Common use of Conduct Prior to the Closing Date Clause in Contracts

Conduct Prior to the Closing Date. 5.1 Conduct of Business of C-CUBED. Except as set forth on Schedule 5.1 hereto, between the date of this Agreement and the Closing Date or the date, if any, on which this Agreement is earlier terminated pursuant to its terms, C-CUBED shall, except to the extent that Parent shall otherwise consent in writing (such consent not to be unreasonably withheld), (a) carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, except when subject to good faith disputes over such obligations, and use all commercially reasonable efforts consistent with past practices and policies to preserve intact its present business organizations, keep available the services of its present officers and employees and preserve its relationships with customers, suppliers and others having business relationships with it, to the end that C-CUBED’s goodwill and ongoing business shall be unimpaired at the Closing Date, and (b) promptly notify Parent of any event or occurrence which will have or could reasonably be expected to have an C-CUBED Material Adverse Effect. In addition, between the date of this Agreement and the Closing Date or the date, if any, on which this Agreement is earlier terminated pursuant to its terms, C-CUBED and its Subsidiaries shall not, except as set forth on Schedule 5.1 hereto or to the extent that Parent shall otherwise consent in writing (such consent not to be unreasonably withheld): (a) amend its charter documents or by-laws; (b) declare or pay any dividends or distributions on its outstanding shares of capital stock or purchase, redeem or otherwise acquire for consideration any shares of its capital stock or other securities except in accordance with agreements existing as of the date hereof; (c) issue or sell any shares of its capital stock, effect any stock split or otherwise change its capitalization as it exists on the date hereof, or issue, grant, or sell any options, stock appreciation or purchase rights, warrants, conversion rights or other rights, securities or commitments obligating it to issue or sell any shares of its capital stock, or any securities or obligations convertible into, or exercisable or exchangeable for, any shares of its capital stock; (d) borrow or agree to borrow any funds or voluntarily incur, or assume or become subject to, whether directly or by way of guaranty or otherwise, any obligation or Liability, except obligations incurred in the ordinary course of business consistent with past practices; (e) pay, discharge or satisfy any claim, obligation or Liability in excess of $25,000 (in any one case) or $50,000 (in the aggregate), other than the payment, discharge or satisfaction in the ordinary course of business of obligations reflected on or reserved against in the C-CUBED Balance Sheet, or incurred since the date of the C-CUBED Balance Sheet in the ordinary course of business consistent with past practices; (f) except as required by applicable law, adopt or amend in any material respect, any agreement or plan (including severance arrangements) for the benefit of its employees; (g) sell, mortgage, pledge or otherwise encumber or dispose of any of its assets which are material, individually or in the aggregate, to the business of C-CUBED, except in the ordinary course of business consistent with past practices; (h) acquire by merging or consolidating with, or by purchasing any equity or partnership interest in or a material portion of the assets of, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets which are material, individually or in the aggregate, to the business of C-CUBED, except in the ordinary course of business consistent with past practices; (i) increase the following amounts payable or to become payable: (i) the salary of any of its directors or officers, other than increases in the ordinary course of business consistent with past practices and not exceeding, in any case, five percent (5%) of the director’s or officer’s salary on the date hereof, (ii) any other compensation of its directors or officers, including any increase in benefits under any bonus, insurance, pension or other benefit plan made for or with any of those persons, other than increases that are provided in the ordinary course of business consistent with past practices to broad categories of employees and do not discriminate in favor of the aforementioned persons, and (iii) the compensation of any of its other employees, consultants or agents except in the ordinary course of business consistent with past practices; (j) dispose of, permit to lapse, or otherwise fail to preserve its rights to use the C-CUBED Proprietary Rights or enter into any settlement regarding the breach or infringement of, all or any part of the C-CUBED Proprietary Rights, or modify any existing rights with respect thereto, other than in the ordinary course of business consistent with past practices, and other than any such disposal, lapse, failure, settlement or modification that does not have and could not reasonably be expected to have an C-CUBED Material Adverse Effect; (k) sell, or grant any right to exclusive use of, all or any part of the C-CUBED Proprietary Rights; (l) enter into any contract or commitment or take any other action that is not in the ordinary course of its business or could reasonably be expected to have an adverse impact on the transactions contemplated hereunder or that would have or could reasonably be expected to have an C-CUBED Material Adverse Effect; (m) amend in any material respect any agreement to which it is a party, the amendment of which will have or could reasonably be expected to have an C-CUBED Material Adverse Effect; (n) waive, release, transfer or permit to lapse any claim or right (i) that has a value, or involves payment or receipt by it, of more than $25,000 or (ii) the waiver, release, transfer or lapse of which would have or could reasonably be expected to have an C-CUBED Material Adverse Effect; (o) take any action that would materially decrease C-CUBED’s Net Worth; (p) make any change in any method of accounting or accounting practice other than changes required to be made in order that C-CUBED’s financial statements comply with GAAP; or (q) agree, whether in writing or otherwise, to take any action described in this Section 5.1.

Conduct Prior to the Closing Date. 5.1 Conduct of Business of C-CUBEDthe Company. Except as set forth on Schedule 5.1 hereto, between the date of this Agreement and the Closing Date or the date, if any, on which this Agreement is earlier terminated pursuant to its terms, C-CUBED the Company shall, except to the extent that Parent shall otherwise consent in writing (such consent not to be unreasonably withheld), (ai) carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, except when subject to good faith disputes over such obligations, and use all commercially reasonable efforts consistent with past practices and policies to preserve intact its the Company's present business organizations, keep available the services of its present officers and employees and preserve its relationships with customers, suppliers and others having business relationships with it, to the end that C-CUBED’s the Company's and each of its Subsidiaries' goodwill and ongoing business shall be unimpaired at the Closing Date, and (bii) promptly notify Parent of any event or occurrence which will have or could reasonably be expected to have an C-CUBED a Company Material Adverse Effect. In addition, between the date of this Agreement and the Closing Date or the date, if any, on which this Agreement is earlier terminated pursuant to its terms, C-CUBED the Company and each of its Subsidiaries shall not, except as set forth on Schedule 5.1 hereto or to the extent that Parent shall otherwise consent in writing (such consent not to be unreasonably withheld): (a) amend its charter documents or by-laws; (b) declare or pay any dividends or distributions on its the Company's outstanding shares of capital stock or nor purchase, redeem or otherwise acquire for consideration any shares of its the Company's capital stock or other securities except in accordance with agreements existing as of the date hereof; (c) issue or sell any shares of its capital stock, effect any stock split or otherwise change its capitalization as it exists on the date hereof, or issue, grant, or sell any options, stock appreciation or purchase rights, warrants, conversion rights or other rights, securities or commitments obligating it to issue or sell any shares of its capital stock, or any securities or obligations convertible into, or exercisable or exchangeable for, any shares of its capital stock, other than the issuance of shares of Company Common Stock pursuant to the conversion, exercise or exchange of securities therefore outstanding as of the date hereof in accordance with their terms; (d) borrow or agree to borrow any funds or voluntarily incur, or assume or become subject to, whether directly or by way of guaranty or otherwise, any obligation or Liability, except obligations incurred in the ordinary course of business consistent with past practices; (e) pay, discharge or satisfy any claim, obligation or Liability in excess of $25,000 (in any one case) or $50,000 (in the aggregate), other than the payment, discharge or satisfaction in the ordinary course of business of obligations reflected on or reserved against in the C-CUBED Company Balance Sheet, or incurred since the date of the C-CUBED Company Balance Sheet in the ordinary course of business consistent with past practicespractices or in connection with this transaction; (f) except as required by applicable law, adopt or amend in any material respect, any agreement or plan (including severance arrangements) for the benefit of its employees; (g) sell, mortgage, pledge or otherwise encumber or dispose of any of its assets which are material, individually or in the aggregate, to the business of C-CUBEDthe Company, except in the ordinary course of business consistent with past practices; (h) acquire by merging or consolidating with, or by purchasing any equity or partnership interest in or a material portion of the assets of, any business or any corporation, partnershippartnership interest, association or other business organization or division thereof, or otherwise acquire any assets which are material, individually or in the aggregate, to the business of C-CUBEDthe Company, except in the ordinary course of business consistent with past practices; (i) increase the following amounts payable or to become payable: (i) the salary of any of its directors or officers, other than increases in the ordinary course of business consistent with past practices and not exceeding, in any case, five percent (5%) of the director’s 's or officer’s 's salary on the date hereof, (ii) any other compensation of its directors or officers, including any increase in benefits under any bonus, insurance, pension or other benefit plan made for or with any of those persons, other than increases that are provided in the ordinary course of business consistent with past practices to broad categories of employees and do not discriminate in favor of the aforementioned persons, and (iii) the compensation of any of its other employees, consultants or agents except in the ordinary course of business consistent with past practices; (j) dispose of, permit to lapse, or otherwise fail to preserve its the rights of the Company to use the C-CUBED Company Proprietary Rights or enter into any settlement regarding the breach or infringement of, all or any part of the C-CUBED Company Proprietary Rights, or modify any existing rights with respect thereto, other than in the ordinary course of business consistent with past practices, and other than any such disposal, lapse, failure, settlement or modification that does not have and could not reasonably be expected to have an C-CUBED a Company Material Adverse Effect; (k) sell, or grant any right to exclusive use of, all or any part of the C-CUBED Company Proprietary Rights; (l) enter into any contract or commitment or take any other action that is not in the ordinary course of its business or could reasonably be expected to have an adverse impact on the transactions contemplated hereunder or that would have or could reasonably be expected to have an C-CUBED a Company Material Adverse Effect; (m) amend in any material respect any agreement to which it the Company is a party, party the amendment of which will have or could reasonably be expected to have an C-CUBED a Company Material Adverse Effect; (n) waive, release, transfer or permit to lapse any claim or right (i) that has a value, or involves payment or receipt by it, of more than $25,000 or (ii) the waiver, release, transfer or lapse of which would have or could reasonably be expected to have an C-CUBED a Company Material Adverse Effect; (o) take any action that would materially decrease C-CUBED’s the Company's Net WorthAssets; (p) make any change in any method of accounting or accounting practice other than changes required to be made in order that C-CUBED’s the Company's financial statements comply with GAAP; or (q) agree, whether in writing or otherwise, to take any action described in this Section 5.1.

Conduct Prior to the Closing Date. 5.1 Conduct of Business of C-CUBEDCompany's Business. Except as set forth on Schedule 5.1 hereto5.1, between the date of this Agreement hereof and the Closing Date or the date, if any, on which this Agreement is earlier terminated pursuant to its termsterms ("Pre-Closing Period"), C-CUBED the Company shall, except to the extent that Parent shall otherwise consent in writing (such consent not to be unreasonably withheld), (a) carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, pay its debts and taxes Taxes when due subject to good faith disputes over such debts or taxesTaxes, pay or perform other material obligations when due, except when subject to good faith disputes over such obligations, and use all commercially reasonable efforts consistent with past practices and policies to preserve intact its present the Company's current business organizations, keep available the services of its present current officers and employees and preserve its relationships with customers, suppliers and others having business relationships with it, to the end that C-CUBED’s the Company's goodwill and ongoing business shall be unimpaired at the Closing Date, and (b) promptly notify Parent Buyer of any event or occurrence which will have or could reasonably be expected to have an C-CUBED a Company Material Adverse Effect. In addition, between during the date of this Agreement and Pre-Closing Period, the Closing Date or the date, if any, on which this Agreement is earlier terminated pursuant to its terms, C-CUBED and its Subsidiaries shall notCompany, except as set forth on Schedule 5.1 hereto or to the extent that Parent 5.1, shall otherwise consent in writing (such consent not to be unreasonably withheld):not: (a) amend its charter documents or by-lawsOrganizational Documents; (b) declare or pay any dividends or distributions on its the Company's outstanding shares of capital stock or nor purchase, redeem or otherwise acquire for consideration any shares of its the Company's capital stock or other securities except in accordance with agreements existing as of the date hereofsecurities; (c) issue or sell any shares of its capital stock, effect any stock split or otherwise change its capitalization as it exists on the date hereof, or issue, grant, or sell any options, stock appreciation or purchase rights, warrants, conversion rights or other rights, securities or commitments obligating it to issue or sell any shares of its capital stock, or any securities or obligations convertible into, or exercisable or exchangeable for, any shares of its capital stock; (d) borrow or agree to borrow any funds or voluntarily incur, or assume or become subject to, whether directly or by way of guaranty or otherwise, any obligation or Liability, except obligations incurred in the ordinary course of business consistent with past practices; (e) pay, discharge or satisfy any claim, obligation claim or Liability in excess of $25,000 10,000 (in any one case) or $50,000 25,000 (in the aggregate), other than the payment, discharge or satisfaction in the ordinary course of business of obligations reflected on or reserved against in the C-CUBED Company Balance Sheet, -26- or incurred since the date of the C-CUBED Balance Sheet Date in the ordinary course of business consistent with past practicespractices or in connection with this Transaction; (f) except as required by applicable lawApplicable Laws, adopt or amend in any material respect, any agreement or plan (including severance arrangements) for the benefit of its employees; (g) sell, mortgage, pledge or otherwise encumber or dispose of any of its assets which are material, individually or in the aggregate, to the business of C-CUBEDthe Company, except in the ordinary course of business consistent with past practices; (h) acquire a cquire by merging or consolidating with, or by purchasing any equity or partnership interest in or a material portion of the assets of, any business or any corporation, partnership, association or other business organization or division thereofPerson, or otherwise acquire any assets which are material, individually or in the aggregate, to the business of C-CUBEDthe Company, except in the ordinary course of business consistent with past practices; (i) increase the following amounts payable or to become payable: (i) the salary of any of its directors or officers, other than increases in the ordinary course of business consistent with past practices and not exceeding, in any case, five percent (5%) of the director’s 's or officer’s 's salary on the date hereof, (ii) any other compensation of its directors or officers, including any increase in benefits under any bonus, insurance, pension or other benefit plan made for or with any of those persons, other than increases that are provided in the ordinary course of business consistent with past practices to broad categories of employees and do not discriminate in favor of the aforementioned persons, and (iii) the compensation of any of its other employees, consultants or agents except in the ordinary course of business consistent with past practices; (j) dispose of, permit to lapse, or otherwise fail to preserve its the rights of the Company to use the C-CUBED Company Proprietary Rights or enter into any settlement regarding the breach or infringement of, all or any part of the C-CUBED Company Proprietary Rights, or modify any existing rights with respect thereto, other than in the ordinary course of business consistent with past practices, and other than any such disposal, lapse, failure, settlement or modification that does not have and could not reasonably be expected to have an C-CUBED a Company Material Adverse Effect; (k) sell, or grant any right to exclusive use of, all or any part of the C-CUBED Company Proprietary Rights; (l) enter into any contract or commitment or take any other action that is not in the ordinary course of its business or could reasonably be expected to have an adverse impact on the transactions contemplated hereunder Transactions or that would have or could reasonably be expected to have an C-CUBED a Company Material Adverse Effect; (m) amend in any material respect any agreement to which it the Company is a party, party the amendment of which will have or could reasonably be expected to have an C-CUBED a Company Material Adverse Effect; ; -27- (n) waive, release, transfer or permit to lapse any claim or right (i) that has a value, or involves payment or receipt by it, of more than $25,000 10,000 or (ii) the waiver, release, transfer or lapse of which would have or could reasonably be expected to have an C-CUBED a Company Material Adverse Effect; (o) take any action that would materially decrease C-CUBED’s Net Worth; (p) make any change in any method of accounting or accounting practice other than changes required to be made in order that C-CUBED’s financial statements comply with GAAP; or (q) agree, whether in writing or otherwise, to take any action described in this Section 5.1.