxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes of the Acquired Companies Taxes, or Seller, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes of Taxes, in each case relating to the Business, the Products or the Acquired Companies or Seller or file any Tax Return of the Acquired Companies unless such Tax Return has been provided to Buyer for review within a reasonable period prior to the due date for filing and Parent has consented to such filingAssets; (lq) commence or settle any action, suit, claim, arbitration, investigation Actions or other Proceeding before any court or administrative agency Proceedings or obtain any releases of any such action, suit, claim, arbitration, investigation threatened Actions or Proceedings involving or relating to the Business (other Proceeding that is threatenedthan as specifically required by Section 6.2(l); (mr) take enter into any action, or fail Contract providing for a Payable as to take any action, which would result in any Seller receives a payment term of the representations and warranties set forth in Article III not being true and correct on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date; more than sixty (n60) issue, grant, deliver or sell or authorize, pledge or otherwise encumber, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any membership interests of the Acquired Companies or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating either entity to issue any such membership interests or other convertible securities; (o) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its membership interests, or split, combine or reclassify any of its membership interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for membership interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any membership interests (or options, warrants or other rights exercisable therefor)days; or (ps) take, or agree in writing or otherwise to take, any of the actions described in Sections 5.5(a5.3(a) through (or) above, or any other action that would prevent the Acquired Companies Seller from performing or cause the Seller or the Acquired Companies not to perform its covenants hereunder.

Conduct Prior to Closing. Except as Without in any way limiting any other rights or obligations of Vendor hereunder, during the Interim Period, Vendor shall subject to Section 7.7, unless otherwise expressly permitted contemplated by this AgreementSection 7.7, between the date designated Representatives of this Agreement Purchaser otherwise consent in writing: (1) cause the Target Entities to conduct the Business and the Closing Date, operations and affairs of the Acquired Companies Target Entities in the Ordinary Course and the Seller will not take any action, or fail to take any action, or allow any other SPR Company to take any action or fail to take any action, as a result of which any of the changes or events described in Section 3.9 of this Agreement would occur. In addition, the Acquired Companies and the Seller will Target Entities shall not, and Seller will cause the other SPR Companies not to, without the prior written consent of BuyerPurchaser, which will enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, would constitute a breach of any representation, warranty, covenant or other obligation of Vendor in this Agreement and, without limiting the generality of the foregoing, Vendor shall cause each Target Entity not be unreasonably withheld, delayed or conditioned, except to the extent required (unless expressly authorized by this Agreement:, including Section 7.7): (a) take any action amalgamate, merge or consolidate with or acquire or agree to impair, encumber, create a Lien against acquire all or otherwise adversely affect the assets or properties substantially all of the Acquired Companiesshares or assets of any Person; (b) enter into, amend acquire or violate the terms of lease or agree to acquire or lease any Acquired Company Contract business operations or any SPR Company Customer ContractEquity Interests in any other Person, acquire or agree to acquire any legal or beneficial interest in any real property, or occupy, lease, manage or control or agree to occupy, lease or manage or control any facility or property that is not an Asset; (c) change pricing charged enter into any compromise or settlement of any material litigation or proceeding relating to customers the Business or any of the BusinessAssets; (d) enter into make any strategic arrangement material modification to its usual sales, human resource, accounting, Software, or relationshipmanagement practices, joint venture, development processes or joint marketing arrangement or agreementsystems; (e) terminateenter into any Contract of the kind described in Section 6.2(14) other than the Covered Credit Agreement, or give notice the Limited TM Pipeline LP Indemnity (Covered Credit Agreement) and the other loan, security, intercreditor agreements, instruments and documents that may be required to be entered into pursuant to the foregoing and the replacement of termination tothe Credit Agreement by the new credit agreement made as of May 1, any customer or Employee2018 and referred to in the definition of Credit Agreement herein; (f) hire knowingly take any Employees action, or omit to take any action, that would result in any Target Entity being in violation of the Privacy Law; (g) make any change to its Constating Documents; (h) make any unilateral changes to the Covered Credit Agreement; (i) make any commitment or propose, initiate or authorize any single capital expenditure with respect to the Business if the Target Entity’s share is in excess of Ten Million Dollars ($10,000,000) in the aggregate, except in case of: (i) an emergency or catastrophe or other event endangering life or property or concerning the Environment; (ii) as may be necessary for the maintenance of existing facilities, machinery and equipment in good operating condition in the Ordinary Course of Business; (iii) settlement of a Claim disclosed in the Data Room for which Purchaser has provided its prior written consent; or (iv) in respect of amounts which the Target Entity is committed to expend, the details of which amounts have been disclosed to Purchaser in the Data Room; (gj) changeborrow money or incur or increase any indebtedness for money borrowed or make loans or advances, increase except for borrowing for working capital or amend the rate of remuneration or amount of bonuses or other benefits or any other terms of employment of any Employee (whether payable capital expenses in cash, equity compensation or otherwise) except accordance herewith and in the Ordinary Course of Business; (h) grant any severance or termination pay to any Employee (whether payable in cash, equity compensation or otherwise), or adopt guarantee or otherwise assume liability in respect of any new severance planindebtedness for borrowed money of any other Person, amend or modify or alter in any manner any severance planeither case, agreement or arrangement relating to any Employee on except as contemplated herein and by the date hereof; (i) adopt or amend or enter into any Employee Plan or Employee Contract; (j) revalue any of the assets or properties of the Acquired CompaniesCovered Credit Agreement; (k) make surrender or abandon any of the Assets, except in the Ordinary Course or where the rights of TM Pipeline LP thereto have expired or terminated; (l) enter into, assign, waive any rights under, amend or terminate, in any material respect, any Material Contract or mutual benefits agreement; (m) withdraw from or terminate any engagement or consultation process with an Indigenous Group relating to any outstanding provincial Permit or Approval; (n) sell, lease, encumber or otherwise dispose of any of the Assets or any part or portion thereof outside the Ordinary Course and other than Permitted Encumbrances; or (o) change any election method of Tax accounting, make, change or rescind any material Tax election, file any materially amended Tax Return, notice of objection or appeal in respect of Taxes of the Acquired Companies Tax matters or Seller, adopt or change otherwise reply to any accounting method inquiry from any Governmental Authority in respect of Taxes of the Acquired Companies or Seller, enter into any closing agreementrelation to Tax matters, settle or compromise any claim or assessment in respect of Taxes of the Acquired Companies or Sellermaterial Tax liability, consent agree to any an extension or waiver of the limitation period applicable statute of limitations with respect to the assessment or determination of Taxes, enter into any agreement with respect to any Tax or surrender any right to claim a material Tax refund, except with respect to the items disclosed in the Data Room. (2) cause each Target Entity not to do any act or assessment thing that would result in a breach of Section 7.1; (3) cause each Target Entity to use reasonable commercial efforts to continue to maintain in full force and effect all the insurance policies or renewals thereof currently in effect; (4) cause each Target Entity to take out, at the expense of Purchaser, such additional insurance as may be reasonably requested by Purchaser; (5) cause each Target Entity to report all claims or known circumstances or events which may give rise to a material claim to its insurers under its insurance policies in a due and timely manner to the Closing Date and provide copies of those reports to Purchaser; (6) cause each Target Entity: (a) to use reasonable commercial efforts to preserve intact, the Business, the Assets, and the operations and affairs of the Target Entity; and (b) subject to Section 7.7, to carry on the Business and the affairs of the Target Entity as currently conducted; (7) cause the Target Entities to take all prudent steps to ensure that its Representatives comply with all Privacy Law; (8) cause each Target Entity to pay and discharge the liabilities and Taxes of the Target Entity in the Ordinary Course in accordance and consistent with the previous practice of the Target Entity, except those contested in good faith by the Target Entity; (9) use reasonable commercial efforts to take all necessary corporate action, steps and proceedings to approve or authorize, validly and effectively, the execution and delivery of this Agreement and the other agreements and documents contemplated hereby and to complete the transfer of the Purchased Shares and Purchased Units to Purchaser and to cause all necessary meetings of directors and shareholders of Vendor to be held for that purpose; (10) cause the Target Entities to use reasonable commercial efforts to take all necessary corporate action, steps and proceedings to authorize, consent and otherwise complete the transfer of the Purchased Shares and Purchased Units to Purchaser and to cause all necessary meetings of directors and shareholders and unitholders of the Target Entities to be held for that purpose; and (11) shall not request from any Governmental Authority any audit or other review in relation to Taxes, of any Target Entity; file any amended Tax Return, Notice of Objection or Appeal in respect of Taxes of the Acquired Companies or Seller or file any Tax Return of the Acquired Companies unless such Tax Return has been provided to Buyer for review within a reasonable period prior to the due date for filing and Parent has consented to such filing; (l) commence or settle any action, suit, claim, arbitration, investigation or other Proceeding before any court or administrative agency or obtain any releases of any such action, suit, claim, arbitration, investigation or other Proceeding that is threatened; (m) take any action, or fail to take any action, which would result in any of the representations and warranties set forth in Article III not being true and correct on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date; (n) issue, grant, deliver or sell or authorize, pledge matters; or otherwise encumberreply to any inquiry in relation to Tax matters, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, from any membership interests of the Acquired Companies or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating either entity to issue any such membership interests or other convertible securities; (o) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its membership interests, or split, combine or reclassify any of its membership interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for membership interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any membership interests (or options, warrants or other rights exercisable therefor); or (p) take, or agree in writing or otherwise to take, any of the actions described in Sections 5.5(a) through (o) above, or any other action that would prevent the Acquired Companies from performing or cause the Seller or the Acquired Companies not to perform its covenants hereunderGovernmental Authority.

Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement, between SECTION 5.1 Conduct Prior to the Closing. Between the date of this Agreement hereof and the Closing DateClosing: (a) Except within the regular course of business or in connection with its financing activities previously disclosed to Contessa, including, without limitation the Acquired Companies Ancillary Agreements and the Seller Grace Private Placement, Fullcomm will not take enter into any actionmaterial agreement, contract or fail to take any actioncommitment, whether written or allow any other SPR Company to take any action or fail to take any action, as a result of which any of the changes or events described in Section 3.9 of this Agreement would occur. In addition, the Acquired Companies and the Seller will not, and Seller will cause the other SPR Companies not tooral, without the prior written consent of Buyer, which will not be unreasonably withheld, delayed or conditioned, except to the extent required by this Agreement: (a) take any action to impair, encumber, create a Lien against or otherwise adversely affect the assets or properties of the Acquired CompaniesContessa; (b) enter intoFullcomm will not pay, incur or declare any dividends or distributions with respect to its shareholders or amend its Certificate of Incorporation or violate By-Laws, without the terms prior written consent of any Acquired Company Contract or any SPR Company Customer ContractContessa ; (c) change pricing charged Except for the shares of Common Stock of Fullcomm to customers be issued in connection with the Ancillary Agreements and the Grace Private Placement Agreement, Fullcomm will not authorize, issue, sell, purchase, or redeem any shares of capital stock or any options or other rights to acquire ownership interests without the Businessprior written consent of Contessa; (d) enter into Except within the regular course of business and in its financing activities previously disclosed to Contessa, Fullcomm will not incur any strategic arrangement indebtedness for money borrowed (other than the South Edge Loan) or relationshipissue any debt securities, joint ventureor incur or suffer to be incurred any liability or obligation of any nature whatsoever, development or joint marketing arrangement cause or agreementpermit any lien, encumbrance or security interest to be created or arise on or in any of its properties or assets, without the prior written consent of Contessa; (e) terminateFullcomm will not make any investment of capital nature either by purchased stock or securities, contribution to capital, property transfer or otherwise, or give notice by the purchase of termination to, any customer property or Employeeassets of any other Person; (f) hire Fullcomm will not do any Employees except other act which would cause representation or warranty of Contessa in this Agreement to be or become untrue in any material respect or that is not in the Ordinary Course ordinary course of Businessbusiness consistent with past practice; (g) changeFullcomm shall not directly or indirectly (a) solicit any inquiry or proposals or enter into or continue any discussions, increase negotiation or amend agreements relating to (i) the rate sale or exchange of remuneration Fullcomm's capital stock or amount (ii) the merger of bonuses Fullcomm with any Person other than Acquisition or other benefits (b) provide any assistance or any information to other terms of employment of otherwise cooperate with any Employee (whether payable Person in cashconnection with any such inquiry, equity compensation proposal or otherwise) except in the Ordinary Course of Businesstransaction; (h) grant Fullcomm will comply with all requirements which federal or state law may impose on it with respect to this Agreement and the transactions contemplated hereby, and will promptly cooperate with and furnish written information to Contessa in connection with any severance or termination pay to any Employee (whether payable such requirements imposed upon the parties hereto in cash, equity compensation or otherwise), or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Employee on the date hereof;connection therewith; and (i) adopt or amend or enter into any Employee Plan or Employee Contract; (j) revalue any of Fullcomm shall grant to Contessa and its counsel, accountants and other representatives, full access during normal business hours during the assets or properties of the Acquired Companies; (k) make or change any election in respect of Taxes of the Acquired Companies or Seller, adopt or change any accounting method in respect of Taxes of the Acquired Companies or Seller, enter into any closing agreement, settle any claim or assessment in respect of Taxes of the Acquired Companies or Seller, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes of the Acquired Companies or Seller or file any Tax Return of the Acquired Companies unless such Tax Return has been provided to Buyer for review within a reasonable period prior to the due date for filing Closing to all its respective properties, books, contracts, commitments and Parent has consented records and, during such period, furnish promptly to Contessa and such filing; (l) commence or settle any actionrepresentatives all information relating to Fullcomm as Contessa may reasonably request, suit, claim, arbitration, investigation or other Proceeding before any court or administrative agency or obtain any releases and shall extend to Contessa the opportunity to meet with Fullcomm's accountants and attorneys to discuss the financial condition of any such action, suit, claim, arbitration, investigation or other Proceeding that is threatened; (m) take any action, or fail to take any action, which would result in any of the representations and warranties set forth in Article III not being true and correct on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date; (n) issue, grant, deliver or sell or authorize, pledge or otherwise encumber, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any membership interests of the Acquired Companies or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating either entity to issue any such membership interests or other convertible securities; (o) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its membership interests, or split, combine or reclassify any of its membership interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for membership interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any membership interests (or options, warrants or other rights exercisable therefor); or (p) take, or agree in writing or otherwise to take, any of the actions described in Sections 5.5(a) through (o) above, or any other action that would prevent the Acquired Companies from performing or cause the Seller or the Acquired Companies not to perform its covenants hereunderFullcomm.

Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement, without the prior written consent of Buyer, between the date of this Agreement and the Closing Date, the Acquired Companies and the Seller will not take any action, or fail to take any action, or allow any other SPR Company to take any action or fail to take any action, as a result of which any of the changes or events described in Section 3.9 of this Agreement would occur. In addition, the Acquired Companies and the Seller will not, and Seller will cause the other SPR Companies not to, without the prior written consent of Buyer, which will not be unreasonably withheld, delayed or conditioned, except to the extent required by this Agreement: (a) take enter into any action (i) inbound license agreement with respect to impair, encumber, create a Lien against the Intellectual Property Rights of any third party to be incorporated in or otherwise adversely affect used in connection with the assets Transferred Technology or properties (ii) outbound license agreement with respect to any of the Acquired CompaniesPurchased Assets, with any third party (other than customers in the ordinary course of business and consistent with past practice); (b) enter into, amend settle any pending Actions or violate Proceedings or obtain any releases of threatened Actions or Proceedings involving or related to the terms of any Acquired Company Contract or any SPR Company Customer ContractBusiness; (c) change pricing charged to customers terminate the employment of the Businessany Identified Employee; (d) enter into with respect to any strategic arrangement Employee, increase or relationshipmodify in any material respect the rate of remuneration or any other benefit or consideration (including benefits payable under Employee Plans and whether payable in cash, joint venturestock, development equity securities, property or joint marketing arrangement otherwise), or agreementany other terms of employment; (e) terminatewith respect to any Employee, or give notice of termination to, any customer or Employee; (f) hire any Employees except in the Ordinary Course of Business; (g) change, increase or amend the rate of remuneration or amount of bonuses or other benefits or any other terms of employment of any Employee (whether payable in cash, equity compensation or otherwise) except in the Ordinary Course of Business; (h) grant any severance or termination pay to any Employee (whether payable in cash, equity compensation cash or otherwise), except pursuant to written agreements outstanding as of the date hereof and as disclosed and provided to Buyer, or policies existing, on the date hereof and as previously disclosed in writing or made available to Buyer, or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Employee existing on the date hereof, or grant any bonus, payment or equity-based compensation to any Employee (except as expressly permitted by this Agreement), whether payable in cash, stock or other securities; (i) adopt or amend or enter into any Employee Plan or Employee Contract; (j) revalue any of the assets or properties of the Acquired Companies; (k) make or change any election in respect of Taxes of the Acquired Companies or Seller, adopt or change any accounting method in respect of Taxes of the Acquired Companies or Seller, enter into any closing agreement, settle any claim or assessment in respect of Taxes of the Acquired Companies or Seller, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes of the Acquired Companies or Seller or file any Tax Return of the Acquired Companies unless such Tax Return has been provided to Buyer for review within a reasonable period prior to the due date for filing and Parent has consented to such filing; (l) commence or settle any action, suit, claim, arbitration, investigation or other Proceeding before any court or administrative agency or obtain any releases of any such action, suit, claim, arbitration, investigation or other Proceeding that is threatened; (mf) take any action, or fail to take any action, which that would result in any of the representations and warranties set forth in Article III ARTICLE V not being true and correct on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date; (ng) issue, grant, deliver incur or sell guarantee any indebtedness for borrowed money in excess of $10,000 in the aggregate involving or authorize, pledge or otherwise encumber, or propose related to the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any membership interests of the Acquired Companies or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating either entity to issue any such membership interests or other convertible securitiesBusiness; (oh) declarefile a petition in bankruptcy, set aside make an assignment for the benefit of creditors or pay file a petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws; (i) enter into any dividends on agency, partnership, joint venture or trust; (j) terminate, renew or make any other distributions (whether in cash, stock or property) in respect of material amendments to any of its membership intereststhe Transferred Agreements; (k) sell, assign, license, lease, transfer, convey or splitpledge the Purchased Assets or commit itself to sell, combine assign, license, lease, transfer, convey or reclassify pledge the Purchased Assets or subject any of its membership interests or issue or authorize the issuance Purchased Assets to a security interest; (l) revalue any of any other securities in respect ofthe Purchased Assets including, in lieu without limitation, writing down the value of or in substitution for membership interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any membership interests (or options, warrants or other rights exercisable therefor)Inventory; or (pm) take, or agree in writing or otherwise to take, any of the actions described in Sections 5.5(a7.3(a) through (o7.3(l) above, or any other action that would prevent the Acquired Companies Seller from performing or cause the Seller or the Acquired Companies not to perform its covenants hereunder.

Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement5.1 Conduct of Business Prior to Closing. Without the prior written ------------------------------------ consent of the Purchaser, between from and after the date of this Agreement and until the Closing DateClosing, the Acquired Companies Company and Parent shall, and shall cause each of their respective Subsidiaries to, conduct its business in the Seller will not take ordinary course. Notwithstanding the foregoing and except as contemplated hereby, neither the Company nor any actionGuarantor shall, or fail to take any action, or allow any other SPR Company to take any action or fail to take any action, as a result of which nor shall they permit any of the changes or events described in Section 3.9 of this Agreement would occur. In addition, the Acquired Companies and the Seller will not, and Seller will cause the other SPR Companies not their respective Subsidiaries to, without the prior written consent of Buyer, which will not be unreasonably withheld, delayed or conditioned, except to the extent required by this Agreement: (a) take waive or release any action material right or benefit or any indebtedness owed to impair, encumber, create a Lien against or otherwise adversely affect the assets or properties of the Acquired Companiesit; (b) enter into, amend or violate the otherwise modify any Material Contract on terms of any Acquired Company Contract or any SPR Company Customer Contract; (c) change pricing charged to customers of the Business; (d) enter into any strategic arrangement or relationship, joint venture, development or joint marketing arrangement or agreement; (e) terminate, or give notice of termination to, any customer or Employee; (f) hire any Employees except in the Ordinary Course of Business; (g) change, increase or amend the rate of remuneration or amount of bonuses or other benefits or any other terms of employment of any Employee (whether payable in cash, equity compensation or otherwise) except in the Ordinary Course of Business; (h) grant any severance or termination pay to any Employee (whether payable in cash, equity compensation or otherwise), or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Employee less favorable than those that exist on the date hereof; (c) change or amend its charter or bylaws; (d) effect any act or omission which could have a Material Adverse Effect; (e) create any Contingent Obligation, by way of guarantees or otherwise; (f) declare or pay any dividend or other distribution or payment in cash, stock or property in respect of shares of its Capital Stock, or adopt or consider any plan or arrangement with respect thereto or make any direct or indirect redemption, retirement, purchase or other acquisition of any of its Capital Stock or split, combine or reclassify its outstanding shares of Capital Stock; (g) issue any shares of Capital Stock or any Option Rights of the Company or Overhill Ventures (other than (i) shares of Common Stock issued upon the exercise of Option Rights set forth on Schedule 3.7(a)) and (ii) Parent --------------- Common Stock issued in settlement of litigation identified on Schedule 3.20 ------------- consistent with past practices); (h) (i) increase the compensation of any officer or key employee, except as otherwise permitted under Section 3.13(u); (ii) amend any existing --------------- Benefit Plan or adopt any new Benefit Plan; or amend or (iii) enter into any Employee Plan new employment or Employee Contractconsulting agreement; (i) (i) incur any Indebtedness; (ii) transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any asset of the Company with a value exceeding $10,000 individually and $50,000 in the aggregate; (iii) purchase or acquire any business or any securities or assets of any business; (iv) enter into any partnership, joint venture or strategic alliance; (v) settle any material litigation in an amount in excess of $50,000; or (vi) accelerate payment on any Indebtedness; (j) revalue make any Capital Expenditures in excess of $100,000 in the assets or properties of the Acquired Companiesaggregate; (k) make or change any election in respect of Taxes fail to preserve intact the business organization of the Acquired Companies Company and each of its Subsidiaries, fail to keep available the services of their operating personnel, or Sellerfail to preserve the goodwill of those having business relationships with the Company or its Subsidiaries, adopt or change any accounting method in respect of Taxes of the Acquired Companies or Sellerincluding, enter into any closing agreementwithout limitation, settle any claim or assessment in respect of Taxes of the Acquired Companies or Seller, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes of the Acquired Companies or Seller or file any Tax Return of the Acquired Companies unless such Tax Return has been provided to Buyer for review within a reasonable period prior to the due date for filing and Parent has consented to such filingcustomers; (l) commence or settle any action, suit, claim, arbitration, investigation or other Proceeding before any court or administrative agency or obtain any releases of any such action, suit, claim, arbitration, investigation or other Proceeding that is threatenedfail to maintain its books and records in accordance with past practices and in conformity with GAAP; (m) take any actionaction enumerated in Section 3.13 or which would be ------------ prohibited by any other Investment Document determined as if the transactions contemplated by this Agreement had been consummated; or (n) take, or fail to take take, any action, which would result action so that any of the representations or warranties by the Company or any Guarantor contained in this Agreement ceases to be true and correct in all respects. The Company shall notify the Purchaser in writing of the occurrence of any Material Adverse Effect or breach of the representations and warranties set forth in Article III not being true and correct on and as of the Closing Date with Company under this Agreement within one (1) day following the same force and effect as if such representations and warranties had been made on and as of the Closing Date; (n) issue, grant, deliver or sell or authorize, pledge or otherwise encumber, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any membership interests of the Acquired Companies or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating either entity to issue any such membership interests or other convertible securities; (o) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its membership interests, or split, combine or reclassify any of its membership interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for membership interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any membership interests (or options, warrants or other rights exercisable therefor); or (p) take, or agree in writing or otherwise to take, any of the actions described in Sections 5.5(a) through (o) above, or any other action that would prevent the Acquired Companies from performing or cause the Seller or the Acquired Companies not to perform its covenants hereunderoccurrence thereof.

Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement, between (a) During the period beginning on the date of this Agreement and ending on the earlier of (x) the Closing Date, Date and (y) the Acquired Companies and the Seller will not take any action, or fail to take any action, or allow any other SPR Company to take any action or fail to take any action, as a result date of which any of the changes or events described in Section 3.9 termination of this Agreement would occurin accordance with Article 8 (the “Pre-Closing Period”), each of the Sellers shall, and shall cause its Affiliates to, (a) conduct its business with respect to each Product and the Acquired Assets in the ordinary course and in accordance with applicable Law and (b) use commercially reasonable efforts to preserve the Product Business and otherwise maintain the tangible Acquired Assets in good condition. In additionExcept as set forth on Schedule 6.1(a) of the Seller Disclosure Letter, the Acquired Companies and the Seller will Sellers shall not, and Seller will shall cause the other SPR Companies their respective Affiliates not to, without the prior written consent of Buyer, which will Purchaser in writing (not to be unreasonably withheld, delayed conditioned or conditioneddelayed), except to do any of the extent required by this Agreementfollowing: (ai) take any action to impairmortgage, encumberlease, create a Lien against pledge or otherwise adversely affect Encumber any Acquired Assets or sell, transfer, license, lease, permit to lapse or otherwise dispose of any Acquired Assets except for sales of inventory in the assets or properties ordinary course of the Acquired Companiesbusiness; (bA) enter intoterminate or fail to renew any Acquired Contract, amend or make any material amendment to or waive any material right or remedy under any such Contract, (B) knowingly take, or fail to take, any action that would constitute a breach, violate the terms terms, conditions or provisions of, or result in a default under, or give to others any rights of termination, amendment, acceleration or cancellation of any Acquired Company Contract or (C) enter into any SPR Company Customer Contract that would be an Acquired Contract; (ciii) change pricing charged (A) abandon, lapse or allow to customers lapse any Acquired Intellectual Property Rights, (B) fail to make any filings, prosecute in good faith or maintain any Acquired Intellectual Property Rights or (C) grant any license, sublicense or other right with respect to any Acquired Intellectual Property Rights or In-Licensed Intellectual Property, other than in the ordinary course of the Businessbusiness; (div) enter into vary any strategic arrangement inventory practices with respect to any Product (including samples) in a manner inconsistent with the ordinary course of business or relationship, joint venture, development or joint marketing arrangement or agreementfail to produce and maintain inventory levels and amounts consistent with the ordinary course of business; (ev) terminatecommence, compromise or give notice of termination to, settle any customer Action to the extent related to the Product Business or Employeethe Acquired Assets; (fvi) hire fail to pay any Employees applicable Taxes imposed on the Acquired Assets or with respect to the Product Business as such Taxes become due or payable; (vii) (A) materially revise or modify any promotional material (including any Labeling) included in the Acquired Regulatory Documentation or (B) add, remove or otherwise alter any references to the Products in any website controlled by any of the Sellers or their respective Affiliates or any of the content of such references in any such website, in each case ((A) and (B)), except as required by a Governmental Entity or as otherwise required by applicable Law; (viii) terminate or materially modify any ongoing clinical trial (including any post approval study) with respect to any Product, except in the Ordinary Course event of Business; (g) change, increase a safety concern or amend the rate of remuneration as otherwise necessary to comply with any Governmental Entity or amount of bonuses or other benefits or any other terms of employment of any Employee (whether payable in cash, equity compensation or otherwise) except in the Ordinary Course of Business; (h) grant any severance or termination pay to any Employee (whether payable in cash, equity compensation or otherwise), or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Employee on the date hereof; (i) adopt or amend or enter into any Employee Plan or Employee Contract; (j) revalue any of the assets or properties of the Acquired Companies; (k) make or change any election in respect of Taxes of the Acquired Companies or Seller, adopt or change any accounting method in respect of Taxes of the Acquired Companies or Seller, enter into any closing agreement, settle any claim or assessment in respect of Taxes of the Acquired Companies or Seller, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes of the Acquired Companies or Seller or file any Tax Return of the Acquired Companies unless such Tax Return has been provided to Buyer for review within a reasonable period prior to the due date for filing and Parent has consented to such filing; (l) commence or settle any action, suit, claim, arbitration, investigation or other Proceeding before any court or administrative agency or obtain any releases of any such action, suit, claim, arbitration, investigation or other Proceeding that is threatened; (m) take any action, or fail to take any action, which would result in any of the representations and warranties set forth in Article III not being true and correct on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date; (n) issue, grant, deliver or sell or authorize, pledge or otherwise encumber, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any membership interests of the Acquired Companies or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating either entity to issue any such membership interests or other convertible securities; (o) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its membership interests, or split, combine or reclassify any of its membership interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for membership interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any membership interests (or options, warrants or other rights exercisable therefor)Law; or (pix) take, agree or agree in writing or otherwise commit to take, do any of the actions described in Sections 5.5(a) through (o) above, or any other action that would prevent the Acquired Companies from performing or cause the Seller or the Acquired Companies not to perform its covenants hereunderforegoing.

Conduct Prior to Closing. Except as otherwise expressly permitted by this Agreement, between (a) During the period beginning on the date of this Agreement and ending on the earlier of (x) the Closing Date, Date and (y) the Acquired Companies and the Seller will not take any action, or fail to take any action, or allow any other SPR Company to take any action or fail to take any action, as a result date of which any of the changes or events described in Section 3.9 termination of this Agreement would occurin accordance with Article 8 (the “Pre-Closing Period”), each of the Sellers shall, and shall cause its Affiliates to, (a) conduct its business with respect to each Product and the Acquired Assets in the ordinary course and in accordance with applicable Law and (b) use commercially reasonable efforts to preserve the Product Business and otherwise maintain the tangible Acquired Assets in good condition. In additionExcept as set forth on Schedule 6.1(a) of the Seller Disclosure Letter, the Acquired Companies and the Seller will Sellers shall not, and Seller will shall cause the other SPR Companies their respective Affiliates not to, without the prior written consent of Buyer, which will Purchaser in writing (not to be unreasonably withheld, delayed conditioned or conditioneddelayed), except to do any of the extent required by this Agreementfollowing: (ai) take any action to impairmortgage, encumberlease, create a Lien against pledge or otherwise adversely affect Encumber any Acquired Assets or sell, transfer, license, lease, permit to lapse or otherwise dispose of any Acquired Assets except for sales of inventory in the assets or properties ordinary course of the Acquired Companiesbusiness; (bii) enter into(A) terminate or fail to renew any Acquired Contract, amend or make any material amendment to or waive any material right or remedy under any such Contract, (B) knowingly take, or fail to take, any action that would constitute a breach, violate the terms terms, conditions or provisions of, or result in a default under, or give to others any rights of termination, amendment, acceleration or cancellation of any Acquired Company Contract or (C) enter into any SPR Company Customer Contract that would be an Acquired Contract; (ciii) change pricing charged (A) abandon, lapse or allow to customers lapse any Acquired Intellectual Property Rights, (B) fail to make any filings, prosecute in good faith or maintain any Acquired Intellectual Property Rights or (C) grant any license, sublicense or other right with respect to any Acquired Intellectual Property Rights or In-Licensed Intellectual Property, other than in the ordinary course of the Businessbusiness; (div) enter into vary any strategic arrangement inventory practices with respect to any Product (including samples) in a manner inconsistent with the ordinary course of business or relationship, joint venture, development or joint marketing arrangement or agreementfail to produce and maintain inventory levels and amounts consistent with the ordinary course of business; (ev) terminatecommence, compromise or give notice of termination to, settle any customer Action to the extent related to the Product Business or Employeethe Acquired Assets; (fvi) hire fail to pay any Employees applicable Taxes imposed on the Acquired Assets or with respect to the Product Business as such Taxes become due or payable; (vii) (A) materially revise or modify any promotional material (including any Labeling) included in the Acquired Regulatory Documentation or (B) add, remove or otherwise alter any references to the Products in any website controlled by any of the Sellers or their respective Affiliates or any of the content of such references in any such website, in each case ((A) and (B)), except as required by a Governmental Entity or as otherwise required by applicable Law; (viii) terminate or materially modify any ongoing clinical trial (including any post approval study) with respect to any Product, except in the Ordinary Course event of Business; (g) change, increase a safety concern or amend the rate of remuneration as otherwise necessary to comply with any Governmental Entity or amount of bonuses or other benefits or any other terms of employment of any Employee (whether payable in cash, equity compensation or otherwise) except in the Ordinary Course of Business; (h) grant any severance or termination pay to any Employee (whether payable in cash, equity compensation or otherwise), or adopt any new severance plan, amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Employee on the date hereof; (i) adopt or amend or enter into any Employee Plan or Employee Contract; (j) revalue any of the assets or properties of the Acquired Companies; (k) make or change any election in respect of Taxes of the Acquired Companies or Seller, adopt or change any accounting method in respect of Taxes of the Acquired Companies or Seller, enter into any closing agreement, settle any claim or assessment in respect of Taxes of the Acquired Companies or Seller, consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes of the Acquired Companies or Seller or file any Tax Return of the Acquired Companies unless such Tax Return has been provided to Buyer for review within a reasonable period prior to the due date for filing and Parent has consented to such filing; (l) commence or settle any action, suit, claim, arbitration, investigation or other Proceeding before any court or administrative agency or obtain any releases of any such action, suit, claim, arbitration, investigation or other Proceeding that is threatened; (m) take any action, or fail to take any action, which would result in any of the representations and warranties set forth in Article III not being true and correct on and as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of the Closing Date; (n) issue, grant, deliver or sell or authorize, pledge or otherwise encumber, or propose the issuance, grant, delivery, sale, pledge or encumbrance of, or purchase or propose the purchase of, any membership interests of the Acquired Companies or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating either entity to issue any such membership interests or other convertible securities; (o) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its membership interests, or split, combine or reclassify any of its membership interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for membership interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any membership interests (or options, warrants or other rights exercisable therefor)Law; or (pix) take, agree or agree in writing or otherwise commit to take, do any of the actions described in Sections 5.5(a) through (o) above, or any other action that would prevent the Acquired Companies from performing or cause the Seller or the Acquired Companies not to perform its covenants hereunderforegoing.