Common use of Conduct of the Business Pending the Merger Clause in Contracts

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, except as set forth in the Company Disclosure Schedule or, unless Buyer shall otherwise agree in advance, which consent shall not be unreasonably withheld and shall be subsequently confirmed in writing, (i) the businesses of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice (it being understood that the foregoing does not cover future events resulting from the public announcement of the Offer and the Merger), (ii) the Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, (iii) the Company will comply with all applicable laws and regulations wherever its business is conducted, including without limitation the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act, except where such noncompliance would not have a Material Adverse Effect on the Company, (iv) the Company shall not commit to any significant capital expenditures except those related to developing, constructing, permitting, equipping and opening the five planned restaurants identified on the Company Disclosure Schedule, and (iv) the Company shall not enter into any new franchise agreement.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the earlier of the Effective Time, except as set forth Time or the termination of this Agreement in the Company Disclosure Schedule oraccordance with Section 8.1, unless Buyer Parent shall otherwise expressly agree in advance, writing (which consent request shall not be unreasonably withheld and shall be subsequently confirmed in writing, or delayed): (i) the businesses business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice (it being understood that the foregoing does not cover future events resulting from the public announcement of the Offer and the Merger), practice; (ii) the Company and its Subsidiaries shall use all commercially its reasonable best efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers suppliers, distributors and other persons with which the Company or its Subsidiaries has significant material business relations, ; (iii) the Company and its Subsidiaries will comply in all material respects with all Material Contracts and applicable laws Laws and regulations wherever its business is conducted, including including, without limitation limitation, the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act, except where such noncompliance would not have a Material Adverse Effect on the Company, (iv) the Company shall not commit to any significant capital expenditures except those related to developing, constructing, permitting, equipping and opening the five planned restaurants identified on the Company Disclosure Schedule, ; and (iv) the Company and its Subsidiaries shall not enter into cause to be provided all notices, assurances and support required by any new franchise agreementMaterial Contract relating to any Company Intellectual Property in order to ensure that no condition under such Material Contract occurs that could result in, or could increase the likelihood of, (A) any transfer or disclosure by the Company of any computer source code owned or licensed by the Company and included among the Company’s Intellectual Property (“Company Source Code”) or (B) a release from any escrow of any Company Source Code that has been deposited or is required to be deposited in escrow under the terms of any Material Contract.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that that, except for actions taken to implement this Agreement and the transactions contemplated hereby and except as set forth in the Company Disclosure Letter, between the date of this Agreement and the Effective Time, except as set forth in the Company Disclosure Schedule or, unless Buyer Parent shall otherwise agree in advance, which consent shall not be unreasonably withheld and shall be subsequently confirmed in writing, (i) the businesses business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice (it being understood that the foregoing does not cover future events resulting from the public announcement of the Offer and the Merger)practice, (ii) the Company and its Subsidiaries shall use all commercially reasonable efforts to maintain and protect the FCC Licenses and Channel Leases, to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, (iii) the Company and its Subsidiaries shall use all commercially reasonable efforts on a basis consistent with past practice to continue to provide wireless cable television services to the Company's subscriber base and (iv) the Company will comply in all material respects with all applicable laws Laws and regulations wherever its business is conducted, including including, without limitation limitation, the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that, except where such noncompliance would not have for actions taken to implement this Agreement and the transactions contemplated hereby, between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) declare or pay any dividends on or make other distributions (whether in cash, stock or property) in respect of any of its capital stock, except for dividends by a Material Adverse Effect on wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company, (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (iii) except as set forth in the Company Disclosure Letter, repurchase or otherwise acquire any shares of its capital stock, (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any securities convertible into any such shares of its capital stock, or any rights, warrants or options to acquire any such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other than the issuance of shares of Company Common Stock upon the exercise of Company Options or Company Warrants outstanding as of the date of this Agreement, (v) willfully take any action that would make the Company's representations and warranties set forth in Article III not true and correct in all material respects, or (vi) take any action that would, or could reasonably be expected to, result in any of the conditions set forth in Article VI not being satisfied. (c) The Company covenants and agrees that, except for actions taken to implement this Agreement and the transactions contemplated hereby, between the date of this Agreement and the Effective Time, the Company shall not commit to not, nor shall the Company permit any significant capital expenditures of its Subsidiaries to, (i) amend its certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) except those related to developing, constructing, permitting, equipping and opening the five planned restaurants identified on as set forth in the Company Disclosure ScheduleLetter, incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries (other than loans or advances less than $50,000 made in the ordinary course of business consistent with past practice); (iv) except as set forth in the Company shall not Disclosure Letter, merge or consolidate with any other entity in any transaction, or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $100,000 or greater; (v) change its accounting policies except as required by GAAP; (vi) make any change in employment terms for any of its directors or officers; (vii) alter, amend or create any obligations with respect to compensation, severance, benefits, change of control payments or any other payments to employees, directors or affiliates of the Company or its Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) make any change to the Company Benefit Plans; (ix) enter into any new franchise agreement.leasing or licensing agreements, take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses, provided, the Company may renegotiate any Channel Leases in the ordinary course of business; or (x) commit or agree to take any of the actions described in this Section 5.1. Section 5.2

Conduct of the Business Pending the Merger. Between the date of this Agreement and the Effective Time (ai) The the Company covenants shall, and agrees that shall cause the Company Subsidiaries to, conduct the businesses of the Company and the Company Subsidiaries only in the ordinary course of business and in a manner consistent with past practice and in compliance in all material respects with all applicable Laws; (ii) the Company shall use commercially reasonable efforts to preserve substantially intact the business organization of the Company and the Company Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with its customers, suppliers, distributors, licensors, licensees and other persons with which the Company or any of the Company Subsidiaries has business relations; (iii) the Company shall take all necessary actions to cause its required periodic filings to be made with the SEC in a timely manner, including its Quarterly Report on Form 10-Q for the calendar quarter ending March 31, 2015; and (iv) the Company shall not, and shall cause the Company Subsidiaries not to, take any action with an intent to adversely affect or delay in any material respect the ability of either Parent or the Company to obtain any necessary approvals of any regulatory agency or other Governmental Authority required for the Transactions. In addition, and not in limitation of the foregoing, except as (x) expressly contemplated by this Agreement, (y) set forth in Section 6.1 of the Disclosure Schedule or (z) as required in compliance with all applicable Laws, neither the Company nor any of the Company Subsidiaries shall, between the date of this Agreement and the Effective Time, except as set forth in directly or indirectly, do, or propose to do, any of the Company Disclosure Schedule or, unless Buyer shall otherwise agree in advance, following without the prior written consent of Parent (which consent shall not be unreasonably withheld and shall be subsequently confirmed in writingwithheld, (i) the businesses of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice (it being understood that the foregoing does not cover future events resulting from the public announcement of the Offer and the Merger), (ii) the Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company delayed or its Subsidiaries has significant business relations, (iii) the Company will comply with all applicable laws and regulations wherever its business is conducted, including without limitation the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act, except where such noncompliance would not have a Material Adverse Effect on the Company, (iv) the Company shall not commit to any significant capital expenditures except those related to developing, constructing, permitting, equipping and opening the five planned restaurants identified on the Company Disclosure Schedule, and (iv) the Company shall not enter into any new franchise agreement.conditioned):

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the earlier of the Effective Time, except as set forth Time or the termination of this Agreement in the Company Disclosure Schedule oraccordance with SECTION 8.1, unless Buyer Parent shall otherwise expressly agree in advance, writing (which consent request shall not be unreasonably withheld and shall be subsequently confirmed in writing, or delayed): (i) the businesses business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice (it being understood that the foregoing does not cover future events resulting from the public announcement of the Offer and the Merger), practice; (ii) the Company and its Subsidiaries shall use all commercially its reasonable best efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers suppliers, distributors and other persons with which the Company or its Subsidiaries has significant material business relations, ; (iii) the Company and its Subsidiaries will comply in all material respects with all Material Contracts and applicable laws Laws and regulations wherever its business is conducted, including including, without limitation limitation, the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act, except where such noncompliance would not have a Material Adverse Effect on the Company, (iv) the Company shall not commit to any significant capital expenditures except those related to developing, constructing, permitting, equipping and opening the five planned restaurants identified on the Company Disclosure Schedule, ; and (iv) the Company and its Subsidiaries shall not enter into cause to be provided all notices, assurances and support required by any new franchise agreementMaterial Contract relating to any Company Intellectual Property in order to ensure that no condition under such Material Contract occurs that could result in, or could increase the likelihood of, (A) any transfer or disclosure by the Company of any computer source code owned or licensed by the Company and included among the Company's Intellectual Property ("COMPANY SOURCE CODE") or (B) a release from any escrow of any Company Source Code that has been deposited or is required to be deposited in escrow under the terms of any Material Contract.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, except as set forth in the Company Disclosure Schedule or, unless Buyer shall otherwise agree in advance, without Parent's prior written consent (which consent or denial shall not be unreasonably withheld delayed) and shall be subsequently confirmed in writingexcept as otherwise contemplated or authorized by this Agreement, (i) the businesses business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice (it being understood that the foregoing does not cover future events resulting from the public announcement of the Offer and the Merger), practice; (ii) the Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant material business relations, ; (iii) the Company and its Subsidiaries will comply in all material respects with all applicable laws Laws and regulations wherever its business is conducted, including including, without limitation limitation, the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act, except where such noncompliance would not have a Material Adverse Effect on the Company, ; (iv) the Company shall will not commit take any action or fail to take any significant action, the taking of which or the failure of which to take would have, either individually or in the aggregate, a material adverse impact on the assets or financial condition of the Company as reflected on the balance sheet of the Company as of September 30, 2001 (disregarding, for purposes of this Section 5.1(a)(iv), any such adverse impact resulting from seasonal trends or changes in the economy or the hotel industry generally and any other adverse effect that would be disregarded for purposes of determining whether a Company Material Adverse Effect has occurred pursuant to the definition thereof set forth in Section 8.11(b) hereof); (v) the Company will continue to operate its properties (including by expending money for repairs, maintenance and replacements) in a manner consistent with the operating and capital expenditures except those related to developingbudgets of the Company for 2002, constructing, permitting, equipping complete and opening the five planned restaurants identified on accurate copies of which are included in Section 5.1(a) of the Company Disclosure Schedule, Letter; and (ivvi) the Company shall not enter into any new franchise agreementwill continue to make adequate reserves on its balance sheet for Tax liabilities that accrue through the Closing Date consistent with the past custom and practice of the Company and its Subsidiaries in filing their Tax Returns.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between 4.1 Conduct of Business of the date of this Agreement and the Effective Time, except Company. Except as set forth on Schedule 4.1 or as otherwise expressly permitted by this Agreement or as Parent may otherwise consent to or approve in the Company Disclosure Schedule or, unless Buyer shall otherwise agree in advancewriting, which consent shall not be unreasonably withheld or delayed (it being understood and agreed that a delay of two (2) Business Days or less shall not be subsequently confirmed in writingdeemed unreasonable) on and after the date hereof and prior to the Effective Time, (i) the businesses of the Company and its Subsidiaries shall be conducted only inoperate in the Ordinary Course of Business and, and to the Company and its Subsidiaries shall not take any action except inextent consistent therewith, the ordinary course of business and in a manner use commercially reasonable efforts consistent with prior practice prudent business practices to (it being understood that the foregoing does not cover future events resulting from the public announcement of the Offer and the Merger)i) preserve intact its current business organization in all material respects, (ii) the Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their its current officers and other key employees and (iii) preserve its relationships with those Persons having business dealings with it, including vendors and customers. Furthermore, the Company covenants that, from and after the date hereof, unless Parent shall otherwise expressly consent in writing, which consent shall not be unreasonably withheld or delayed (it being understood and agreed that a delay of two (2) Business Days or less shall not be deemed unreasonable), the Company and each of its Subsidiaries shall use its commercially reasonable efforts to: (x) keep in full force and effect insurance comparable in amount and scope of coverage to preserve insurance now carried by it, (y) follow its currently contemplated Project installation schedule as reflected in the current relationships business plan of the Company delivered to Parent under cover of letter dated October 21, 2009 (the “Business Plan”) and (z) pay all accounts payable and other obligations in the Ordinary Course of Business consistent with the provisions of this Agreement, except if the same are contested in good faith, and, in the case of the failure to pay any material accounts payable or other obligations which are contested in good faith, only after consultation with Parent. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Effective Time, neither the Company nor any of its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, (iii) the Company will comply with all applicable laws and regulations wherever its business is conducted, including without limitation the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act, except where such noncompliance would not have a Material Adverse Effect on the Company, (iv) the Company shall not commit to any significant capital expenditures except those related to developing, constructing, permitting, equipping and opening the five planned restaurants identified on the Company Disclosure Schedule, and (iv) the Company shall not enter into any new franchise agreement.shall:

Conduct of the Business Pending the Merger. Between the date of this Agreement and the earlier of (a1) The the Effective Time and (2) the date upon which Purchaser’s designees constitute a majority of the members on the Company covenants Board pursuant to Section 7.3 (the “Control Date”), (i) the Company shall, and agrees shall cause the Company Subsidiaries to, conduct the businesses of the Company and the Company Subsidiaries only in the ordinary course of business and in a manner consistent with past practice and in compliance in all material respects with all applicable Laws; (ii) the Company shall use reasonable best efforts to preserve substantially intact the business organization of the Company and the Company Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with its customers, suppliers, distributors, licensors, licensees and other persons with which the Company or any of the Company Subsidiaries has business relations; (iii) the Company shall, and shall cause the Company Subsidiaries to, maintain the Company Owned Real Property and Company Leased Real Property in substantially the same condition as the same exist on the date of this Agreement (reasonable wear and tear excepted), (iv) upon reasonable request by Purchaser, the Company shall, or shall cause the Company Subsidiaries to, deliver any written notice necessary to exercise a renewal option with respect to those leases of Company Leased Real Property that require that such notice of renewal be delivered prior to the Effective Time, and (v) the Company shall not, and shall cause the Company Subsidiaries not to, take any action that would adversely affect or delay in any material respect the ability of either Parent or the Company to obtain any necessary approvals of any regulatory agency or other Governmental Authority required for the Transactions. In addition, and not in limitation of the foregoing, except as (x) expressly contemplated by this Agreement, (y) set forth in Section 6.1 of the Disclosure Schedule or (z) as required in compliance with all applicable Laws, neither the Company nor any of the Company Subsidiaries shall, between the date of this Agreement and the Effective Time, except as set forth in directly or indirectly, do, or propose to do, any of the Company Disclosure Schedule or, unless Buyer shall otherwise agree in advance, following without the prior written consent of Parent (which consent shall not be unreasonably withheld and shall be subsequently confirmed in writing, (i) the businesses of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice (it being understood that the foregoing does not cover future events resulting from the public announcement of the Offer and the Merger), (ii) the Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, (iii) the Company will comply with all applicable laws and regulations wherever its business is conducted, including without limitation the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act, except where such noncompliance would not have a Material Adverse Effect on the Company, (iv) the Company shall not commit to any significant capital expenditures except those related to developing, constructing, permitting, equipping and opening the five planned restaurants identified on the Company Disclosure Schedule, and (iv) the Company shall not enter into any new franchise agreement.delayed):