Common use of Operating Covenants Clause in Contracts

Operating Covenants. Buyer shall have the right to operate the business of the Company (including the Business) in the manner it deems appropriate and has no obligation to operate the business of the Company (including the Business) to maximize the Earnout Amount. Buyer will have the right to make any business decisions relating to the Company, including capital expenditures, distribution arrangements, procurement decisions, pricing of products and services and compensation of employees, that Buyer in good faith determines is in the best interest of the Company, its Affiliates and their stockholders. Notwithstanding the foregoing provisions of this Section 1(j), Buyer agrees that it will not take any action with respect to the Business or the Company, the purpose of which is to minimize the Earnout Amount. In addition, during the Earnout Period, Buyer shall, and shall cause the Company to, act in good faith and use commercially reasonable efforts to: (i) allow representatives designated by Seller to (A) review and retain copies of all books and records, documents and work papers related to such operations, (B) interview management of the Company and its Affiliates as reasonably requested and (C) discuss such operations with a representative designated by Buyer; provided, however, that any such review or discussion shall be done in such a manner so as not to unreasonably interfere with the normal conduct of Buyer’s or the Company’s business; (ii) cause the Company to remain in material compliance with all applicable Laws; (iii) operate the business and maintain adequate records of the Company in a manner that will allow EBITDA to be calculated on a stand alone basis separate from the operations of Buyer and its other Affiliates; (iv) refer (or cause to be referred) to the Company all new projects and contracts of Buyer and its Subsidiaries that relate to the Business as conducted by the Companies on the Closing Date; (v) not divert or direct to any of Buyer’s other Affiliates customer projects, sales or orders that relate to the Business as conducted by the Companies on the Closing Date; (vi) not change the Company’s fiscal year or accounting policies until its obligations under this Section 1 have been satisfied, unless required by GAAP or otherwise agreed to by Buyer and Seller; and (vii) from the Effective Date until the end of the Earnout Period, maintain the Company as a separate subsidiary of Buyer or one of its Subsidiaries and not dissolve or liquidate the Company.

Operating Covenants. Buyer shall have (a) During the right to operate period from the business date of the Company (including the Business) in the manner it deems appropriate and has no obligation to operate the business of the Company (including the Business) to maximize the Earnout Amount. Buyer will have the right to make any business decisions relating this Agreement to the CompanyEffective Time, including capital expendituresexcept either (i) as consented to by written notice delivered by Purchaser in accordance with Section 12.5 in response to a written or oral request from the Corporation, distribution arrangementswhich response shall not be unreasonably delayed, procurement decisions, pricing of products and services and compensation of employees, that Buyer in good faith determines is in the best interest of the Company, or (ii) as otherwise permitted by or required to meet its Affiliates and their stockholders. Notwithstanding the foregoing provisions obligations under this Article V or any other provision of this Section 1(j), Buyer agrees that it will not take any action with respect to the Business or the CompanyAgreement, the purpose of which is to minimize the Earnout Amount. In addition, during the Earnout Period, Buyer Corporation shall, and shall cause the Company Subsidiaries to, act : (1) conduct its business and operate the Real Property only in good faith the ordinary course and in substantially the same manner as heretofore conducted; (2) use commercially reasonable efforts to:to preserve intact its business organizations and goodwill; (3) not offer any capital stock of the ▇▇▇▇▇▇ Corporations or the Real Property for sale to any Person, consider unsolicited offers from any Person for the purchase of any capital stock of the ▇▇▇▇▇▇ Corporations or the Real Property or enter into a contract for the sale of any capital stock of the ▇▇▇▇▇▇ Corporations or the Real Property to any Person, whether or not such contract is contingent on the termination of this Agreement; (4) not enter into discussions with any other Person regarding the merger of the Corporation or the sale of any capital stock of the ▇▇▇▇▇▇ Corporations or the sale of the Real Property directly or indirectly; (5) duly and timely file all reports, Tax Returns and other documents related to Taxes that are required to be filed with federal, state, local and Tax other authorities, subject to extensions permitted by law, provided the Corporation notifies Purchaser that it is availing itself of such extensions and provided such extensions do not adversely affect the Corporation's status as an S corporation under the Code, and timely pay all material Taxes; (6) not (i) allow representatives designated make or rescind any express or deemed election relative to Taxes (unless such election or rescission is required by Seller law or necessary (1) to preserve the Corporation's status as an S corporation, or (A2) review and retain copies of all books and records, documents and work papers related to such operations, (B) interview management qualify or preserve the status of the Company Operating Sub and its Affiliates the Finance Sub as reasonably requested qualified subchapter S subsidiaries for federal income tax purposes (in which event the ▇▇▇▇▇▇ Corporation shall not fail to make such election in a timely manner)) and (C) discuss such operations with a representative designated by Buyer; provided, however, that any such review or discussion shall be done in such a manner so as not to unreasonably interfere with the normal conduct of Buyer’s or the Company’s business; (ii) cause fail to take any and all actions for the Company to remain in material compliance with all applicable Laws; (iii) operate the business and maintain adequate records of the Company in a manner that will allow EBITDA to be calculated on a stand alone basis separate period from the operations of Buyer and its other Affiliates; (iv) refer (or cause to be referred) date hereof to the Company all new projects and contracts of Buyer and its Subsidiaries that relate Effective Time necessary for the Corporation to satisfy the Business requirements to qualify as conducted by the Companies on the Closing Date; (v) not divert or direct to any of Buyer’s other Affiliates customer projects, sales or orders that relate to the Business as conducted by the Companies on the Closing Date; (vi) not change the Company’s fiscal year or accounting policies until its obligations under this Section 1 have been satisfied, unless required by GAAP or otherwise agreed to by Buyer and Selleran S corporation; and (vii7) from the Effective Date until the end of the Earnout Periodnot settle or compromise any material federal, maintain the Company as a separate subsidiary of Buyer state, local or one of its Subsidiaries and not dissolve or liquidate the Companyforeign Tax liability.

Operating Covenants. Buyer shall have The Company agrees that, from the right to operate date of this Agreement until the business earlier of the Company Closing or the valid termination of this Agreement in accordance with Section 10.1, except as (i) set forth on Schedule 7.9(a), (ii) required by applicable Law (including COVID-19 Measures), (iii) expressly required or contemplated by this Agreement or (iv) otherwise with the Business) in the manner it deems appropriate and has no obligation to operate the business prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), the Company (including the Business) to maximize the Earnout Amount. Buyer will have the right to make any business decisions relating to the Company, including capital expenditures, distribution arrangements, procurement decisions, pricing of products and services and compensation of employees, that Buyer in good faith determines is in the best interest of the Company, its Affiliates and their stockholders. Notwithstanding the foregoing provisions of this Section 1(j), Buyer agrees that it will not take any action with respect to the Business or the Company, the purpose of which is to minimize the Earnout Amount. In addition, during the Earnout Period, Buyer shall, and shall cause each Subsidiary of the Company to, act in good faith and use commercially reasonable efforts to: (i) allow representatives designated by Seller to (Ax) review and retain copies operate its business in all material respects in the ordinary course of all books and recordsbusiness (including spending on marketing activities on an average monthly basis of no less than $2,500,000 per month (prorated for any partial months), documents and work papers related to with such operations, (B) interview management of average being calculated using the total amount spent by the Company and its Affiliates as reasonably requested Subsidiaries between the date hereof and the Closing Date) between the date hereof and the Closing Date), (Cy) discuss such operations preserve intact its current business organization, keep available the services of its current officers and senior management and material contractors and maintain its relations and goodwill with a representative designated by Buyerall material suppliers, customers and other Persons having material business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or any such review or discussion of its Subsidiaries with respect to matters specifically addressed by any provision of clause (z) shall be done deemed a breach of the covenants contained in clauses (x) or (y) unless such action would constitute a manner so as breach of such specific provision of clause (z); provided, further, that the failure by the Company to take any action prohibited by any clause of clause (z) shall not be deemed to be a breach of the covenants contained in this sentence; and (z) not take any actions set forth below: (i) (A) make distributions (other than cash distributions necessary to cause Closing Cash not to unreasonably interfere with exceed the normal conduct maximum thereof as contemplated by the definition of Buyer’s Closing Cash), (B) pay any expense or other liability outside the Company’s ordinary course of business or (C) engage in any intercompany transactions between Company and any of its Subsidiary, other than in the ordinary course of business; (ii) cause increase the compensation or benefits of, grant any new right to severance or termination pay to, any present or former director, officer, employee or consultant of the Company, or loan or advance any money or other property to any present or former director, officer, employee or consultant of the Company, other than increases in compensation in the ordinary course of business consistent with past practice, as required by any Company to remain Plan or Seller Plan as in material compliance with all applicable Lawseffect on the date of this Agreement; (iii) operate directly or indirectly sell, assign, license, transfer, convey, lease, abandon, let lapse or enter the business and maintain adequate records public domain, or otherwise dispose of any of the material properties or assets of the Company in a manner that will or any of its Subsidiaries, encumber or subject to any Lien or allow EBITDA or suffer to be calculated on a stand alone basis separate from encumbered any of the operations material properties or assets of Buyer the Company or any of its Subsidiaries, in each case, whether tangible or intangible and its other Affiliatesthan in the ordinary course of business relating to the development, production, financing or Exploitation of film, television or other content; (iv) refer (cancel or cause to be referred) compromise any material debt or material claim or waive or release any material right of the Company or any of its Subsidiaries, accelerate or delay collection of notes or accounts receivable that are material to the Company all new projects and contracts in advance of Buyer and its Subsidiaries or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business or delay or accelerate payment of any account payable that relate is material to the Business as conducted by Company in advance of its due date or the Companies on date such Liability would have been paid in the Closing Dateordinary course of business; (v) not divert enter into commitments for capital expenditures of the Company or direct to any of Buyer’s other Affiliates customer projects, sales or orders its Subsidiaries in excess of $500,000 for all commitments in the aggregate (excluding any such commitment that relate will only be effective and binding in the event that this Agreement is validly terminated pursuant to the Business as conducted by the Companies on the Closing DateArticle X hereof); (vi) not change (i) amend (except as provided in the Company’s fiscal year last sentence of Section 7.9(d)) or accounting policies until its obligations under this Section 1 have been satisfiedterminate or give notice to terminate any Material Contract (including the Licensed Technology Agreement), (ii) enter into any Contract that is intended to replace or succeed to the Licensed Technology Agreement, unless required by GAAP such Contract is only effective and binding in the event that this Agreement is validly terminated pursuant to Article X hereof, and/or (iii) migrate or otherwise agreed to transfer any of the Services or the Pantaya Business from the platforms and services contemplated by Buyer and Seller; andthe Licensed Technology Agreement; (vii) from the Effective Date until the end enter into, modify, or ratify any collective bargaining, labor or similar Contract; (viii) make a material change in financial or tax accounting principles, methods, policies or practices, except as required or permitted by GAAP; (ix) make, revoke or change any material election with respect to Taxes (including U.S. federal, state, local and foreign Tax entity classification statuses), settle or compromise any Tax audit, claim, or assessment or any liability for material Taxes, file any material amendment to a Tax Return, enter into any material closing agreement or obtain any material Tax ruling or seek to change any material Tax accounting period, surrender any right to claim a refund of material Taxes, consent to any extension or waiver with respect to any material Tax claim, assessment, or liability, or prepare or file any Tax Return in a manner inconsistent with past practice in a material respect; (x) (A) grant to any Person any license, sublicense, covenant not to s▇▇, immunity, authorization, consent, release, waiver or other right with respect to any material Owned Intellectual Property (other than non-exclusive licenses, sublicenses or options granted to customers of the Earnout PeriodCompany or in relation to a settlement agreement entered into with Lions Gate Entertainment Corporation or any of its subsidiaries) or (B) abandon, maintain let lapse or enter the public domain, sell, assign, transfer or convey to any Person any rights to any material Owned Intellectual Property, in each case of (A) and (B), other than in the ordinary course of business relating to the development, production, financing or Exploitation of film, television or other content; (xi) make or commit to undertake any new audiovisual projects, other than (A) as set forth on Schedule 7.9(a)(xi), or (B) any such projects that would be paid in full at or prior to the Closing; or (xii) agree, in writing or otherwise, to take any of the foregoing actions, or take any action; provided that, nothing contained in this Agreement shall (A) give the Buyer the right to control or direct the operations of the Company as a separate subsidiary or its Subsidiary; or (B) prohibit or restrict the Company or its Subsidiaries’ ability to take or not take any action in response to COVID-19 (including any COVID-19 Measures). Notwithstanding anything to the contrary in this Agreement any COVID-19 Measures taken, or omitted to be taken, by any of Buyer the Company or one of its Subsidiaries and not dissolve in good faith pursuant to any applicable Law or liquidate the Companyany other directive, pronouncement or guideline issued by a Governmental Authority providing for business closures, “sheltering-in-place” or other similar restrictions that relate to or arise out of COVID-19 shall in no event be deemed to constitute a breach of this Section 7.9(a).

Operating Covenants. Buyer shall have From the right to operate date of this Agreement until the business Effective Time, unless Parent otherwise consents in writing, except (i) as set forth in Section 6.1 of the Company Disclosure Letter, (ii) as otherwise expressly required by this Agreement or (iii) as required by applicable Law (including as required by any COVID-19 Measures), the Business) in the manner it deems appropriate Company will, and has no obligation to operate the business will cause each of the Company Subsidiaries to use reasonable best efforts to (A) conduct its business in the ordinary course of business in a commercially reasonable manner and consistent with its past practice; (B) preserve intact its respective business organization, assets and goodwill and relationships with all Governmental Authorities, customers, employees, contractors, suppliers, distributors, licensors, licensees, collaborators, strategic and joint venture partners and others having material business dealings with the Company or any Company Subsidiary; (C) keep available the services of its and the Company Subsidiaries’ current officers and key employees; (D) maintain its and the Company Subsidiaries’ material rights and franchises; and (E) comply with all applicable Laws, in all material respects, in each case, consistent with industry and past practice. In addition to and without limiting the generality of the foregoing, from the date of this Agreement until the Effective Time, unless Parent otherwise consents in writing, except (i) as set forth in Section 6.1 of the Company Disclosure Letter, (ii) as otherwise expressly required by this Agreement or (iii) as required by applicable Law (including as required by any COVID-19 Measures), the BusinessCompany will not, and will not permit any Company Subsidiary to: (a) amend, modify or enter into any of the Constituent Documents, or the terms of any Security, of the Company or any Company Subsidiary or any Constituent Documents to maximize the Earnout Amount. Buyer will have the right to which any such entities are a party; (b) declare, set aside, make or pay any business decisions relating dividend or other distribution (whether in cash, stock or property) in respect of any Securities, other than cash dividends or distributions by wholly-owned Company Subsidiaries to the CompanyCompany in ordinary course of business consistent with past practice; (c) adjust, including capital expendituressplit, distribution arrangementsreverse split, procurement decisionscombine, pricing subdivide or reclassify any Securities or issue or propose or authorize the issuance of products any other Securities in respect of, in lieu of, or in substitution for, any Securities, other than issuances of shares of Common Stock upon (i) the exercise of Company Options or settlement of Company Restricted Stock Units, in each case, outstanding on the Capitalization Date and services in accordance with their respective terms and compensation of employees, that Buyer in good faith determines is in the best interest terms of the Company, its Affiliates and their stockholders. Notwithstanding applicable Stock Plan as in effect on the foregoing provisions date of this Section 1(j)Agreement, Buyer agrees that it will not take or (ii) the completion of the offering period in effect under the Company ESPP as of the date of this Agreement; (d) repurchase, redeem or otherwise acquire, directly or indirectly, any action Securities of the Company or any Company Subsidiary, or any other equity interests or any rights, warrants or options to acquire any such Securities, other than (i) the acquisition by the Company of shares of Common Stock in connection with the surrender of shares of Common Stock by holders of Company Options outstanding on the Capitalization Date in order to pay the exercise price thereof, (ii) the withholding of shares of Common Stock to satisfy Tax obligations with respect to Company Equity Awards outstanding on the Capitalization Date, or (iii) the acquisition by the Company of Company Equity Awards outstanding on the Capitalization Date in connection with the forfeiture thereof; (e) (i) issue, sell, transfer, dispose of, grant, pledge or otherwise encumber any Securities of the Company or any Company Subsidiaries, other than issuances of Common Stock upon (A) the exercise of Company Options or settlement of Company Restricted Stock Units, in each case, outstanding on the Capitalization Date and in accordance with their respective terms and the terms of the applicable Stock Plan as in effect on the date of this Agreement or (B) the completion of the offering period in effect under the Company ESPP as of the date of this Agreement, or (ii) enter into any Contract with respect to the Business voting of any Securities; (f) merge or the Company, the purpose of which is to minimize the Earnout Amount. In addition, during the Earnout Period, Buyer shall, and shall cause consolidate the Company or any Company Subsidiary with any Person, or acquire or purchase (by merger; consolidation; acquisition of stock or assets; exercise of options to purchase, license, or otherwise acquire or obtain rights; or otherwise), directly or indirectly, Securities, assets or liabilities in any transaction or series of related transactions, (i) constituting a business or (ii) with a value or purchase price in the aggregate in excess of $1,000,000; (g) transfer, sell, assign, lease, grant any Lien on, license, surrender, cancel, abandon, divest, allow to lapse or otherwise dispose of (including by merger, consolidation, sale of stock or assets or otherwise) any material asset, product line, line of business, right or property (including any interest in a partnership, joint venture or similar entity), other than the sale of Company Products to customers and distributors in the ordinary course of business consistent with past practice pursuant to applicable Company Contracts and other than the disposal of unused, excess or obsolete tangible assets in the ordinary course of business consistent with past practice; (h) make any loans, advances or capital contributions to, act or investments in, any other Person other than (i) by the Company or any wholly-owned Company Subsidiary to or in good faith and use commercially reasonable efforts to:the Company or any wholly-owned Company Subsidiary or (ii) pursuant to any Contract or other legal obligation existing at the date of this Agreement set forth in Section 6.1(h) of the Company Disclosure Letter; (i) allow representatives designated create, incur, guarantee or assume any Indebtedness, or issue or sell any debt Securities, guarantees, loans or advances, except (i) Indebtedness incurred in the ordinary course of business consistent with past practice not to exceed $500,000 in the aggregate, (ii) Indebtedness between the Company and any Company Subsidiary or (iii) pursuant to any Contract existing at the date of this Agreement set forth in Section 6.1(i) of the Company Disclosure Letter; (j) make or commit to make any capital expenditure, except for aggregate expenditures in an amount not in excess of (and for projects consistent with) the capital expenditure budget made available to Parent prior to the date of this Agreement and set forth in Section 6.1(j) of the Company Disclosure Letter; (k) abandon, modify, waive or terminate any material Permit; (l) amend or modify, terminate, or waive or release any right under, any Covenant Contract or Lease, negotiate, renew or extend any Covenant Contract or Lease or enter into any Contract that would have been a Covenant Contract or Lease if it had been entered into prior to the date of this Agreement; (m) (i) sell, transfer, assign, lease, license or otherwise dispose of (whether by Seller merger, stock or asset sale or otherwise) to any Person any rights to any Owned Intellectual Property or Third Party Intellectual Property (except for licensing non-exclusive rights for the primary purpose of (A) review and retain copies of all books and recordsconducting clinical research, documents and work papers related to such operations, entered into with a clinical research organization; (B) interview management of the Company and its Affiliates as reasonably requested and material transfer, sponsored research or other similar matters; (C) discuss such operations with conducting clinical trials; or (D) manufacturing, labeling, or selling the Company’s or any Company Subsidiaries’ products), (ii) cancel, dedicate to the public, disclaim, forfeit, reissue, reexamine or abandon without filing a representative designated by Buyer; provided, however, that any such review or discussion shall be done substantially identical counterpart in such a manner so as not to unreasonably interfere the same jurisdiction with the normal conduct of Buyer’s same priority or allow to lapse (except with respect to Patents expiring in accordance with their terms) any Owned Intellectual Property or Third Party Intellectual Property, (iii) fail to make any filing, pay any fee, or take any other action necessary to prosecute and maintain in full force and effect any registered Owned Intellectual Property, (iv) make any change in Owned Intellectual Property or Third Party Intellectual Property that is or would reasonably be expected to materially impair such Intellectual Property or the Company’s businessor any Company Subsidiaries’ rights with respect thereto, (v) disclose to any Person (other than Representatives of Parent and Merger Sub), any Trade Secrets, know-how or confidential or proprietary information, except, in the case of confidential or proprietary information, in the ordinary course of business to a Person that is subject to confidentiality obligations, or (vi) fail to take or maintain reasonable measures to protect the confidentiality and value of Trade Secrets included in any Owned Intellectual Property; (iin) cause the Company forgive, cancel or compromise any debt or claim, or waive or release any right, of material value, or fail to remain in pay or satisfy when due any material compliance with all applicable Lawsliability or obligation; (o) other than as required by any Benefit Plan as in effect on the date of this Agreement, (i) increase the compensation payable or to become payable or the benefits provided to any Individual Service Provider, except for any merit and cost-of-living increases in the level of annual base salary or hourly wage rate for non-executive employees in the ordinary course of business consistent with past practice; (ii) grant any severance, retention, change in control or termination payments or benefits (or provide for any increase thereof) to, or pay, loan or advance any amount to, any such Individual Service Provider; (iii) operate grant any equity or equity-based awards to any such Individual Service Provider; (iv) establish, adopt, enter into, terminate or amend or otherwise modify benefits under any Benefit Plan (or any plan, program, policy, agreement or arrangement that would be a Benefit Plan if in effect on the business and maintain adequate records date hereof); or (v) except as required by Section 2.7, take any action to accelerate the vesting, lapsing of restrictions or timing of payment, or fund or in any other way secure the payment, in respect of any award or benefit provided pursuant to any Benefit Plan; (p) hire any employee or contractor (other than (i) to fill vacancies arising due to terminations of employment of non-executive officer employees or other contractor or (ii) as described in Section 6.1(p) of the Company Disclosure Letter, in a manner that will allow EBITDA to be calculated on a stand alone basis separate from each case in the operations ordinary course of Buyer and its business consistent with past practice) or terminate the employment of any executive officer other Affiliatesthan for cause; (q) enter into, amend or otherwise become bound by, or amend or modify, a collective bargaining agreement or similar labor Contract with a labor union, works council, employee committee or representative or other labor organization with respect to employees of the Company or any Company Subsidiary; (r) effect any “plant closing” or “mass layoff” as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any comparable Law; (s) settle or compromise any Proceeding, other than settlements or compromises that require only payments of money by the Company or the Company Subsidiaries without ongoing limits on the conduct or operation of the Company or the Company Subsidiaries, and after the Closing, Parent and its Affiliates, or other non-monetary relief, which payments of money will not exceed $1,000,000 per Proceeding or $5,000,000 in the aggregate for all such Proceedings, or enter into any consent, decree, injunction or similar restraint or Order or form of equitable relief; (t) adopt or implement a plan of complete or partial liquidation or resolution providing for or authorizing such liquidation or a dissolution, merger, restructuring, consolidation, recapitalization or other reorganization of the Company or any Company Subsidiary; (u) (i) make, revoke or amend any material election relating to Taxes, (ii) take any position on any Tax Return that is inconsistent with past practice or positions taken in preparing or filing similar Tax Returns in prior periods, (iii) settle or compromise any Proceeding relating to Taxes, (iv) refer make a written request for a ruling or determination of a Taxing Authority relating to Taxes, (v) file or cause re-file an amended Tax Return, (vi) surrender or waive any claim to be referred) to a Tax refund of the Company all new projects and contracts or any Company Subsidiary, (vii) enter into any closing agreement or similar Contract with respect to Taxes, (viii) extend or waive any statute of Buyer and limitations with respect to any Taxes of the Company or any Company Subsidiary or (ix) change any of its Subsidiaries that relate to the Business as conducted by the Companies on the Closing DateTax accounting methods, policies or practices; (v) not divert make any material change with respect to accounting policies or direct to any procedures, except as may be required by changes in GAAP after the date of Buyer’s other Affiliates customer projectsthis Agreement, sales or orders that relate to the Business as conducted by the Companies on the Closing Date; (vi) not change the Company’s its fiscal year or make any material change in internal accounting policies until its obligations under this Section 1 have been satisfied, unless required by GAAP or otherwise agreed to by Buyer disclosure controls and Sellerprocedures; andor (viiw) from the Effective Date until the end propose, authorize, agree or commit to do any of the Earnout Period, maintain the Company as a separate subsidiary of Buyer or one of its Subsidiaries and not dissolve or liquidate the Companyforegoing.

Operating Covenants. Buyer shall have From the right date of this Agreement until the earlier to operate the business occur of the Company (including the Business) Closing Date and this Agreement being terminated in the manner it deems appropriate and has no obligation to operate the business of accordance with Section 7.1, the Company (including the Business) to maximize the Earnout Amount. Buyer will have the right to make any business decisions relating to the Company, including capital expenditures, distribution arrangements, procurement decisions, pricing of products and services and compensation of employees, that Buyer in good faith determines is in the best interest of the Company, its Affiliates and their stockholders. Notwithstanding the foregoing provisions of this Section 1(j), Buyer agrees that it will not take any action with respect to the Business or the Company, the purpose of which is to minimize the Earnout Amount. In addition, during the Earnout Period, Buyer shall, and shall cause the Company to, act in good faith and use commercially reasonable efforts tonot: (i) allow representatives designated by Seller to (A) review and retain copies of all books and recordspurchase or redeem, documents and work papers related to such operationshowever effected, (B) interview management any equity interests of the Company and its Affiliates as reasonably requested and other than pursuant to this Agreement (C) discuss such operations with a representative designated by Buyer; provided, however, that which exception shall include any such review or discussion shall be done in such a manner so as not to unreasonably interfere repurchase of FOAEC Units substantially concurrently with the normal conduct Closing in connection with the purchase of Buyer’s the shares of Class A Common Stock constituting Sold Equity) or from a director, officer or employee in connection with the Company’s businesstermination of service or employment of any director, officer or employee of the Company under circumstances where the purchase of such equity is permitted in accordance with equity documents (including any applicable grant or similar agreement) as of the date hereof; (ii) cause voluntarily prepay in cash, or voluntarily accelerate the payment of, by means of a payoff, paydown, redemption, repurchase or otherwise, all or any portion of any indebtedness for borrowed money (other than to the extent specifically required by the terms of such indebtedness as of the date hereof, including with respect to any mandatory interest or amortization payments, in each case solely to the extent such payment is effected when and if required in accordance with the terms of such indebtedness as of the date hereof), and the Company shall cause Finance of America Funding LLC to remain in material compliance not take any of the foregoing actions with all applicable Lawsrespect to its 7.875% Senior Notes due 2025, its 7.875% Senior Notes due 2026 or its 10.000% Exchangeable Senior Notes due 2029 (except, with respect to Finance of America Funding LLC and the foregoing indebtedness, “as of the date hereof” shall also take into account any amendment or modification contemplated by the Support Agreement from and after the effectiveness of such amendment or modification); (iii) operate the business and maintain adequate records declare, set aside, make or pay any dividend or distribution (whether in cash, assets, shares, other securities or property or any combination thereof) in respect of any equity interests of the Company in a manner that will allow EBITDA to be calculated on a stand alone basis separate from or any of its Subsidiaries (other than among the operations of Buyer Company and its other AffiliatesSubsidiaries which do not involve payments to any third party); (iv) refer take any action (or inaction) (A) with the intent to delay or prevent the Closing from occurring or to cause any of the conditions set forth in Article V to not be referredsatisfied (including the receipt of the Solvency Opinion) or (B) with the knowledge that such action (or inaction) would reasonably be likely to materially delay or prevent the Closing from occurring or to cause any of the conditions set forth in Article V to not be satisfied (including the receipt of the Solvency Opinion), except this clause (B) shall not apply to any action (or inaction) taken by the Company all new projects and contracts if the Board of Buyer and Directors determines that the Company failing to take such action (or inaction) would be inconsistent with its Subsidiaries that relate to the Business as conducted by the Companies on the Closing Date;fiduciary duties; or (v) not divert authorize or direct commit to or otherwise agree to become obligated to do any of Buyer’s other Affiliates customer projects, sales or orders that relate to the Business as conducted action prohibited by the Companies on the Closing Date; (vi) not change the Company’s fiscal year or accounting policies until its obligations under this Section 1 have been satisfied, unless required by GAAP or otherwise agreed to by Buyer and Seller; and (vii) from the Effective Date until the end of the Earnout Period, maintain the Company as a separate subsidiary of Buyer or one of its Subsidiaries and not dissolve or liquidate the Company4.5.

Operating Covenants. Buyer shall have (a) From the right date of this Agreement until the earlier to operate occur of the business Closing Date and this Agreement being terminated in accordance with Section 9.1, except (x) as set forth on Section 7.1(a) of the Company Disclosure Letter, (including the Businessy) in the manner it deems appropriate and has no obligation as expressly (A) required or permitted by or pursuant to operate the business of this Agreement, (B) required by any Law or (C) required by any COVID-19 Measure applicable to the Company or any of its Subsidiaries, or (including z) with the Business) to maximize the Earnout Amount. Buyer will have the right to make any business decisions relating to the CompanyBuyer’s prior written consent (which consent shall not be unreasonably withheld, including capital expenditures, distribution arrangements, procurement decisions, pricing of products and services and compensation of employees, that Buyer in good faith determines is in the best interest of the Company, its Affiliates and their stockholders. Notwithstanding the foregoing provisions of this Section 1(jconditioned or delayed), Buyer agrees that it will not take any action with respect to the Business or the Company, the purpose of which is to minimize the Earnout Amount. In addition, during the Earnout Period, Buyer Company shall, and shall cause its Subsidiaries to, (A) conduct their respective businesses in the Ordinary Course in compliance with all applicable Laws (provided that no action by the Company toor any of its Subsidiaries with respect to the matters specifically addressed by any clause of Section 7.1(a) shall be deemed a breach of this sentence, act in good faith unless such action would constitute a breach of such relevant provision) and (B) use commercially reasonable efforts to preserve intact the business, assets, properties (including its present operations, facilities and other working conditions), organizations and goodwill of the Company and its Subsidiaries and relationships of the Company and its Subsidiaries with Governmental Authorities, material suppliers, landlords, lessors, licensors, licensees, distributors and other third parties and to keep available the services of their respective current officers and key employees. Notwithstanding the foregoing, ▇▇▇▇▇ agrees to respond as promptly as reasonably practicable to a consent request from the Company with respect to Section 7.1(a)(z)(A). (b) In addition to and without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Closing Date and this Agreement being terminated in accordance with Section 9.1, except (x) as set forth on Section 7.1(a) of the Company Disclosure Letter, (y) as expressly (A) required or permitted by or pursuant to this Agreement, (B) required by any Law or (C) required by any COVID-19 Measure applicable to the Company or any of its Subsidiaries or (z) with the Buyer’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries not to: (i) allow representatives designated issue, sell, pledge, transfer, dispose of or subject to any Lien (other than a Permitted Lien) any Equity Interest of the Company or any of its Subsidiaries, or any instrument or security exercisable or convertible into such Equity Interest; (ii) enter into a transaction outside of the Ordinary Course involving payments by Seller the Company or any of its Subsidiaries in any calendar year in excess of $500,000 individually or $1,000,000 in the aggregate (or equivalent thereof); (iii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring or other reorganization of the Company or any of its Subsidiaries, other than between or among the Company and/or any of its wholly-owned Subsidiaries; (iv) (A) amend the Organizational Documents of the Company or any of its Subsidiaries or (B) change the fundamental nature of its business, or (C) form any Subsidiary, partnership or joint venture entity; (v) acquire (whether by merger, consolidation, sale of stock, sale of assets or otherwise), in a single transaction or a series of related transactions, any Person or all or any material amount of assets, securities, properties, interests or businesses, other than pursuant to (A) review Company Contracts, including regarding the development of new Venues or (B) purchases of inventory or supplies; (vi) make any loans, advances or capital contributions to, or investments in, any other Person (other than the Company or any of its Subsidiaries), except (A) advances for travel and other normal business expenses to officers, employees and managers in the Ordinary Course that do not individually exceed $10,000 or in the aggregate exceed $250,000 or (B) pursuant to a Company Contract; (vii) sell, transfer, license or exploit, abandon, or otherwise dispose of, or permit the incurrence of any Lien (other than a Permitted Lien) on, any Trademark that is a Company Owned IP Right used by a current Venue, or any other material assets (including material Company Owned IP Rights), other than pursuant to the terms of Company Contracts, non-exclusive licenses in the Ordinary Course, licenses solely between or among the Company and its wholly-owned Subsidiaries, or in the Ordinary Course for sales of inventory; (viii) amend, terminate or cancel any Company Contract that governs the provision of management services to a Venue or that is a Company Real Property Lease; (ix) except as required by applicable Law or by the terms of a Company Benefit Plan, Collective Bargaining Agreement or other Contract in effect on the date of this Agreement: (A) increase, or announce the increase of, the compensation or benefits payable to any Company Service Provider or Former Company Service Provider, other than for any one-off increases in base salaries or hourly wages as reasonably required (as determined by the Company in the Ordinary Course) to retain copies any Company Service Provider whose total annual compensation is not (and, after such increase, would not be) in excess of all books $250,000; (B) grant, award or provide any bonus, severance, retention, change-in-control, equity or equity-based compensation or benefits to any current or former Company Service Provider, excluding the entrance into any severance agreements on the Company’s (or its applicable Subsidiaries’) standard form entered into in the Ordinary Course with Company Service Providers whose employment is terminated in accordance with clause (E) with terms consistent with Company Benefit Plans in effect on the date of this Agreement, subject to Section 7.1 (b)(xxi) (C) accelerate the payment or vesting of any compensation or benefit payable to any Company Service Provider or Former Company Service Provider; (D) establish, adopt, enter into, amend, modify or terminate any Company Benefit Plan (or any benefit of compensation plan, policy, program, agreement or arrangement that would be a Company Benefit Plan if in effect on the date hereof), excluding (w) entering into any “at will” (applicable only in the United States) offer letters, employment agreements, or consulting agreements on the Company’s (or its applicable Subsidiaries’) standard form in the Ordinary Course with respect to individuals who are hired following the date of this Agreement in the Ordinary Course in accordance with clause (E); provided that such offer letters, employment agreements or consulting agreements may be terminated by the Company or any of its Subsidiaries upon thirty (30) days or less advance notice without liability in excess of one month’s base salary and recordsreimbursement of the employer portion of COBRA payments (or the amount of severance required by applicable Law, documents if greater); (x) the entrance into any severance agreements on the Company’s (or its applicable Subsidiaries’) standard form entered into in the Ordinary Course with Company Service Providers whose employment is terminated in accordance with clause (E) with terms consistent with Company Benefit Plans in effect on the date of this Agreement, subject to Section 7.1 (b)(xxi) (y) in connection with the renewal, modification or replacement of any Company Benefit Plans that are customarily renewed, modified or replaced on an annual basis in the Ordinary Course so long as any renewal, modification or replacement would not result in a material increase in cost to the Company and work papers its Subsidiaries taken as a whole; and (z) taking any such action with respect to an immaterial Company Benefit Plan (or any benefit of compensation plan, policy, program, agreement or arrangement that would be an immaterial Company Benefit Plan if in effect on the date here) so long as such action would not result in a material increase in cost to the Company and its Subsidiaries taken as a whole; (E) hire or terminate (other than for cause) the employment or service of any employees, officers, independent contractors (who provide individual services) or directors whose total annual compensation or fees exceed $250,000, other than (x) the hiring of any such employee or independent contractor to replace any such person who leaves the Company or its Subsidiaries after the date of this Agreement or in fulfillment of open job requisitions as of the date of this Agreement as set forth on Section 7.1 (b)(ix) of the Company Disclosure Letter, in each case, with an equal or lesser total compensation and benefits level to any similarly situated employee or independent contractor or (y) the hiring or termination of any such independent contractors in the Ordinary Course whose services may be terminated by the Company or its Subsidiaries on thirty (30) days or less advance notice without liability; or (F) otherwise transfer or cause any of the Company Employees or Company Service Provider to cease to be a Company Employee or Company Service Provider, other than as permitted by clause (E), or cause any employee or individual service provider of MSG or any of its Affiliates (other than the Company its Subsidiaries) as of the date of this Agreement to become a Company Employee or Company Service Provider; (x) (A) enter into, amend (in any material respect), extend, or terminate any Collective Bargaining Agreement except (x) as done in the Ordinary Course (including in relation to Collective Bargaining Agreements addressed by partners and/or Contract counterparties), or (y) as done by reason of a Collective Bargaining Agreement expiring or coming up for renewal in accordance with its term, in each case, provided that any such action taken directly by the Company or any of its Subsidiaries would not result in (1) an obligation of the Company or any of its Subsidiaries to contribute to a Multiemployer Plan subject to Title IV of ERISA that is not listed on Section 3.13(e)(ii) of the Company Disclosure Letter or (2) material economic concessions or material operational restrictions to the Company and its Subsidiaries taken as a whole or (B) recognize or certify any Employee Representative Body or group of employees as the bargaining representative for any Company Employee, except as a result of such recognition or certification by partners and/or Contract counterparties of the Company or any of its Subsidiaries; (xi) settle, release, waive or compromise any Action related to the Company or any of its Subsidiaries other than (i) a settlement, release, waiver or compromise of any such operationsAction solely for money damages fully paid prior to the Closing Date which settlements include a full release of the Company and each of its applicable Subsidiaries or (ii) a release, waiver or compromise of any Actions against any third party involving more than $500,000 in the aggregate; (xii) except as required by applicable Law or as expressly contemplated by this Agreement, (A) make, change or revoke any Tax election of the Company or any of its Subsidiaries, change in any material Tax accounting method of the Company or any of its Subsidiaries, (B) interview management file any amended Tax Return of the Company and or its Affiliates as reasonably requested and Subsidiaries, (C) discuss such operations settle or compromise any audit, examination or other proceeding relating to an amount of Tax with respect to Company or any of its Subsidiaries, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or enter into any closing agreement with respect to the Company or any of its Subsidiaries, (D) adopt or change any Tax accounting method with respect to the Company or any of its Subsidiaries or (E) surrender any right to claim a representative designated by Buyermaterial Tax refund with respect to Company or any of its Subsidiaries, in each case, that would have the effect of increasing the Tax Liability (or decreasing any Tax asset) of the Company, its Subsidiaries or the Buyer for any Tax period ending after the Closing Date; provided, however, that nothing in this Section 7.1(b)(xii) or otherwise shall preclude the Company or any of its Subsidiaries from filing Tax Returns in the Ordinary Course (provided that such review or discussion shall be done Tax Returns are prepared and filed in such a manner so as not consistent with past practices to unreasonably interfere the extent such past practice is in accordance with the normal conduct of Buyer’s or the Company’s businessapplicable Law, and otherwise in accordance with applicable Law and this Agreement); (iixiii) cause make any change to the Company to remain in material compliance with all applicable Laws; (iii) operate the business and maintain adequate records financial accounting methods, principles or practices of the Company in a manner that will allow EBITDA to be calculated on a stand alone basis separate from the operations of Buyer and its other Affiliates; (iv) refer (or cause to be referred) to the Company all new projects and contracts of Buyer and its Subsidiaries that relate to the Business as conducted by the Companies on the Closing Date; (v) not divert or direct to any of Buyer’s other Affiliates customer projectsits Subsidiaries, sales or orders that relate to the Business except as conducted by the Companies on the Closing Date; (vi) not change the Company’s fiscal year or accounting policies until its obligations under this Section 1 have been satisfied, unless required by GAAP or otherwise agreed to by Buyer and Seller; anda Governmental Authority; (viixiv) incur any Indebtedness for borrowed money (including any assumption or guarantee thereof) other than Indebtedness (A) that is incurred under an instrument that is required to be, and is, repaid in full at or prior to the consummation of the Closing, or (B) incurred under the Credit Agreement in aggregate amounts not exceeding the amounts available thereunder in accordance with the terms thereof as of the date of this Agreement; (xv) incur any new capital expenditures in excess of the amounts allotted in the Company’s capital expenditure budget for the current fiscal year that has been delivered to Buyer on or prior to the date hereof or as required pursuant to Company Real Property Leases; (xvi) amend, terminate, waive any rights with respect to, or enter into any (A) Intercompany Contracts, (B) Contracts with Affiliates of the Sellers or (C) any other Contracts required to be disclosed pursuant Section 3.18; (xvii) make any declaration, set aside, make payment of or waive any rights to any dividend or other distribution (whether in cash, Equity Interests or property, or any combination thereof) with respect to any Equity Interests of the Company or any of its Subsidiaries; (xviii) accept the transfer of sponsorship of, or any Liabilities relating to, any Seller Benefit Plan from the Sellers or any of their Affiliates (other than the Company and its Subsidiaries); (xix) (A) withdraw (whether partially or completely) from any “multiemployer plan” (as such term is defined in Section 3(37) of ERISA) or incur any withdrawal Liability, in each case, within the Effective Date until meaning of Title IV of ERISA, or (B) commence an obligation to contribute to a Multiemployer Plan (except in connection with any Collective Bargaining Agreements addressed by partners and/or Contract counterparties that are permitted to be entered into, amended, or extended under Section 7.1(b)(x)); (xx) implement any employee layoffs, office or plant closings, or any other actions in each case in such a way as would implicate the end notice requirements of WARN; (xxi) waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, or other restrictive covenant obligation of any Company Employee, Former Company Employee, Company Service Provider or Former Company Service Provider earning at or above $250,000; (xxii) repurchase, redeem or otherwise acquire any of the Earnout Period, maintain Equity Securities of the Company as a separate subsidiary or any of Buyer its Subsidiaries; (xxiii) waive, forgive or one discount any amount owed or owing to the Company or any of its Subsidiaries (other than in Ordinary Course, and not dissolve for the avoidance of doubt, other than comps at venues for customers, VIPs and Company Service Providers); (xxiv) Other than renewals of existing Contracts, enter into any Contracts (A) other than in the Ordinary Course that would be required to be listed in Section 3.17(a) of the Company Disclosure Letter as a Company Contract hereunder, and (B) of the type set forth in Section 3.17(a)(ix) of the Company Disclosure Letter; or (xxv) agree, resolve or liquidate commit to do any of the foregoing. Notwithstanding the foregoing, the Buyer acknowledges and agrees on behalf of itself and its Affiliates that: (a) nothing contained in this Agreement shall give the Buyer or any of its Affiliates, directly or indirectly, the right to control or direct the Company’s operations prior to the Closing, and (b) prior to the Closing, the Company’s management shall exercise, consistent with the terms and conditions of this Agreement and applicable Law, complete control and supervision over the Company’s operations.

Operating Covenants. Buyer shall have The Company agrees that, from the right to operate date of this Agreement until the business earlier of the Company Closing or the valid termination of this Agreement in accordance with Section 10.1, except as (i) set forth on Schedule 7.7(a), (ii) required by applicable Law (including COVID-19 Measures), (iii) expressly required or contemplated by this Agreement (including the BusinessPre-Closing Restructuring) in or (iv) otherwise with the manner it deems appropriate and has no obligation to operate the business prior written consent of the Company Buyer (including the Business) to maximize the Earnout Amount. Buyer will have the right to make any business decisions relating to the Companywhich consent shall not be unreasonably withheld, including capital expenditures, distribution arrangements, procurement decisions, pricing of products and services and compensation of employees, that Buyer in good faith determines is in the best interest of the Company, its Affiliates and their stockholders. Notwithstanding the foregoing provisions of this Section 1(jconditioned or delayed), Buyer agrees that it will not take any action with respect to the Business or the Company, the purpose of which is to minimize the Earnout Amount. In addition, during the Earnout Period, Buyer Company shall, and shall cause each Subsidiary of the Company to, act in good faith and use commercially reasonable efforts to: (i) allow representatives designated by Seller to (Ax) review and retain copies operate its business in all material respects in the ordinary course of all books and records, documents and work papers related to such operationsbusiness, (By) interview preserve intact its current business organization, keep available the services of its current officers and senior management of and material contractors and maintain its relations and goodwill with all material suppliers, customers and other Persons having material business relationships with the Company and or any of its Affiliates as reasonably requested and (C) discuss such operations with a representative designated by BuyerSubsidiary; provided, however, that no action by the Company or any such review or discussion of its Subsidiaries with respect to matters specifically addressed by any provision of clause (z) shall be done deemed a breach of the covenants contained in clauses (x) or (y) unless such action would constitute a manner so as breach of such specific provision of clause (z); provided, further, that the failure of the Company to take any action prohibited by any clause of clause (z) shall not be deemed to be a breach of the covenants contained in this sentence; and (z) not take any actions set forth below: (i) (A) make distributions (other than cash distributions necessary to cause Closing Cash not to unreasonably interfere with exceed the normal conduct maximum thereof as contemplated by the definition of Buyer’s Closing Cash), (B) pay any expense or other liability outside the Company’s ordinary course of business or (C) engage in any intercompany transactions between Company and any of its Subsidiary, other than in the ordinary course of business; (ii) cause increase the Company compensation or benefits of, grant any new right to remain severance or termination pay to, any present or former director, officer, employee or consultant of the Company, or loan or advance any money or other property to any present or former director, officer, employee or consultant of the Company. other than increases in material compliance compensation in the ordinary course of business consistent with all applicable Lawspast practice; (iii) operate directly or indirectly sell, assign, license, transfer, convey, lease, abandon, let lapse or enter the business and maintain adequate records public domain or otherwise dispose of any of the material properties or assets of the Company or any of its Subsidiaries, encumber or subject to any Lien or allow or suffer to be encumbered any of the material properties or assets of the Company or any of its Subsidiaries, in a manner each case, whether tangible or intangible and other than in the ordinary course of business or any such Lien or encumbrance that will allow EBITDA to be calculated on a stand alone basis separate from the operations released as of Buyer and its other AffiliatesClosing; (iv) refer (cancel or cause to be referred) compromise any material debt or material claim or waive or release any material right of the Company or any of its Subsidiaries, accelerate or delay collection of notes or accounts receivable that are material to the Company all new projects and contracts in advance of Buyer and its Subsidiaries or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business or delay or accelerate payment of any account payable that relate is material to the Business as conducted by Company in advance of its due date or the Companies on date such Liability would have been paid in the Closing Dateordinary course of business; (v) not divert enter into commitments for capital expenditures of the Company or direct to any of Buyer’s other Affiliates customer projects, sales or orders its Subsidiaries in excess of $500,000 for all commitments in the aggregate (excluding any such commitment that relate will only be effective and binding in the event that this Agreement is validly terminated pursuant to the Business as conducted by the Companies on the Closing DateArticle X hereof); (vi) not change other than in the Company’s fiscal year ordinary course of business, amend or accounting policies until its obligations under this Section 1 have been satisfied, unless required by GAAP terminate or otherwise agreed give notice to by Buyer and Seller; andterminate any Material Contract; (vii) from the Effective Date until the end enter into, modify, or ratify any collective bargaining, labor or similar Contract; (viii) modify in any material respect any of the Earnout PeriodFCC Licenses; (ix) make a material change in financial or tax accounting principles, methods, policies or practices, except as required or permitted by GAAP; (x) make, revoke or change any material election with respect to Taxes (including U.S. federal, state, local and foreign Tax entity classification statuses), settle or compromise any Tax audit, claim, or assessment or any liability for material Taxes, file any material amendment to a Tax Return, enter into any material closing agreement or obtain any material Tax ruling or seek to change any material Tax accounting period, surrender any right to claim a refund of material Taxes, consent to any extension or waiver with respect to any material Tax claim, assessment, or liability, or prepare or file any Tax Return in a manner inconsistent with past practice in a material respect; (xi) (A) grant to any Person any license, sublicense, covenant not to s▇▇, immunity, authorization, consent, release, waiver or other right with respect to any Intellectual Property (other than non-exclusive licenses sublicenses or options granted to customers of the Company) or (B) abandon, let lapse or enter the public domain, sell, assign, transfer or convey to any Person any rights to any Intellectual Property, in each case of (A) and (B), other than in the ordinary course of business or relating to expiration of the Intellectual Property in accordance with applicable statutory terms; (xii) enter into any Contract which contains an obligation to maintain the Company as operations of a separate subsidiary Station for a certain period of Buyer time or one to meet minimum funding or content requirements for a Station (or counterparty termination rights in the event such minimums or requirements are not met); (xiii) cause or permit, or agree or commit to cause or permit, by act or failure to act, any of the FCC Licenses to expire or to be revoked, suspended or adversely modified, or take or fail to take any action that would cause the FCC or any other Governmental Authority to institute proceedings for the suspension, revocation or adverse modification of any of the FCC Licenses identified in Schedule 5.20; (xiv) enter into or amend, modify or terminate any Lease; (xv) enter into or amend, modify or terminate any Contract with L▇▇▇▇▇▇▇ Media Group LLC or any of its Affiliates; or (xvi) agree, in writing or otherwise, to take any of the foregoing actions, or take any action. provided that, nothing contained in this Agreement shall (A) give the Buyer the right to control or direct the operations of the Company or its Subsidiary; or (B) prohibit or restrict the Company or its Subsidiaries’ ability to take or not take any action in response to COVID-19 (including any COVID-19 Measures). Notwithstanding anything to the contrary in this Agreement, any COVID-19 Measure taken, or omitted to be taken, by any of the Company or its Subsidiaries and not dissolve in good faith pursuant to any applicable Law or liquidate the Companyany other directive, pronouncement or guideline issued by a Governmental Authority providing for business closures, “sheltering-in-place” or other similar restrictions that relate to or arise out of COVID-19 shall in no event be deemed to constitute a breach of this Section 7.7(a).

Operating Covenants. Buyer shall have Pursuant to the right to operate Merger Agreement, from the business date of the Company Merger Agreement until the earlier of the Offer Acceptance Time and the termination of the Merger Agreement pursuant to its terms (including the Business“Pre-Closing Period”), except as (a) required or otherwise contemplated under the Merger Agreement, (b) required by applicable law, (c) required to be taken, or omitted to be taken, pursuant to the COVID-19 Measures, (d) undertaken with the prior written consent of Amgen (which consent will not be unreasonably withheld, conditioned or delayed), or (e) as set forth in the manner it deems appropriate confidential disclosure letter that Five Prime delivered to Amgen and has no obligation to operate Purchaser in connection with the business execution of the Company Merger Agreement, Five Prime will use its commercially reasonable efforts to (including x) conduct in all material respects its business and operations in the Businessordinary course and (y) to maximize preserve intact the Earnout Amount. Buyer will have the right to make any material components of its current business decisions relating to the Companyorganization, including capital expendituresby maintaining its relations and goodwill with all material suppliers, distribution arrangementsmaterial customers, procurement decisions, pricing of products Governmental Bodies and services and compensation of employees, that Buyer in good faith determines is in the best interest of the Company, its Affiliates and their stockholders. Notwithstanding the foregoing provisions of this Section 1(j), Buyer agrees that it will not take any action with respect to the Business or the Company, the purpose of which is to minimize the Earnout Amountother material business relations. In addition, during the Earnout Pre-Closing Period, Buyer shall, and shall cause except as (a) required or contemplated under the Company to, act in good faith and use commercially reasonable efforts to: (i) allow representatives designated by Seller to (A) review and retain copies of all books and records, documents and work papers related to such operationsMerger Agreement, (Bb) interview management required by applicable laws, (c) required to be taken, or omitted to be taken, pursuant to the COVID-19 Table of Contents Measures, (d) undertaken with the prior written consent of Amgen (which consent will not be unreasonably withheld, conditioned or delayed), or (e) as set forth in the confidential disclosure letter that Five Prime delivered to Amgen and Purchaser in connection with the execution of the Company Merger Agreement, Five Prime will not, subject to certain exceptions: • amend or permit the adoption of any amendment to its certificate of incorporation and bylaws; • establish a record date for, declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of its Affiliates capital stock (including the Shares); • repurchase, redeem or otherwise reacquire any of its shares of capital stock (including any Shares), or any rights, warrants or options to acquire any shares of its capital stock, other than: (a) repurchases or reacquisitions of Shares outstanding as reasonably requested of the date of the Merger Agreement pursuant to Five Prime’s right to purchase or reacquire Shares held by a director, officer, consultant, independent contractor or other employee of Five Prime (a “Five Prime Associate”) upon termination of such individual’s employment or engagement by Five Prime; (b) repurchases of Five Prime’s stock awards (or shares of capital stock issued upon the exercise or vesting thereof) outstanding on the date of the Merger Agreement (in cancellation thereof) pursuant to the terms of any such stock award (in effect as of the date of the Merger Agreement) between Five Prime and a Five Prime Associate only upon termination of such individual’s employment or engagement by Five Prime; or (c) in connection with withholding to satisfy the exercise price or tax obligations with respect to Five Prime’s stock awards; • split, combine, subdivide or reclassify any Shares or other equity interests; • issue, sell, grant, deliver, pledge, transfer, encumber or authorize the issuance, sale, grant delivery, pledge, transfer or encumbrance (other than pursuant to agreements in effect as of the date of the Merger Agreement) of (a) any capital stock, equity interest or other security of Five Prime, (b) any option, call, warrant, restricted securities or right to acquire any capital stock, equity interest or other security of Five Prime, or (c) any instrument convertible into or exchangeable for any capital stock, equity interest or other security of Five Prime, except that (x) Five Prime may issue Shares as required to be issued upon the exercise of Five Prime’s options or the vesting of Five Prime’s stock awards and (Cy) discuss Five Prime may issue stock awards to new employees who were offered such operations with awards as part of offer letters that were executed prior to the date of the Merger Agreement; • except as contemplated by the Merger Agreement, establish, adopt, terminate or amend any Five Prime employee benefit plan (or any plan, program, arrangement, practice or agreement that would be a representative designated Five Prime employee benefit plan if it were in existence on the date of the Merger Agreement), or amend or waive any of its rights under, or accelerate the vesting under, any provision of any Five Prime employee benefit plan (or any plan, program, arrangement, practice or agreement that would be a Five Prime employee benefit plan if it were in existence on the date of the Merger Agreement) or grant any employee or director of Five Prime any award or increase in compensation, bonuses or other benefits, except that Five Prime may (a) amend any Five Prime employee benefit plan to the extent required by Buyerapplicable laws; provided, however, that any such review and (b) make annual or discussion shall be done quarterly bonus or commission payments based on actual performance for completed performance periods in such a manner so as not to unreasonably interfere the ordinary course of business in accordance with the normal conduct of Buyer’s bonus or commission plans existing on the Company’s business; (ii) cause the Company to remain in material compliance with all applicable Laws; (iii) operate the business and maintain adequate records date of the Company in a manner that will allow EBITDA to be calculated on a stand alone basis separate from the operations of Buyer and its other AffiliatesMerger Agreement; (iv) refer (or cause to be referred) to the Company all new projects and contracts of Buyer and its Subsidiaries that relate to the Business as conducted by the Companies on the Closing Date; (v) not divert or direct to any of Buyer’s other Affiliates customer projects, sales or orders that relate to the Business as conducted by the Companies on the Closing Date; (vi) not change the Company’s fiscal year or accounting policies until its obligations under this Section 1 have been satisfied, unless required by GAAP or otherwise agreed to by Buyer and Seller; and (vii) from the Effective Date until the end of the Earnout Period, maintain the Company as a separate subsidiary of Buyer or one of its Subsidiaries and not dissolve or liquidate the Company.

Operating Covenants. Buyer shall have a. During the right to operate the business Term of the Company (including the Business) in the manner it deems appropriate and has no obligation to operate the business of the Company (including the Business) to maximize the Earnout Amount. Buyer will have the right to make any business decisions relating to the Companythis Agreement, including capital expenditures, distribution arrangements, procurement decisions, pricing of products and services and compensation of employees, that Buyer in good faith determines is in the best interest of the Company, its Affiliates Owner and their stockholders. Notwithstanding Affiliates, collectively, shall employ, or cause to be employed, not fewer than one hundred fifty (150) full-time or full time equivalent employees at the foregoing provisions of this Section 1(j), Buyer agrees that it will not take any action with respect to Approved Business within the Business or the Company, the purpose of which is to minimize the Earnout Amount. In addition, during the Earnout Period, Buyer shall, and shall cause the Company to, act in good faith and use commercially reasonable efforts to: (i) allow representatives designated by Seller to (A) review and retain copies of all books and records, documents and work papers related to such operations, (B) interview management of the Company and its Affiliates as reasonably requested and (C) discuss such operations with a representative designated by BuyerCity; provided, however, that any such review Owner and their Affiliates, collectively, may employ less than one hundred fifty (150) full-time employees with the written consent of the City Manager, which shall not be unreasonably withheld or discussion delayed. For purposes of the preceding sentence, and by way of illustration and not limitation, it shall be done in deemed reasonable for less than one hundred fifty (150) full-time employees to be employed when economic conditions beyond the control of the Owner or any of its Affiliates prevent such a manner so as not to unreasonably interfere with level of employment. b. SCOC covenants and agrees, for itself and its successors and assigns, that, during the normal conduct Term of Buyer’s or the Company’s business; (ii) cause the Company to remain in material compliance this Agreement, consistent with all applicable Laws; (iii) provisions of any laws, SCOC shall retain and operate on the Site SCOC’s business of selling refined petroleum products and maintain adequate records related Sales Tax-generating products. SCOC covenants and agrees, for itself and its successor and assigns, that it shall not designate any other location other than the Site as the point of sale for refined petroleum products and related Sales Tax-generating products sold on the Company Site to the extent not in conflict with any applicable law, including, without limitation, Government Code Section 53084.5. In addition, SCOC shall use its best efforts to operate its business in a manner that will allow EBITDA commercially reasonable and prudent manner. SCOC’s obligations pursuant to be calculated on a stand alone basis separate from the operations of Buyer and immediately preceding sentence include, without limitation, the obligation to use its other Affiliates; (iv) refer (best efforts to obtain or cause to be referred) obtained all federal, state and local licenses and permits required for the operation of any business. c. SCOC and Orange Katella each covenants and agrees, for itself and its successors and assigns, that during the Term of this Agreement, that SCOC and Orange Katella shall not, in any of their names or in the name of any Affiliate of any of them, directly or indirectly solicit or accept any direct or indirect “Financial Assistance” from any other government or any other public or private Person, if such Financial Assistance is given for the purpose of causing or would result in SCOC’s and/or Orange Katella’s breach of any of the covenants or terms and conditions of this Agreement and/or would cause or facilitate the relocation of any Approved Business operating on the Site or in the City of Orange and/or the designation as the City of Orange as the point of sale for any Approved Business that is contrary to the Company all new projects and contracts point of Buyer and its Subsidiaries that relate to sale provisions in subsection b. above. For purposes of this Section, the Business as conducted by the Companies on the Closing Date; (v) not divert term “Financial Assistance” means any direct or direct to any indirect payment, subsidy, rebate, or other similar or dissimilar monetary or non-monetary benefit, including, without limitation, payment of Buyer’s other Affiliates customer projectsland subsidies, relocation expenses, public financings, property or sales tax relief, rebates, and/or exemptions or orders that relate to the Business as conducted by the Companies on the Closing Date; (vi) not change the Company’s fiscal year or accounting policies until its obligations under this Section 1 have been satisfied, unless required by GAAP or otherwise agreed to by Buyer and Seller; and (vii) from the Effective Date until the end of the Earnout Period, maintain the Company as a separate subsidiary of Buyer or one of its Subsidiaries and not dissolve or liquidate the Companycredits.