Common use of Conduct Prior to the Effective Time Clause in Contracts

Conduct Prior to the Effective Time. 5.1 Conduct of Business by Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and Parent. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and Parent shall cause the Company to and the Company shall, except to the extent that Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed), carry on its business, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. In addition, except as permitted by the terms of this Agreement, and the transactions contemplated hereby, without the prior written consent of Purchaser, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, neither Indirect Parent, Second Intermediary Parent, First Intermediary Parent nor Parent shall permit the Company to, and Company shall not do any of the following:

Conduct Prior to the Effective Time. 5.1 4.1 Conduct of Business by of the Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and Parent. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and Parent shall cause the Company to and the Company shall, except to the extent that Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed), carry on its business, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. In addition, except as permitted by the terms of this Agreement, and the transactions contemplated hereby, without the prior written consent of Purchaser, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or and the Effective Time, neither Indirect Parentthe Company (which for the purposes of this Section 4.1 shall include the Company and each of its subsidiaries) agrees, Second Intermediary Parent, First Intermediary Parent nor except to the extent that Parent shall permit otherwise consent in writing, to carry on its business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance in all material respects with all applicable laws and regulations, to pay its debts and Taxes when due subject to good faith disputes over such debts or Taxes, to pay or perform other material obligations when due, and to use all reasonable efforts consistent with past practices and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with the Company, to the end that the Company's goodwill and ongoing businesses shall not be impaired in any material respect at the Effective Time. "Ordinary course" is deemed to intrinsically include full compliance with the short-term cost reduction plan delivered by the Company toto Parent on or before the date of this Agreement. The Company shall promptly notify Parent of any event or occurrence not in the ordinary course of business of the Company, and will not enter into or amend any agreement or take any action which reasonably would be expected to have a Material Adverse Effect on the Company. Except as expressly contemplated by this Agreement or in compliance with Section 5.4(a), the Company shall not do any prior to the Effective Time or earlier termination of this Agreement pursuant to its terms, without the followingprior written consent of Parent's Chief Executive Officer:

Conduct Prior to the Effective Time. 5.1 4.1 Conduct of Business by of the Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and Parent. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and Parent shall cause the Company to and the Company shallagrees, except unless otherwise required pursuant to the extent that Purchaser shall otherwise express terms of this Agreement or if Parent has given its prior consent in writing (which consent shall not be unreasonably withheld or delayedwithheld), to carry on on, and to cause each Company Subsidiary to carry on, its business, business in the usual, regular and ordinary coursecourse of business, in substantially the same manner as heretofore conducted to pay, and in compliance with all applicable laws to cause each Company Subsidiary to pay, its Liabilities and regulations, pay its debts and taxes Taxes when due subject in the usual, regular and ordinary course of business, to good faith disputes over such debts or taxes, pay or perform and to cause each Company Subsidiary to pay or perform its other material obligations when duedue in the usual, regular and ordinary course of business (other than Liabilities, Taxes and other obligations, if any, contested in good faith through appropriate proceedings), and use its commercially to use, and to cause each Company Subsidiary to use, reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and key employees and (iii) preserve its relationships with customerskey providers, subscribers, suppliers, distributors, licensors, licensees, independent contractors and others other Persons having business dealings with which it has significant the Company and/or the Company Subsidiaries, and maintain the Company's and the Company Subsidiaries' respective Permits and Approvals, all with the express purpose and intent of preserving unimpaired the Company's and each Company Subsidiary's goodwill and ongoing business dealingsthrough the Effective Time. In addition, except Except as otherwise expressly permitted by the terms of this Agreement, and neither the transactions contemplated herebyCompany nor either Company Subsidiary shall, without the prior written consent of PurchaserParent (which consent shall not be unreasonably withheld), take or agree in writing or otherwise to take any action that would make any of the Company's representations or warranties contained in this Agreement to be untrue or incorrect or prevent the Company from performing, or cause the Company not to perform, its agreements and covenants hereunder or knowingly cause any condition to Parent's closing obligations in Section 7.1 or Section 7.3 not to be satisfied. Without limiting the generality of the foregoing, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except as required or expressly permitted by this Agreement, neither Indirect Parent, Second Intermediary Parent, First Intermediary Parent nor Parent shall permit the Company to, and nor any Company Subsidiary shall not do cause or permit any of the following:following with respect to the Company or any Company Subsidiary, without the prior written consent of Parent (which consent shall (i) not be unreasonably withheld, except in the case of those matters set forth in subsections (e) and (v) below, with respect to which Parent may grant or deny consent in its sole and absolute discretion, and (ii) be granted as promptly as reasonably practicable, and in any event within two Business Days, or such shorter period as may be warranted due to exigent circumstances):

Conduct Prior to the Effective Time. 5.1 4.1 Conduct of Business by of the Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and Parent. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or and the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and the Company agrees (unless the Company is required to take such action pursuant to this Agreement or Parent shall cause the Company to and the Company shall, except to the extent that Purchaser shall otherwise give its prior consent in writing (which consent shall not be unreasonably withheld or delayed), withheld) to carry on its business in the Company's Ordinary Course of Business and in any event substantially consistent with the Operating Plan provided prior to the date of this Agreement to Parent; any material deviations from, or material modifications to, the Operating Plan shall be required to be approved in advance by Parent), to pay its Liabilities and Taxes consistent with the Company's Ordinary Course of Business, to perform other obligations when due consistent with the Company's Ordinary Course of Business (other than Liabilities, Taxes and other obligations, if any, contested in good faith through appropriate proceedings or as set forth in Section 4.1 of the Company Disclosure Schedule), and, to the extent consistent with such business, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance with to use all applicable laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and institute all policies reasonably required to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and key employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, independent contractors and others other Persons having business dealings with which it has significant business dealingsit, all with the express purpose and intent of preserving unimpaired its goodwill and ongoing businesses at the Effective Time. In addition, except Except as permitted expressly contemplated by the terms of this Agreement, and the transactions contemplated herebyCompany shall not, without the prior written consent of PurchaserParent, take or agree in writing or otherwise to take, any action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder or knowingly cause any condition to Parent's closing obligations in Section 6.1 or Section 6.3 not to be satisfied. Without limiting the generality of the foregoing, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, neither Indirect Parent, Second Intermediary Parent, First Intermediary Parent nor Parent shall permit except as set forth in the Company toDisclosure Schedule or as required or expressly permitted by this Agreement, and the Company shall not do do, cause or permit any of the following, without the prior written consent of Parent:

Conduct Prior to the Effective Time. 5.1 4.1 Conduct of Business by of the Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and Parent. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or and the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and Parent shall cause the Company to and agrees (unless the Company shall, except is required to the extent that Purchaser take such action pursuant to this Agreement or Broadcom shall otherwise give its prior consent in writing (which consent shall not be unreasonably withheld or delayed), withheld) to carry on its business, business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted course consistent with past practice and in compliance any event consistent with all applicable laws and regulationsthe Company's Operating Plan provided prior to the date of this Agreement to Broadcom, to pay its debts Liabilities and taxes when due subject Taxes consistent with the Company's past practices and to good faith disputes over such debts or taxes, pay or perform other material obligations when duedue (other than Liabilities, Taxes and other obligations, if any, contested in good faith), and, to the extent consistent with such business, to use its commercially reasonable efforts consistent with past practices and institute all policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and key employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, independent contractors and others other Persons having business dealings with which it has significant business dealingsit, all with the express purpose and intent of preserving unimpaired its goodwill and ongoing businesses at the Effective Time. In addition, except Except as permitted expressly contemplated by the terms of this Agreement, and the transactions contemplated herebyCompany shall not, without the prior written consent of PurchaserBroadcom, knowingly, and, after review of this Agreement, take or agree in writing or otherwise to take, any action that would result in the occurrence of any of the changes described in Section 2.9 of this Agreement or knowingly, after review of this Agreement, take, or agree in writing otherwise to take, any other action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder or knowingly cause any condition in Section 6.1 or Section 6.3 not to be satisfied. Without limiting the generality of the foregoing, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, neither Indirect Parent, Second Intermediary Parent, First Intermediary Parent nor Parent shall permit except as set forth in the Company toDisclosure Schedule or as required or expressly permitted by this Agreement, and the Company shall not do do, cause or permit any of the following, without the prior written consent of Broadcom:

Conduct Prior to the Effective Time. 5.1 7.1 Conduct of Business by Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent of Zabit and ParentX-ceed. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and Parent shall cause the Company to and the Company shall, except to the extent that Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed), carry on its business, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. In addition, except as permitted by the terms of this Agreement, and the transactions contemplated hereby, without the prior written consent of Purchaser, during the period from the execution date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Zabit and X-ceed agree (except as contemplated by this Agreement or to the extent that Zabit or X-ceed shall otherwise consent in writing) to carry on their business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay their debts and Taxes when due, to pay or perform other obligations when due, and, to the extent consistent with such business, to use all commercially reasonable efforts consistent with past practice and policies to preserve intact their present business organization, keep available the services of their present officers and key employees and preserve their relationships with customers, suppliers, licensors, licensees, and others having business dealings with them, all with the goal of preserving unimpaired their goodwill and ongoing businesses at the Effective Time and, in the case of X-ceed, to cause any Subsidiaries to do the same. Notwithstanding the foregoing, nothing in this Section 7.1 shall be considered to prohibit X-ceed from consummating transactions announced or previously disclosed to Zabit, including the Mercury 7 Transaction, prior to the date of this Agreement or disclosed in the X-ceed SEC Filings or in the X-ceed Disclosure Schedule. Following the date of this Agreement, Zabit and X-ceed shall promptly notify the other party of any materially adverse event related to such party and, in the case of X-ceed, its Subsidiaries or the business of such party and, in the case of X-ceed, its Subsidiaries. Without limiting the foregoing, except as expressly contemplated by this Agreement, neither Indirect ParentZabit nor X-ceed shall, Second Intermediary Parentnor, First Intermediary Parent nor Parent shall in the case of X-ceed, permit the Company any Subsidiary to, and Company shall not do any without the prior written consent of the followingother party:

Conduct Prior to the Effective Time. 5.1 6.1 Conduct of Business by the Company, Indirect ParentEdtechX, Second Intermediary -------------------------------------------------------------------- ParentHoldco, First Intermediary Parent and Parentthe Merger Subs. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and Parent shall cause the Company to and the Company Closing, each of the Company, the Company’s Subsidiaries, EdtechX, Holdco, and the Merger Subs shall, except to the extent that Purchaser EdtechX (in the case of a request by the Company or the Company’s Subsidiaries) or the Company (in the case of a request by EdtechX) shall otherwise consent in writing (which consent shall not be unreasonably withheld withheld, conditioned or delayed)) or as set forth in Schedule 6.1 hereto or as contemplated by this Agreement, carry on its business, business in the usual, regular and ordinary coursecourse consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, Legal Requirements (except as expressly contemplated by Schedule 6.1 hereto) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees and (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others other business partners with which it has significant business dealingsdealings of more than $2,000,000 per annum. In addition, except as required or permitted by the terms of this Agreement, and the transactions contemplated herebyAgreement or as set forth in Schedule 6.1 hereto, without the prior written consent of PurchaserEdtechX (in the case of a request by the Company or the Company’s Subsidiaries) or the Company (in the case of a request by EdtechX) (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective TimeClosing, neither Indirect Parent, Second Intermediary Parent, First Intermediary Parent nor Parent shall permit each of the Company to(on its behalf and on behalf of its Subsidiaries), EdtechX, Holdco, EdtechX Merger Sub and Company Meten Merger Sub shall not do any of the following:

Conduct Prior to the Effective Time. 5.1 4.1 Conduct of Business by the Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and ParentMerger Sub. During the period from the date -------------------------------------------- of this Agreement Date and continuing until the earlier of the termination of this Agreement pursuant to its terms or and the Effective TimeClosing, Indirect Parenteach of the Company, Second Intermediary Parentthe Company’s Subsidiaries, First Intermediary Parent and Parent shall cause the Company to and the Company Merger Sub shall, except to the extent that Purchaser Parent (in the case of a request by the Company) or the Company (in the case of a request by Parent or Merger Sub) shall otherwise consent in writing (in either case, which consent shall not be unreasonably withheld withheld, conditioned or delayed) or as set forth in Schedule 4.1 of the Company Schedules or the Parent Schedules (“Schedule 4.1”) or as contemplated by this Agreement or the Convertible Note Documents or as required by applicable law (including as may be compelled by any Governmental Entity), use commercially reasonable efforts to carry on its business, business in the usual, regular and ordinary coursecourse consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, regulations (except as expressly contemplated by Schedule 4.1) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and key employees and (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. Notwithstanding the foregoing provisions of this Section 4.1, each Party shall be deemed not to have failed to satisfy its obligations under this Section 4.1 to the extent such failure resulted, directly or indirectly, from such Party’s failure to take any action prohibited by (a) through (v) below, where consent for such action hereunder was requested in writing and not given by the other Party. In addition, except as permitted by but subject to the terms of this Agreement, and the transactions contemplated herebyforegoing exceptions, without the prior written consent of PurchaserParent (in the case of a request by the Company) or the Company (in the case of a request by Parent or Merger Sub) (in either case, which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement Date and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective TimeClosing, neither Indirect Parentexcept as set forth in Schedule 4.1, Second Intermediary Parent, First Intermediary Parent nor Parent shall permit each of the Company to(on its behalf and on behalf of its Subsidiaries), Parent and Company Merger Sub shall not do any of the following:

Conduct Prior to the Effective Time. 5.1 4.1 Conduct of Business by of the Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and Parent. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or and the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and Parent shall cause the Company to and agrees (unless the Company shall, except is required to the extent that Purchaser take such action pursuant to this Agreement or Broadcom shall otherwise give its prior consent in writing (which consent shall not be unreasonably withheld or delayed), withheld) to carry on its business, business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted course consistent with past practice and in compliance any event consistent with all applicable laws and regulationsthe Operating Plan provided prior to the date of this Agreement to Broadcom (including continuing to hire new employees at a rate at least at the levels provided in the Operating Plan) (any material deviations from, or material modifications to, the Operating Plan shall be required to be approved in advance by Broadcom), to pay its debts Liabilities and taxes Taxes consistent with the Company's past practices (and in any event when due subject due), to good faith disputes over such debts or taxes, pay or perform other material obligations when duedue consistent with the Company's past practices (other than Liabilities, Taxes and other obligations, if any, contested in good faith through appropriate proceedings), and, to the extent consistent with such business, to use its all commercially reasonable efforts consistent with past practices and institute all policies required to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and key employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, independent contractors and others other Persons having business dealings with which it has significant business dealingsit, all with the express purpose and intent of preserving unimpaired its goodwill and ongoing businesses at the Effective Time. In addition, except Except as permitted expressly contemplated by the terms of this Agreement, and the transactions contemplated herebyCompany shall not, without the prior written consent of PurchaserBroadcom, knowingly take or agree in writing or otherwise to take, any action that would result in the occurrence of any of the changes described in Section 2.9 (other than actions contemplated by the Operating Plan) or any other action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder or knowingly cause any condition to Broadcom's closing obligations in Section 6.1 or Section 6.3 not to be satisfied. Without limiting the generality of the foregoing, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, neither Indirect Parent, Second Intermediary Parent, First Intermediary Parent nor Parent shall permit except as contemplated by the Operating Plan or as set forth in the Company toDisclosure Schedule or as required or expressly permitted by this Agreement, and the Company shall not do do, cause or permit any of the following, without the prior written consent of Broadcom:

Conduct Prior to the Effective Time. 5.1 4.1 Conduct of Business by the Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and ParentMerger Sub. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or and the Effective TimeClosing, Indirect Parenteach of the Company, Second Intermediary Parentthe Company’s Subsidiaries, First Intermediary Parent and Parent shall cause the Company to and the Company Merger Sub shall, except to the extent that Purchaser Parent (in the case of a request by the Company) or the Company (in the case of a request by Parent or Merger Sub) shall otherwise consent in writing (which consent shall not be unreasonably withheld withheld, conditioned or delayed)) or as set forth in Schedule 4.1 of the Company Schedule or the Parent Schedule (“Schedule 4.1”) or as contemplated by this Agreement or the PIPE Documents, carry on its business, business in the usual, regular and ordinary coursecourse consistent with past practices, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, regulations (except as expressly contemplated by Schedule 4.1) and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees and (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. In addition, except as permitted by but subject to the terms of this Agreement, and the transactions contemplated herebyforegoing exceptions, without the prior written consent of PurchaserParent (in the case of a request by the Company) or the Company (in the case of a request by Parent or Merger Sub) (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective TimeClosing, neither Indirect Parentexcept as set forth in Schedule 4.1, Second Intermediary Parent, First Intermediary Parent nor Parent shall permit each of the Company to(on its behalf and on behalf of its Subsidiaries), Parent and Company Merger Sub shall not do any of the following:

Conduct Prior to the Effective Time. 5.1 4.1 Conduct of Business by of the Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and Parent. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of (x) the termination of this Agreement pursuant to its terms or and (y) the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and the Company agrees (unless the Company is required to take such action pursuant to this Agreement or Parent shall cause the Company to and the Company shall, except to the extent that Purchaser shall otherwise give its prior consent in writing (writing, which consent shall not be unreasonably withheld or delayed), withheld) to carry on its business, business substantially in the usual, regular and ordinary course, in course substantially the same manner as heretofore conducted consistent with past practice and in compliance any event consistent with all applicable laws and regulationsthe Operating Plan provided prior to the date of this Agreement to Parent (any material deviations therefrom or material modifications to the Operating Plan shall be required to be approved in advance by Parent), to pay its debts Liabilities and taxes Taxes consistent with the Company's past practices (and in any event when due subject due), to good faith disputes over such debts or taxes, pay or perform other material obligations when duedue consistent with the Company's past practices (other than Liabilities, Taxes and other obligations, if any, contested in good faith through appropriate proceedings), and, to the extent consistent with such business, to use its all commercially reasonable efforts consistent with past practices and institute all commercially reasonable policies required to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present officers and key employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, independent contractors and others other Persons having business dealings with which it has significant business dealingsit, all with the express purpose and intent of preserving substantially unimpaired its goodwill and ongoing businesses at the Effective Time, provided, however, that the Company may without necessity of Parent approval make adjustments to its operations that the Company's management reasonably deems necessary or appropriate to respond to any changed market, competitive, or economic conditions. In additionSubject to the same proviso, except as permitted expressly contemplated by the terms of this Agreement, and the transactions contemplated herebyCompany shall not, without the prior written consent of PurchaserParent, take or agree in writing or otherwise to take, any action that would result in the occurrence of any of the changes described in Section 2.9 or any other action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect. The Company shall not, without the prior written consent of Parent, take or agree in writing or otherwise to take, any action that would prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder or knowingly cause any condition to Parent's closing obligations in Section 6.1 or Section 6.3 not to be satisfied. Without limiting the generality of the foregoing, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, neither Indirect Parent, Second Intermediary Parent, First Intermediary Parent nor Parent shall permit except as set forth in the Company toDisclosure Schedule or as required or expressly permitted by this Agreement, the Company and Company each of its Subsidiaries shall not do (and shall cause each of their respective Subsidiaries, if any, not to) do, cause or permit any of the following, without the prior written consent of Parent, which shall not be unreasonably withheld:

Conduct Prior to the Effective Time. 5.1 4.1 Conduct of Business by of the Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and Parent. During the period from the date -------------------------------------------- of this Agreement April 21, 2000 and continuing until the earlier of the termination of this Agreement pursuant to its terms or and the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and the Company agrees (unless Parent shall cause the Company to and the Company shall, except to the extent that Purchaser shall otherwise give its prior consent in writing (which consent shall not be unreasonably withheld or delayed), withheld) to carry on its business, business in the usual, regular and ordinary coursecourse consistent in all respects with the Company's 2000 operating plan provided to Parent prior to the date of this Agreement, in substantially to pay its Liabilities and Taxes consistent with the same manner as heretofore conducted Company's past practices (and in compliance with all applicable laws and regulationsany event when due), pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when duedue consistent with the Company's past practices (other than Liabilities, Taxes and other obligations, if any, contested in good faith through appropriate proceedings), and, to the extent consistent with such business, to use its commercially reasonable efforts consistent with past practices and institute all policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and key employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, independent contractors and others other Persons having business dealings with which it has significant business dealingsit, all with the express purpose and intent of preserving unimpaired its goodwill and ongoing businesses at the Effective Time. In addition, except Except as permitted expressly contemplated by the terms of this Agreement, and the transactions contemplated herebyCompany shall not, without the prior written consent of Purchaser, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, neither Indirect Parent, Second Intermediary Parent, First Intermediary Parent nor Parent shall permit the Company to, and Company which consent shall not do be unreasonably withheld, take, or agree in writing or otherwise to take, any of the following:actions described in Section 2.9 of this Agreement, or any other action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder. Without limiting the generality of the foregoing, with respect to Section 2.9(j), any Options granted must have an exercise price of at least the fair market value of the Company Common Stock on the date the Option was granted (as determined in good faith by the Company's board of directors following consultation with, and consistent with the advice provided by, each of the Company's and Parent's independent public accountants).

Conduct Prior to the Effective Time. 5.1 4.1 Conduct of Business by Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent of the Company and Business of Parent. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and Parent shall cause the Company to and the Company shall, except to the extent that Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed), carry on its business, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. In addition, except as permitted by the terms of this Agreement, and the transactions contemplated hereby, without the prior written consent of Purchaser, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, neither Indirect (a) the Company agrees to operate the business of the Company in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, except as expressly contemplated by this Agreement or otherwise consented to by Parent in writing and (b) Parent agrees to operate the business of Parent in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, except as expressly contemplated by this Agreement or otherwise consented to by the Company in writing. The Company and Parent each further agree to pay their respective debts and Taxes when due, to pay or perform all other obligations when due (including pay accounts payable without extension), to use their commercially reasonable efforts to preserve intact their present respective business organizations, to preserve their respective cash in accordance with past practice, to use their commercially reasonable efforts to promptly collect all their respective receivables, to use their commercially reasonable efforts to keep available the services of their present respective officers and employees (other than termination for cause following notice to and consultation with one another), to use their commercially reasonable efforts to preserve and maintain in full force and effect all Owned Company Intellectual Property and Owned Parent Intellectual Property (respectively), to timely pay all fees, costs, royalties, and expenses relating to Owned Company Intellectual Property and Owned Parent Intellectual Property (respectively), and to timely file and pay for all applications, statements, documents, extensions, disclaimers, and registrations relating to Owned Company Intellectual Property and Owned Parent Intellectual Property (respectively), and to preserve their respective relationships with customers, suppliers, distributors, licensors, licensees and others having business dealings with the Company and Parent, Second Intermediary Parentrespectively. The Company shall promptly notify Parent of any event or occurrence or emergency not in the ordinary course of business of the Company and any material event involving the Company, First Intermediary Parent nor and Parent shall permit promptly notify the Company to, of any event or occurrence or emergency not in the ordinary course of business of Parent and Company shall not do any of the following:material event involving Parent.

Conduct Prior to the Effective Time. 5.1 4.1 Conduct of Business by Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and Parent. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and Parent shall cause the Company to and the Company each of its subsidiaries shall, except to the extent that Purchaser Parent shall otherwise consent in writing or as otherwise required by this Agreement or by applicable Legal Requirements, (which consent shall not be unreasonably withheld or delayed), i) carry on its business, business in the usual, regular and ordinary course, course in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulationsLegal Requirements, (ii) pay its debts Liabilities and taxes Taxes when due subject to good faith disputes over such debts or taxesin the ordinary course in substantially the same manner as heretofore conducted and in compliance with all applicable Legal Requirements, (iii) pay or perform other material obligations when due, and (iv) use its commercially all reasonable efforts to assure that each such Contract entered into after the date hereof will not require the procurement of any consent, waiver or novation or provide for any material change in the obligations of any party hereto in connection with, or terminate as a result of the consummation of, the Merger, and shall give reasonable advance notice to Parent prior to allowing any Company Contract, IP Contract or material right thereunder to lapse or terminate by its terms (it being understood that, after the date of this Agreement, the Company may only enter into an IP Contract if the entry into such IP Contract is not otherwise prohibited by this Section 4.1, including Section 4.1(f) below), (v) maintain each of its leased premises in accordance with the terms of the applicable lease in all material respects, (vi) use all reasonable efforts to maintain in good condition, consistent with past standard industry practices, Company’s procedures and Good Laboratory Practices, Good Clinical Practices and Good Manufacturing Practices, any and all Product Inventory (as defined in Section 2.8) not used in the ordinary course of business for clinical trials or compassionate use, (vii) use all reasonable efforts to maintain in accordance with standard industry practices and policies the Company’s procedures and pursuant to Company Contracts in effect as of the date of this Agreement, any DNA, protein, expression product, cell line, reagent, know-how or other material that constitutes a Company Product or product candidate, or that is necessary to produce any Company Product or product candidate or perform research or clinical trials with regard to any product candidate being pursued as of the date of this Agreement; (ix) notify and give Parent the opportunity to participate in the defense or settlement of any litigation to which the Company is a party, and (x) use all reasonable efforts to (iA) preserve intact its present business organization, (iiB) keep available the services of its present officers and employees any Employees identified in writing by Parent to the Company as a “key employee”, and (iiiC) preserve its relationships with customers, suppliers, distributors, consultants, licensors, licensees, licensees and others with which it has significant business dealings. In addition, except as permitted by the terms of this Agreement, and the transactions contemplated hereby, without the prior written consent of PurchaserParent, except as required by this Agreement or Legal Requirements and except as disclosed in Section 4.1 of the Company Disclosure Letter, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, neither Indirect Parent, Second Intermediary Parent, First Intermediary Parent nor Parent shall permit the Company to, and Company shall not do any of the following and shall not permit its subsidiaries to do any of the following:

Conduct Prior to the Effective Time. 5.1 4.1 Conduct of Business by Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and Parent. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and Parent shall cause the Company to and the Company shall, except to the extent that Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed), carry on its business, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealingsCompany. In addition, except as permitted by the terms of this Agreement, and the transactions contemplated hereby, without the prior written consent of Purchaser, during ----------------------------------- During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or and the Effective Time, neither Indirect Parentthe Company (which for the purposes of this Section 4.1 shall include the Company and each of its subsidiaries) agrees, Second Intermediary Parent, First Intermediary Parent nor except as expressly contemplated by this Agreement or to the extent that Parent shall permit otherwise consent in writing, to carry on its business in the usual, regular, and ordinary course, in substantially the same manner as heretofore conducted, and in compliance in all material respects with all applicable laws and regulations, to pay its debts and Taxes when due subject to good faith disputes over such debts or Taxes, to pay or perform other material obligations when due, and to use all reasonable efforts consistent with past practices and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and employees, and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with the Company, to the end that the Company's goodwill and ongoing businesses shall not be impaired in any material respect at the Effective Time. The Company shall promptly notify Parent of any event or occurrence not in the ordinary course of business of the Company toand will not enter into or amend any agreement or take any action which reasonably would be expected to have a Material Adverse Effect on the Company. Except as expressly contemplated by this Agreement, and the Company shall not do any prior to the Effective Time or earlier termination of this Agreement pursuant to its terms, without the followingprior written consent of Parent, which consent will not be unreasonably withheld: