Common use of Conduct of Business by CTI Pending the Closing Clause in Contracts

Conduct of Business by CTI Pending the Closing. Except for matters set forth in Section 5.2 of the CTI Disclosure Schedule or otherwise contemplated by this Agreement (or as required by applicable Law or regulatory organization applicable to CTI), from the date of this Agreement to the Effective Time, CTI shall (i) conduct its business in the ordinary course of business consistent with past practice, and (ii) use commercially reasonable efforts to preserve intact its business organization and goodwill, keep available the services of its present officers, key employees and key independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with them. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 5.2 of the CTI Disclosure Schedule or otherwise contemplated by this Agreement, from the date of this Agreement to the Effective Time, CTI shall not (unless required by applicable Law or regulatory organization applicable to CTI) do any of the following without the prior written consent of NICOYA, which consent shall not be unreasonably withheld or delayed: (i) except as deemed necessary to effectuate the filing of the Surviving Corporation A&R Certificate of Incorporation and adoption of the Surviving Corporation Bylaws, amend or propose to amend CTI’s Current Certificate of Incorporation or Bylaws or similar governing documents, (ii) split, combine or reclassify its outstanding capital stock or issue or authorize the issuance of any other security in respect or, in lieu of, or in substitution for, shares of its capital stock, (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise, (iv) merge or consolidate with any Person, or (v) enter into any agreement with respect to the voting of its capital stock or other securities held by CTI; (b) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any shares of, or any options, warrants or rights of any kind to acquire any shares of, its capital stock of any class or any debt or equity securities convertible into or exchangeable for such capital stock, except with respect to exercises or conversion of currently outstanding options, warrants or convertible securities; (i) issue any debt securities, incur, guarantee or otherwise become contingently liable with respect to any indebtedness for borrowed money, or enter into any arrangement having the economic effect of any of the foregoing (other than in connection with accounts payable in the ordinary course of business consistent with past practice), (ii) make any loans, advances or capital contributions to, or investments in, any Person (other than in the ordinary course of business consistent with past practice), (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock other than in connection with the repurchase of shares from employees in connection with termination of employment contracts, (iv) make any material acquisition of any assets or businesses (including by merger, consolidation, acquisition of stock or assets, in-bound license transactions or otherwise), or (v) sell, pledge, assign, dispose of, transfer, lease, securitize or materially encumber any businesses or assets that are material to CTI (excluding CTI Intellectual Property, which is addressed in Section 5.2(d)); (d) (i) sell, pledge, assign, dispose of, transfer, securitize, lease or materially encumber any CTI Intellectual Property, (ii) exclusively license, abandon or fail to maintain any CTI Intellectual Property, (iii) grant, extend, amend (except as required in the diligent prosecution of the CTI Intellectual Property), waive or modify any rights in or to any CTI Intellectual Property, (iv) fail to diligently prosecute CTI’s patent applications, or (v) fail to exercise a right of renewal or extension under any CTI license; (e) (i) enter into any Contract or arrangement that reasonably may result in payments by or liabilities of CTI or which limits or otherwise restricts CTI or any of its Affiliates or any successor thereto from engaging or competing in any line of business or in any geographic area or which includes a “most favored nation” or “equally favored nation” or similar provision, (ii) vary its inventory practices in any material respect from its past practices, except as required by GAAP or by Law, or (iii) make any capital expenditure or expenditures (including leases and in-bound licenses) in the aggregate in excess of the aggregate amount set forth in CTI’s budgeted amounts set forth on Section 5.2(e) of the CTI Disclosure Schedule (other than capital expenditures for unbudgeted repairs and maintenance in the ordinary course of business consistent with past practice); (f) ▇▇▇▇▇, enter into or amend any employment, severance, change in control, special pay arrangement with respect to termination of employment or other similar arrangements or contract with any directors, officers or employees of CTI, except (i) as required pursuant to previously existing contracts, or policies between such current directors, officers or employees CTI, (ii) pursuant to employment agreements entered into with a Person who is not already an officer of CTI in the ordinary course of business and is hired or promoted by CTI after the date hereof in the ordinary course of business; (i) increase the salary, benefits or monetary compensation of any directors, executive officers or employees, or (ii) establish, adopt, enter into, or materially amend any, collective bargaining agreement or bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination or severance plan, arrangement, trust, fund, policy or agreement; (i) accelerate, amend or change the period of exercisability or vesting of options, restricted stock or similar awards under any CTI stock plan, or (ii) authorize cash payments in exchange for any options granted under any of such plans except as required by the terms of such plans or any related agreements in effect as of the date hereof; (i) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration; (j) adopt, enter into, or amend any CTI Employee Plan to materially increase the benefits or liabilities of any CTI Employee Plan or to accelerate the payment of benefits under any CTI Employee Plan, except as required pursuant to existing contracts or this Agreement; (k) change any method or principle of financial accounting in a manner that is inconsistent with past practice, except to the extent required by GAAP; (l) make any material Tax election or settle or compromise any material Tax liability or refund, or change any annual Tax accounting period or material method of Tax accounting, file any material amendment to a tax return, enter into any closing agreement relating to any material Tax, surrender any right to claim a material Tax refund, or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment, in each case, other than as required by Law; (m) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which CTI is a party and which relates to a business combination or other similar extraordinary transaction; (n) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger in ARTICLE VI not being satisfied; or (o) agree, authorize or otherwise to take any of the foregoing actions.