Common use of Operating Covenants Clause in Contracts

Operating Covenants. The Merger Agreement provides that, except as expressly permitted by the Merger Agreement, as required by applicable law or as consented to by Parent in writing, during the period from the date of the Merger Agreement until the Effective Time, Terremark shall, and will cause each of its subsidiaries to (i) conduct its business in the ordinary course consistent with past practice, (ii) comply in all material respects with all applicable laws and the requirements of all material contracts, (iii) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees, (iv) keep in full force and effect all material insurance policies and (v) maintain, or cause to be maintained, all facilities in good condition. From the date of the Merger Agreement to the Effective Time, Terremark is subject to customary operating covenants and restrictions, including restrictions relating to the issuance, sale, grant, disposal of, pledge or other encumbrance of its stock, voting securities or equity interests; redemption, purchase or acquisition of its capital stock, voting securities or equity interests; the declaration, setting aside for payment or payment of any dividends or other distributions; split, combination, subdivision or reclassification of any Shares; the amendment or waiver of any rights under any Company Stock Plans or agreement evidencing a right to acquire Shares or any restricted stock purchase agreement or any similar or related contract; the incurrence, assumption or guarantee of indebtedness or issuance or sale of any debt securities or options, warrants, calls or other rights to acquire any debt securities of Terremark or any of its subsidiaries; the sale, transfer, lease, sublease, license, mortgage, encumbrance or other disposal or purchase of or subjection to any lien of material property or material assets; the making of certain capital expenditures; the acquisition of equity interests or assets of another person, other than for consideration not in excess of limits specified in the Merger Agreement; making investments, loans, or advances; entrance into, amendment, termination or modification of material contracts; the release of any person from, modification or waiver of any provision of, any confidentiality, standstill or similar agreement; increase in compensation of current or former directors, officers, employees or consultants; certain tax matters; changes in accounting policies; the amendment of Terremark’s charter documents; adoption of a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization; settlement or satisfaction of certain claims, liabilities, or obligations; communications with employees, suppliers, vendors or customers, settlement or compromise of any material litigation or proceeding; failure to take appropriate actions as necessary to prevent the abandonment, loss or impairment of material intellectual property; and the sale, assignment, license, transfer, conveyance, lease, disposal of or encumbrance on intellectual property or technology.

Operating Covenants. The HP Merger Agreement provides that, except as expressly permitted by the Merger Agreement, as required by applicable law or as consented to by Parent in writing, during the period from the date of the HP Merger Agreement until the earlier of the termination of the HP Merger Agreement or the Effective Time, Terremark shallexcept as (i) contemplated by the HP Merger Agreement, (ii) set forth in the confidential disclosure schedules provided by 3PAR, or (iii) with the prior written consent of HP (which consent may not be unreasonably withheld, conditioned or delayed), 3PAR would, and will would cause each of its subsidiaries to to, (ia) carry on its business and conduct its business operations in the usual, regular and ordinary course in substantially the same manner as previously conducted and (b) use its commercially reasonable efforts, consistent with past practicepractices and policies, to (I) keep available the services of the current officers, key employees and consultants of 3PAR and each of its subsidiaries, (iiII) comply in all material respects preserve the current relationships of 3PAR and each of its subsidiaries with all applicable laws customers, suppliers and the requirements other persons or entities with whom 3PAR or any of all material contractsits subsidiaries has significant business relations, (iiiIII) use commercially reasonable efforts to maintain all of its material operating assets in their current condition (normal wear and tear excepted) and (IV) maintain and preserve intact its business organization and the goodwill of those having business relationships with it its material rights and retain the services of its present officers and key employees, (iv) keep in full force and effect all material insurance policies and (v) maintain, or cause to be maintained, all facilities in good conditionfranchises. From Between the date of the HP Merger Agreement to and continuing until the earlier of the termination of the HP Merger Agreement or the Effective Time, Terremark is 3PAR would be subject to customary operating covenants and restrictionsrestrictions (subject to certain exceptions specified in the HP Merger Agreement) including that 3PAR would not: • amend its certificate of incorporation or bylaws or comparable organizational documents or create any new subsidiaries; • issue, including restrictions relating sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance, sale, grant, disposal of, pledge or other encumbrance of its stock, voting securities or equity interests; redemption, purchase or acquisition of its capital stock, voting securities or equity interests; the declaration, setting aside for payment or payment of any dividends or other distributions; split, combination, subdivision or reclassification of any Shares; the amendment or waiver of any rights under any Company Stock Plans or agreement evidencing a right to acquire Shares or any restricted stock purchase agreement or any similar or related contract; the incurrence, assumption or guarantee of indebtedness or issuance or sale granting of any debt securities or options, warrants, calls commitments, subscriptions, rights to purchase or otherwise) any of 3PAR's or its subsidiaries' capital stock or other rights to acquire any debt securities of Terremark equity interests, with certain exceptions; • directly or indirectly acquire, repurchase or redeem any of 3PAR's or its subsidiaries; the sale, transfer, lease, sublease, license, mortgage, encumbrance ' capital stock or other disposal or purchase of or subjection to any lien of material property or material assetsequity interests, with certain exceptions; the making of certain capital expenditures; the acquisition of equity interests or assets of another person, other than for consideration not in excess of limits specified in the Merger Agreement; making investments, loans, or advances; entrance into, amendment, termination or modification of material contracts; the release of any person from, modification or waiver of any provision of, any confidentiality, standstill or similar agreement; increase in compensation of current or former directors, officers, employees or consultants; certain tax matters; changes in accounting policies; the amendment of Terremark’s charter documents; adoption of a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization; settlement or satisfaction of certain claims, liabilities, or obligations; communications with employees, suppliers, vendors or customers, settlement or compromise of any material litigation or proceeding; failure to take appropriate actions as necessary to prevent the abandonment, loss or impairment of material intellectual property; and the sale, assignment, license, transfer, conveyance, lease, disposal of or encumbrance on intellectual property or technology.•

Operating Covenants. The Merger Agreement provides that, except as expressly permitted by the Merger Agreement, as required by applicable law or as consented to by Parent in writing, during the period from the date of the Merger Agreement until the Effective earlier of the termination of the Merger Agreement or the Appointment Time, Terremark shallexcept as contemplated by the Merger Agreement, set forth in the confidential disclosure schedules provided by ArcSight, or approved in advance by HP in writing (which approval may not be unreasonably withheld, conditioned or delayed), ArcSight and will cause each of its subsidiaries to will (i) conduct carry on its business in all material respects in the ordinary course consistent with past practice, (ii) comply in all material respects substantially the same manner as previously conducted and in compliance with all applicable laws and the requirements of all material contractsregulations, (ii) pay its debts and taxes when due, subject to good faith disputes over such debts or taxes, (iii) pay or perform all material obligations when due and (iv) use commercially reasonable efforts efforts, consistent with past practices and policies, to maintain and (A) preserve intact its business organization and the goodwill of those having business relationships with it and retain organization, (B) keep available the services of its present officers and key employees, (ivC) keep preserve its relationships with customers, suppliers, distributors, licensors, licensees and others with which it has significant business dealings, and (D) preserve and maintain in full force and effect all material insurance policies registered intellectual property rights of ArcSight and (v) maintainits subsidiaries, or cause to be maintained, all facilities and timely effect certain payments and filings in good conditionconnection therewith. From Between the date of the Merger Agreement to and continuing until the Effective earlier of the termination of the Merger Agreement or the Appointment Time, Terremark ArcSight is subject to customary operating covenants and restrictions, except as contemplated by the Merger Agreement, set forth in the confidential disclosure schedules provided by ArcSight, or approved in advance by HP in writing (which approval may not be unreasonably withheld, conditioned or delayed), including restrictions relating that ArcSight will not, or permit any of its subsidiaries to: • declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock or other equity interests, except for dividends by a wholly owned subsidiary of ArcSight to its parent; • purchase, redeem or otherwise acquire shares of its capital stock or other equity interests or any options, warrants, or rights to acquire any such shares or other equity interests; • split, combine, reclassify or otherwise amend the issuanceterms of any of its capital stock or other equity interests; • issue, saledeliver, sell, grant, disposal of, pledge or other encumbrance of its stock, voting securities or equity interests; redemption, purchase or acquisition otherwise encumber any shares of its capital stock, voting securities stock or other equity interests, any securities convertible into, or exchangeable for, or any rights, warrants or options to acquire, any such shares or other equity interests, or any rights linked to the value of such shares, with certain exceptions; • amend its certificate of incorporation or by-laws (or similar organizational documents); • directly or indirectly acquire or agree to acquire (i) any corporation, partnership, association or other business organization or division thereof, with certain exceptions for transactions among ArcSight and its wholly owned subsidiaries or (ii) any assets that are otherwise material to ArcSight and its subsidiaries, other than in the declarationordinary course of business consistent with past practice; • directly or indirectly sell, setting aside lease, license, sell and leaseback, abandon, or otherwise dispose of, in whole or in part, any of its material properties, assets or rights or any interest therein, except (i) sales of company products and non-exclusive intellectual property licenses in the ordinary course of business, and (ii) disposition of equipment and property no longer used in the operation of business; • directly or indirectly mortgage or otherwise subject to any lien in whole or in part any of its material properties, assets or rights or any interest therein; • adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization; • incur, create, assume or otherwise become liable for, any indebtedness for payment borrowed money, any obligations under conditional or payment installment sale contracts or other retention contracts relating to purchased property, any capital lease obligations or any guarantee or any such indebtedness of any dividends other person, issue or other distributions; split, combination, subdivision or reclassification of any Shares; the amendment or waiver of any rights under any Company Stock Plans or agreement evidencing a right to acquire Shares or any restricted stock purchase agreement or any similar or related contract; the incurrence, assumption or guarantee of indebtedness or issuance or sale of sell any debt securities or securities, options, warrants, calls or other rights to acquire any debt securities, guarantee any debt securities of Terremark any other person, enter into any agreement to maintain any financial statement condition of any other person, enter into any arrangement having the economic effect of any of the foregoing except accounts payable to trade creditors, or amend, modify or refinance any of the foregoing; • except for advances to employees for travel and business expenses in the ordinary course of business, make any loans, advances or capital contributions to, or investments in, any other person, other than ArcSight or any of its wholly owned subsidiaries; the sale, transfer, lease, sublease, license, mortgage, encumbrance • incur or other disposal commit to incur any capital expenditure or purchase of authorization or subjection to any lien of material property or material assets; the making of certain capital expenditures; the acquisition of equity interests or assets of another person, other than for consideration not commitment with respect thereto in excess of limits specified $250,000, in the Merger Agreementaggregate, except those provided for in the capital expenditure budget set forth in the confidential disclosure schedule provided by ArcSight; making investments, loans, or advances; entrance into, amendment, termination or modification of material contracts; the release of any person from, modification or waiver of any provision of, any confidentiality, standstill or similar agreement; increase in compensation of current or former directors, officers, employees or consultants; certain tax matters; changes in accounting policies; the amendment of Terremark’s charter documents; adoption of a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization; settlement or satisfaction of certain claims, liabilities, or obligations; communications with employees, suppliers, vendors or customers, settlement or compromise of any material litigation or proceeding; failure to take appropriate actions as necessary to prevent the abandonment, loss or impairment of material intellectual property; and the sale, assignment, license, transfer, conveyance, lease, disposal of or encumbrance on intellectual property or technology.•

Operating Covenants. The Merger Agreement provides that, except as expressly permitted by Pursuant to the Merger Agreement, as required by applicable law or as consented to by Parent in writing, during the period from the date of the Merger Agreement until the Effective Time, Terremark shallexcept as (i) disclosed in the confidential disclosure letter that AveXis delivered to Parent and Purchaser in connection with the execution of the Merger Agreement, (ii) specifically permitted or required by the Merger Agreement, (iii) required by applicable law, or (iv) consented to in writing by Parent (which consent will not be unreasonably withheld, delayed or conditioned), AveXis has agreed to, and will has agreed to cause each of its subsidiaries to, conduct its business in the ordinary course and, to the extent consistent therewith, use commercially reasonable efforts to: preserve intact its present business organization; maintain in effect all approvals, authorizations, certificates, registrations, licenses, exemptions, permits and consents of governmental entities; keep available the services of its officers and employees; and preserve its present relationships with customers, suppliers, licensors, licensees and distributors and others having material business dealings with it. In addition, during the same period, except as (i) conduct disclosed in the confidential disclosure letter that AveXis delivered to Parent and Purchaser in connection with the execution of the Merger Agreement, (ii) specifically permitted or required by the Merger Agreement, (iii) required by applicable law, or (iv) consented to in writing by Parent (which consent will not be unreasonably withheld, delayed or conditioned), AveXis has agreed not to, and has agreed not to permit any of its subsidiaries to, subject to certain exceptions: • declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock, other than dividends and distributions by a direct or indirect wholly-owned subsidiary of AveXis to its parent; • split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; • repurchase, redeem or otherwise acquire any shares of capital stock of AveXis or any of its subsidiaries or options, warrants, convertible or exchangeable securities, stock-based units (performance-based or otherwise) or other rights to acquire any such shares of capital stock; • issue, grant, deliver or sell any shares of its capital stock or options, warrants, convertible or exchangeable securities, stock-based units (performance-based or otherwise) or other rights to acquire such shares, any indebtedness with voting rights or other rights that give any person the right to receive any economic or voting interest of a nature accruing to the holders of Shares; • amend its certificate of incorporation, by-laws or other comparable organizational documents; • acquire or agree to acquire, in a single transaction or a series of related transactions, or by any other manner, any business or any corporation, partnership, limited liability company, joint venture, association or other business organization or division thereof or any other person for aggregate consideration in excess of a specified threshold; • except as required by the terms of employee benefit plans and agreements in effect on the date of the Merger Agreement, (i) adopt, enter into, establish, terminate, materially amend or modify any collective bargaining agreement or material employee benefit plan or agreement; (ii) grant to any director or executive officer any increase in compensation; (iii) grant to any employee any increase in the target amount of his or her annual cash bonus; (iv) make salary increases that, in the aggregate, exceed 5% of all employees' annual base salaries and base wages; (v) grant to any director or executive officer any increase in severance or termination pay; (vi) enter into any employment, consulting, severance or termination agreement with any director or with any employee whose annual base salary exceeds, or would exceed, $300,000; (vii) hire, or agree to hire, any employee, other than in the ordinary course consistent with past practice; or (viii) take any action to accelerate any rights or benefits under any employee benefit plan or agreement; provided that neither the restrictions set forth in the fourth bullet of this section nor the restrictions set forth in clauses (i)-(viii) of this bullet shall restrict AveXis or any of its subsidiaries from entering into or making available to newly hired employees or to employees, in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business, plans, agreements, benefits and compensation arrangements (including incentive grants); • make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of AveXis except as may be required by concurrent changes in (i) GAAP (or any authoritative interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or (ii) by law, including Regulation S-X under the Securities Act; • sell, divest, lease (as lessor), license or otherwise dispose of, or pledge, encumber or otherwise subject to any lien, any properties or assets that are material, individually or in the aggregate, to AveXis and its subsidiaries, taken as a whole, except (i) sales or other dispositions of (A) inventory and (B) excess or obsolete properties or assets, in each case, in the ordinary course of business, (ii) comply the granting of non-exclusive licenses for intellectual property in all material respects the ordinary course of business pursuant to agreements with all applicable laws contract manufacturers, contract research organizations and other service providers where the requirements license is incidental to and not the primary purpose of all material contracts, the agreement or (iii) use commercially reasonable efforts to maintain and preserve intact its business organization and abandonments of patent applications in the goodwill ordinary course of those having business relationships with it and retain prosecution, where a continuation, continuation-in-part, request for continued examination or divisional application (or foreign equivalent of any of the services foregoing) is filed; • adopt or implement any stockholder rights plan or similar arrangement; • adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of AveXis or any of its present officers and key employees, (iv) keep in full force and effect all material insurance policies and (v) maintain, or cause to be maintained, all facilities in good condition. From the date of the Merger Agreement to the Effective Time, Terremark is subject to customary operating covenants and restrictions, including restrictions relating to the issuance, sale, grant, disposal of, pledge or other encumbrance of its stock, voting securities or equity interestssubsidiaries; redemption, purchase or acquisition of its capital stock, voting securities or equity interests; the declaration, setting aside • incur any indebtedness for payment or payment of any dividends or other distributions; split, combination, subdivision or reclassification of any Shares; the amendment or waiver of any rights under any Company Stock Plans or agreement evidencing a right to acquire Shares or any restricted stock purchase agreement or any similar or related contract; the incurrence, assumption borrowed money or guarantee any such indebtedness of indebtedness another person (except for short-term borrowings incurred in the ordinary course of business); • issue or issuance or sale of sell any debt securities or options, warrants, calls warrants or other rights to acquire any debt securities of Terremark AveXis or any of its subsidiaries; the sale, transfer, lease, sublease, license, mortgage, encumbrance or other disposal or purchase of or subjection to • guarantee any lien of material property or material assets; the making of certain capital expenditures; the acquisition of equity interests or assets debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing; • make any loans, advances or capital contributions to, or investments in, any other person; • other than for consideration not as reflected in a budget disclosed in the confidential disclosure letter, make or agree to make any capital expenditure or expenditures that in the aggregate are in excess of limits a specified threshold; • except as required by law or as otherwise is in the ordinary course of business, make, rescind or change any material tax election or settle or compromise any material tax liability or refund, make any material change to any accounting method or accounting period used for tax purposes that has a material effect on taxes, file any material amended tax return of AveXis or any AveXis subsidiary or enter into any closing agreement with any governmental entity regarding any material tax liability or assessment, or settle, compromise or consent to any material tax claim or assessment or surrender any right to a material tax refund; • enter into, terminate or modify or amend in a manner that is materially adverse to AveXis, or waive or release any material rights under any material contract or contract that, if existing on the date of the Merger Agreement, would have been a material contract; making investments, loans• settle, or advances; entrance into, amendment, termination offer or modification of material contracts; the release of any person from, modification or waiver of any provision ofpropose to settle, any confidentialitylegal proceeding involving AveXis or any of its subsidiaries that is material to AveXis and its subsidiaries, standstill taken as a whole; or similar agreement; increase in compensation • authorize, commit or agree to take any of current or former directorsthe foregoing actions. Except as otherwise expressly permitted by certain sections of the Merger Agreement, officerseach of AveXis and Parent has agreed that it will not, employees or consultants; certain tax matters; changes in accounting policies; the amendment and will not permit any of Terremark’s charter documents; adoption of a plan or agreement of complete or partial liquidationits respective subsidiaries to, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization; settlement or satisfaction of certain claims, liabilitiestake any action that would, or obligationswould reasonably be expected to, result in any of the conditions to the Offer set forth in "Section 14—Conditions of the Offer" or any of the conditions to the Merger set forth in "Section 13—The Merger Agreement; communications with employees, suppliers, vendors or customers, settlement or compromise of any material litigation or proceeding; failure to take appropriate actions as necessary to prevent the abandonment, loss or impairment of material intellectual property; and the sale, assignment, license, transfer, conveyance, lease, disposal of or encumbrance on intellectual property or technologyOther Agreements" not being satisfied.

Operating Covenants. The Merger Agreement provides that, except as expressly permitted or contemplated by the Merger Agreement, as required by applicable law laws or regulations or as consented to by Parent in writing, during the period from the date of the Merger Agreement until the Effective Time, Terremark shallthe Company will, and will cause each of its subsidiaries to (i) Subsidiaries to, conduct its business in the ordinary course course, consistent with past practice, (ii) comply in all material respects with all applicable laws and the requirements of all material contracts, (iii) use its commercially reasonable efforts to maintain and to: • preserve intact its intellectual property, business organization and material assets; • keep available the goodwill services of those its directors, officers and employees; Table of Contents • maintain in effect all of its governmental authorizations; and • maintain satisfactory relationships with its customers, lenders, suppliers, licensors, licensees, distributors and others having business relationships with the Company. The Merger Agreement also provides that, without limiting the generality of the foregoing, except for matters expressly permitted or contemplated by the Merger Agreement or as required by applicable law or regulations, the Company will not, nor will it and retain the services permit any of its present officers and key employeesSubsidiaries to, (iv) keep in full force and effect all material insurance policies and (v) maintaindo any of the following without the prior written consent of Parent: • amend the Company’s or any of its Subsidiaries’ articles or certificate of incorporation, bylaws or other comparable charter or organizational documents; • declare, set aside or pay any dividends on, or cause make any other distributions in respect of, or enter into any agreement for the voting of, any Company Common stock or any of the capital stock of the Company’s Subsidiaries, other than certain inter-company transactions and distributions resulting from the vesting or exercise of Company Compensatory Awards; • split, combine or reclassify any capital stock of the Company or any of its Subsidiaries; • except in connection with Company Compensatory Awards, issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of capital stock of the Company or any of its Subsidiaries; • purchase, redeem or otherwise acquire any Company Common Stock or capital stock of the Company’s Subsidiaries, except for acquisitions of Company Common Stock by the Company in satisfaction by holders of Company Compensatory Awards of the applicable exercise price and/or withholding taxes; • take any action that would result in any amendment, modification or change of any term of any Indebtedness of the Company or any of its Subsidiaries; • issue or authorize the issuance of any other securities in respect of, subject to be maintainedany lien or otherwise encumber or dispose of, all facilities purchase, redeem or otherwise acquire, or declare, set aside or pay any dividends on, or make any other distributions in good condition. From respect of, or enter into any agreement with respect to the voting of, any capital stock of the Company or any of its Subsidiaries, other than in certain circumstances in connection with Company Compensatory Awards; • adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization with respect to the Company or any of its Subsidiaries; • make any capital expenditures or incur any obligations or liabilities in respect thereof in excess of $2,000,000 in the aggregate in any fiscal quarter; • acquire any business, assets or capital stock of any Person or division thereof, or any other material assets (other than assets acquired in the ordinary course of business consistent with past practice); • sell, lease, license, pledge, transfer, subject to any lien or otherwise dispose of any of its intellectual property, material assets or material properties except: • pursuant to contracts or commitments in existence as of the date of the Merger Agreement Agreement; • sales of used equipment in the ordinary course of business consistent with past practice; or • certain permitted liens incurred in the ordinary course of business consistent with past practice; • take various actions related to the Effective Time, Terremark is subject to customary operating covenants and restrictions, including restrictions relating to the issuance, sale, grant, disposal of, pledge or other encumbrance of its stock, voting securities or equity interests; redemption, purchase or acquisition of its capital stock, voting securities or equity interests; the declaration, setting aside for payment or payment of any dividends or other distributions; split, combination, subdivision or reclassification of any Shares; the amendment or waiver of any rights under any Company Stock Plans or agreement evidencing a right to acquire Shares or any restricted stock purchase agreement or any similar or related contract; the incurrence, assumption or guarantee of indebtedness or issuance or sale of any debt securities or options, warrants, calls or other rights to acquire any debt securities of Terremark or any of its subsidiaries; the sale, transfer, lease, sublease, license, mortgage, encumbrance or other disposal or purchase of or subjection to any lien of material property or material assets; the making of certain capital expenditures; the acquisition of equity interests or assets of another person, other than for consideration not in excess of limits specified in the Merger Agreement; making investments, loans, or advances; entrance into, amendmenthiring, termination or modification of the terms of employment or engagement (including compensation) of employees, consultants, contractors and advisors; • write-down any of its material contractsassets, including any of its intellectual property; Table of Contents • make any change in any method of financial accounting principles, method or practices, in each case except for any such change required by GAAP or applicable law or regulations (in each case following consultation with the release Company’s independent auditor); • repurchase, prepay or incur indebtedness, subject, in certain cases, to certain exceptions for the financing of ordinary course payables and the accrual of accounts payable in the ordinary course of business consistent with past practice, or make any person fromloans, modification advances or waiver capital contributions to, or investments in, any other Person (other than to the Company or any of its Subsidiaries or accounts receivable and extensions of credit and advances in expenses to employees, in each case in the ordinary course of business consistent with past practice); • agree to any exclusivity, non-competition, most favored nation, or similar provision or covenant restricting the Company, any of its Subsidiaries or any of their respective affiliates from competing in any line of business or with any Person or in any area or engaging in any activity or business (including with respect to the development, manufacture, marketing or distribution of their respective products or services), or pursuant to which any benefit or right would be required to be given or lost as a result of so competing or engaging, or which would have any such effect on Parent or any of its affiliates after the Effective Time; • enter into any contract, or relinquish or terminate any contract or other right, in any individual case with an annual value in excess of $1,000,000 or with a value over the life of the contract in excess of $1,000,000, other than, in the ordinary course of business consistent with past practice: • certain software license agreements, services agreements or maintenance contracts where the Company or any of its Subsidiaries is the licensor; • non-exclusive distribution, marketing, reselling or consulting agreements that provide for distribution of a product of the Company by a third party; or • non-exclusive OEM agreements that are terminable without penalty within twelve months; • take various actions relating to taxes; • institute, pay, discharge, compromise, settle or satisfy (or agree to do any of the preceding with respect to) any claims, liabilities or obligations, in excess of $250,000 in any individual case, other than certain claims, liabilities or obligations previously disclosed or incurred in the ordinary course of business consistent with past practice, provided that the payment, discharge, settlement or satisfaction of such claim, liability or obligation does not include any material obligation (other than the payment of money) to be performed by the Company or any of its Subsidiaries following the date of the closing of the Merger; • waive, relinquish, release, grant, transfer or assign any right with a value of more than $250,000 in any individual case except in the ordinary course of business consistent with past practice; • waive any material benefits of, or agree to modify in any material adverse respect, or fail to enforce, or consent to any matter with respect to which its consent is required under, any confidentiality, standstill or similar agreementcontract to which the Company or any of its Subsidiaries is a party; increase • pay any fees and expenses incurred in compensation connection with the transactions contemplated by the Merger Agreement, in excess of current $250,000 in the aggregate; • engage in any trade loading practices or former directors, officers, employees any other promotional sales or consultants; certain tax matters; changes in accounting policies; the amendment of Terremark’s charter documents; adoption of a plan discount activity with any customers or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization; settlement or satisfaction of certain claims, liabilitiesdistributors, or obligationsengage in any practice which would accelerate collections of receivables into prior fiscal quarters that were to be paid in subsequent quarters or engage in any activity to postpone payment of obligations into subsequent fiscal quarters that that would otherwise be made in prior fiscal quarters, in each case outside the ordinary course of business consistent with past practices; communications with employeesTable of Contents • submit to the vote of the stockholders of the Company any Acquisition Proposal (whether or not a Superior Proposal) prior to the Effective Time; or • authorize, suppliers, vendors commit or customers, settlement or compromise of any material litigation or proceeding; failure agree to take appropriate actions as necessary to prevent any of the abandonment, loss or impairment of material intellectual property; and the sale, assignment, license, transfer, conveyance, lease, disposal of or encumbrance on intellectual property or technologyforegoing actions.

Operating Covenants. The Merger Agreement provides that, except as expressly permitted or contemplated by the Merger Agreement, as required by applicable law laws or regulations or as consented to by Parent in writing, during the period from the date of the Merger Agreement until the Effective Time, Terremark shallNetSuite will, and will cause each of its subsidiaries to (i) Subsidiaries to, conduct its business in the ordinary course course, consistent with past practice, (ii) comply in all material respects with all applicable laws and the requirements of all material contracts, (iii) use its commercially reasonable efforts to maintain and to: • preserve intact its intellectual property, business organization and material assets; • keep available the goodwill services of those its directors, officers and employees; • maintain in effect all of its governmental authorizations; and • maintain satisfactory relationships with its customers, lenders, suppliers, licensors, licensees, distributors and others having business relationships with it and retain NetSuite. The Merger Agreement also provides that, without limiting the services generality of its present officers and key employeesthe foregoing, (iv) keep in full force and effect all material insurance policies and (v) maintain, except for matters expressly permitted or cause to be maintained, all facilities in good condition. From the date of contemplated by the Merger Agreement to or as required by applicable law or regulations, NetSuite will not, nor will it permit any of its Subsidiaries to, do any of the Effective Timefollowing without the prior written consent of Parent: • amend or waive NetSuite’s or any of its Subsidiaries’ certificate of incorporation, Terremark is subject to customary operating covenants and restrictionsbylaws or other comparable charter or organizational documents (whether by merger, including restrictions relating to the issuanceconsolidation or otherwise); • declare, saleset aside or pay any dividends on, grantor make any other distributions (whether in cash, disposal stock, property or otherwise) in respect of, pledge or other encumbrance enter into any agreement for the voting of, any capital stock of NetSuite or any of its stockSubsidiaries, voting securities other than dividends and distributions by a direct or equity interestsindirect wholly owned subsidiary of NetSuite to its parent (except distributions under the ESPP in the ordinary course and for distributions resulting from the settlement or exercise of NetSuite Compensatory Awards); redemption• split, purchase combine or acquisition reclassify any capital stock of NetSuite or any of its capital stockSubsidiaries; • except in connection with NetSuite Compensatory Awards or the ESPP, voting securities issue or equity interests; authorize the declaration, setting aside for payment or payment issuance of any dividends other securities in respect of, in lieu of or other distributions; splitin substitution for, combination, subdivision or reclassification shares of any Shares; the amendment or waiver capital stock of any rights under any Company Stock Plans or agreement evidencing a right to acquire Shares or any restricted stock purchase agreement or any similar or related contract; the incurrence, assumption or guarantee of indebtedness or issuance or sale of any debt securities or options, warrants, calls or other rights to acquire any debt securities of Terremark NetSuite or any of its subsidiaries; • purchase, redeem or otherwise acquire any (i) shares of capital stock or voting securities or other Equity Interests (as defined below) of NetSuite or any Subsidiary of NetSuite, (ii) securities of NetSuite or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities or other Equity Interests of NetSuite or any Subsidiary of NetSuite, (iii) options, warrants or other rights or arrangements to acquire from NetSuite or any of its Subsidiaries, or other obligations or commitments of NetSuite or any of its Subsidiaries to issue, any capital stock or other voting securities, ownership interests or Equity Interests in, or any securities convertible into or exchangeable for capital stock or other voting securities, ownership interests or Equity Interests in, NetSuite or any Subsidiary of NetSuite, or (iv) restricted shares, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the salevalue or price of, any capital stock of, or other voting securities, ownership interests or Equity Interests in, NetSuite or any Subsidiary of NetSuite (the items in clauses (i)-(iv), with respect to NetSuite are referred to as “NetSuite Securities,” and with respect to a Subsidiary of NetSuite are referred to as “NetSuite Subsidiary Securities”), except for acquisitions of Shares by NetSuite in satisfaction by holders of NetSuite Compensatory Awards of the applicable exercise price and/or withholding taxes; • take any action that would result in any amendment, modification or change of any term of any indebtedness of NetSuite or any of its Subsidiaries; Table of Contents • issue, deliver, sell, grant, pledge, transfer, subject to any lien or otherwise encumber or dispose of any NetSuite Securities or NetSuite Subsidiary Securities, other than in certain circumstances in connection with NetSuite Compensatory Awards or the ESPP; • amend any term of any NetSuite Security or any NetSuite Subsidiary Security (in each case, whether by merger, consolidation or otherwise); • adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, each with respect to NetSuite or any of its Subsidiaries; • make any capital expenditures or incur any obligations or liabilities in respect thereof in excess of $1,000,000 in the aggregate in any fiscal quarter; • acquire any business, assets or capital stock of any Person or division thereof, whether in whole or in part (and whether by purchase of stock, purchase of assets, merger, consolidation, or otherwise), or any other material assets (other than, in each case, assets acquired in the ordinary course of business consistent with past practice); • sell, lease, sublease, license, mortgagepledge, encumbrance or other disposal or purchase of or subjection transfer, subject to any lien or otherwise dispose of any of its intellectual property, material property assets or material assets; properties except: • pursuant to contracts or commitments in existence as of the making date of certain capital expenditures; the acquisition of equity interests or assets of another person, other than for consideration not in excess of limits specified in the Merger Agreement; making investments, loans, • sales of used equipment in the ordinary course of business consistent with past practice; or advances• certain permitted liens incurred in the ordinary course of business consistent with past practice; entrance into, amendment• take certain actions related to the hiring, termination or modification of the terms of employment or engagement (including compensation) of employees, consultants, contractors and advisors; • write-down any of its material contractsassets, including any of its intellectual property; • make any change in any method of financial accounting principles, method or practices, in each case except for any such change required by GAAP or applicable law or regulations (in each case following consultation with NetSuite’s independent auditor); • repurchase, prepay or incur indebtedness (subject, in certain cases, to certain exceptions for the release financing of ordinary course payables and the accrual of accounts payable in the ordinary course of business consistent with past practice), or make any loans, advances or capital contributions to, or investments in, any other Person (other than to NetSuite or any of its Subsidiaries or accounts receivable and extensions of credit and advances in expenses to employees, in each case in the ordinary course of business consistent with past practice); • agree to any exclusivity, non-competition, most favored nation, or similar provision or covenant restricting NetSuite, any of its Subsidiaries or any of their respective affiliates from competing in any line of business or with any Person or in any area or engaging in any activity or business (including with respect to the development, manufacture, marketing or distribution of their respective products or services), or pursuant to which any benefit or right would be required to be given or lost as a result of so competing or engaging, or which would have any such effect on Parent or any of its affiliates after the Effective Time; • enter into any contract, or relinquish or terminate any contract or other right, in any individual case with an annual value in excess of $50,000 or with a value over the life of the Contract (as defined in the Merger Agreement) in excess of $100,000, other than, in the ordinary course of business consistent with past practice: • entering into software license agreements or the renewal of any person fromexisting software license agreements, modification where NetSuite or waiver any of its Subsidiaries is the licensor or service provider; • entering into service or maintenance contracts pursuant to which NetSuite or any provision of its Subsidiaries is providing services to customers; Table of Contents • entering into non-exclusive distribution, marketing, reselling or consulting agreements that provide for distribution of a product of NetSuite by a third party; or • entering into non-exclusive OEM agreements that are terminable without penalty within twelve months; • take various actions relating to taxes; • institute, pay, discharge, compromise, settle or satisfy (or agree to do any of the preceding with respect to) any claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), in excess of $100,000 in any individual case, other than certain claims, liabilities or obligations previously disclosed or incurred in the ordinary course of business consistent with past practice, provided that the payment, discharge, settlement or satisfaction of such claim, liability or obligation does not include any material obligation (other than the payment of money) to be performed by NetSuite or any of its Subsidiaries following the date of the closing of the Merger; • waive, relinquish, release, grant, transfer or assign any right with a value of more than $100,000 in any individual case except in the ordinary course of business consistent with past practice; • waive any material benefits of, or agree to modify in any adverse respect, or fail to enforce, or consent to any matter with respect to which its consent is required under, any confidentiality, standstill or similar agreementContract to which NetSuite or any of its Subsidiaries is a party; increase • pay any fees and expenses incurred in compensation connection with the transactions contemplated by the Merger Agreement, in excess of current or former directors, officers, employees or consultants; certain tax matters; changes $100,000 in accounting policies; the amendment of Terremark’s charter documents; adoption of a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization; settlement or satisfaction of certain claims, liabilities, or obligations; communications with employees, suppliers, vendors or customers, settlement or compromise of any material litigation or proceeding; failure to take appropriate actions as necessary to prevent the abandonment, loss or impairment of material intellectual property; and the sale, assignment, license, transfer, conveyance, lease, disposal of or encumbrance on intellectual property or technology.aggregate;

Operating Covenants. The Merger Agreement provides that, except as expressly permitted by the Merger Agreement, as required by applicable law or as consented to by Parent in writing, during the period from the date of the Merger Agreement until to the Effective Time, Terremark shallexcept as set forth in GenTek’s disclosure schedule, as expressly required pursuant to the Merger Agreement or unless consented to by Parent in writing (in its sole discretion, except with respect to certain covenants, which consent shall not be unreasonably withheld, delayed or conditioned with respect to certain covenants), GenTek and will cause each of its subsidiaries to shall (i) conduct its business operations in all material respects in the ordinary course of business consistent with past practice, (ii) comply in all material respects use commercially reasonable efforts to keep available the services of the current officers of GenTek and each GenTek subsidiary and preserve the goodwill and current relationships of GenTek and each GenTek subsidiary with all applicable laws customers, suppliers and the requirements of all material contracts, other persons with which GenTek or any GenTek subsidiary has significant business relations and (iii) use commercially reasonable efforts to maintain and preserve substantially intact its business organization and the goodwill organization. 19 Table of those having business relationships with it and retain the services of its present officers and key employees, (iv) keep in full force and effect all material insurance policies and (v) maintain, or cause to be maintained, all facilities in good condition. Contents From the date of the Merger Agreement to the Effective Time, Terremark GenTek is subject to customary operating covenants and restrictions, including restrictions relating to the issuanceamendment of charter documents and bylaws; the amendment or modification of any warrants, sale, grant, disposal of, pledge restricted stock plans or other encumbrance of its stock, voting securities or equity interestsoptions; the redemption, purchase or acquisition of its capital stock, voting securities or equity interests; the declarationissuance, setting aside for payment sale, pledge disposal, grant or payment transfer of any dividends stock, options, warrants or other distributions; split, combination, subdivision or reclassification equity interests of any Shares; the amendment or waiver of any rights under any Company Stock Plans or agreement evidencing a right to acquire Shares or any restricted stock purchase agreement or any similar or related contract; the incurrence, assumption or guarantee of indebtedness or issuance or sale of any debt securities or options, warrants, calls or other rights to acquire any debt securities of Terremark or any of GenTek and its subsidiaries; the sale, transferpledge, leasedisposal, sublease, license, mortgage, transfer or encumbrance or other disposal or purchase of or subjection to any lien of material property or material assets; the making declaration, setting aside or payment of certain dividends or other distributions; the reclassification, combination, split, amendment, redemption or purchase of capital expendituresstock, other equity interests or securities of GenTek; mergers or consolidations; the acquisition of equity interests or assets of another person, other than for consideration not in excess of limits specified in the Merger Agreement; the incurrence or cancellation of indebtedness; making investments, loans, advances or advances; entrance into, amendment, termination or modification of material contractscapital contributions; the release termination, cancellation, transfer or assignment of any person from, modification or waiver GenTek material contract; the making of any provision of, any confidentiality, standstill or similar agreementcertain capital expenditures; increase in compensation of current or former directorsbenefits or xxxxx xxxxxxxxx rights to any director, officers, officer or certain employees or consultantsestablish collective bargaining agreements or waive performance or vesting criteria under GenTek benefits plan; the payment, discharge, settlement or satisfaction of certain tax mattersliabilities, obligations or liens; changes in accounting policies; the amendment of Terremark’s charter documentstax issues; adoption of a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization; settlement or satisfaction of certain claims, liabilities, or obligations; communications with employees, suppliers, vendors or customers, settlement or compromise of any material litigation or proceeding; failure to take appropriate actions as necessary to prevent the abandonment, loss or impairment of material intellectual property; collective bargaining agreements and the salecreation of subsidiaries. In addition to the limitations on the operation of GenTek between the date of the Merger Agreement to the Effective Time set forth above, assignmentthe Merger Agreement requires that GenTek and its subsidiaries enter into agreements with the Purchaser, licensepursuant to which they will lend to the Purchaser or place in escrow all of the cash and cash equivalents on hand of GenTek and its subsidiaries prior to the Acceptance Date (other than certain amounts required to remain at GenTek by the Debt Commitment Letter). As a result of these lending requirements and the operating limitations on GenTek between the date of the Merger Agreement and the Effective Time, transfer, conveyance, lease, disposal GenTek and its subsidiaries will have a finite amount of or encumbrance on intellectual property or technologycash available for certain specified operating purposes prior to the Effective Time.

Operating Covenants. The Merger Agreement provides that, except as expressly permitted by the Merger Agreement, as required by applicable law or as consented to by Parent in writing, during the period from the date of the Merger Agreement until the Effective Timeearlier of the Acceptance Time and the termination of the Merger Agreement pursuant to its terms (the “Pre-Closing Period”), Terremark shall, and will cause each of its subsidiaries to except (i) conduct its business with the written consent of Lilly (which consent will not be unreasonably withheld, conditioned or delayed), (ii) as expressly permitted or required pursuant to the Merger Agreement, or (iii) as required by any applicable law or judgment or by the terms of any contract or employee benefit plan in effect on the date of the Merger Agreement, the businesses of CoLucid shall be conducted in the ordinary course of business and consistent with past practicepractices, (ii) comply in all material respects with all applicable laws and the requirements of all material contracts, (iii) CoLucid shall use its commercially reasonable efforts to maintain and preserve intact its business organization organization, to preserve its relations and the goodwill of those good will with all persons having business relationships dealings with it and CoLucid, to retain the services of its present CoLucid’s business associates, agents, current officers and key employees, to prosecute and maintain intellectual property in the usual course of business and, to comply with applicable laws and the requirements of its contracts. The Merger Agreement also provides that during the Pre-Closing Period, except (ivi) keep in full force and effect all material insurance policies and with the written consent of Lilly (vwhich consent will not be unreasonably withheld, conditioned or delayed), (ii) maintainas expressly permitted or required pursuant to the Merger Agreement, or cause to be maintained, all facilities (iii) as required by any applicable law or judgment or by the terms of any contract or employee benefit plan in good condition. From effect on the date of the Merger Agreement Agreement, CoLucid will not do any of the following without the prior written consent of Lilly: • form any subsidiary or, other than in the ordinary course of business, acquire any assets, securities, properties, rights, interests in any business; • sell, lease, sublease, license, sublicense, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire, transfer or dispose of, or create or incur any lien on, any of CoLucid’s assets, regulatory authorizations, securities, properties, rights, interests or businesses; • amend CoLucid’s certificate of incorporation or bylaws; • declare, set aside, set a record date for, or pay any dividend or other distribution payable in cash, capital stock, property or otherwise (or any combination thereof) with respect to any of CoLucid’s securities or enter into any agreement with respect to the Effective Timevoting of CoLucid’s securities; Table of Contents • purchase, Terremark is subject redeem or otherwise acquire, or authorize or agree to customary operating covenants and restrictionspurchase, including restrictions relating redeem or acquire, any of CoLucid’s securities (except, with respect to any of CoLucid’s securities outstanding under any Equity Plan, in the ordinary course of business or as required by the applicable Equity Plan); • split, combine, subdivide or reclassify any of CoLucid’s securities; • issue, sell, grant, dispose of, pledge, deliver, transfer or otherwise encumber or authorize, propose or agree to the issuance, sale, grant, disposal disposition, pledge, delivery, transfer or encumbrance by CoLucid of, pledge any CoLucid security, except (A) for Shares issuable upon the exercise or other encumbrance conversion of its stock, voting securities or equity interests; redemption, purchase or acquisition of its capital stock, voting securities or equity interests; the declaration, setting aside for payment or payment of any dividends or other distributions; split, combination, subdivision or reclassification of any Shares; the amendment or waiver of any rights under any Company Stock Plans or agreement evidencing a right to acquire Shares or any options and restricted stock purchase agreement units outstanding on the date of the Merger Agreement or any similar or related contract; (B) for the incurrence, assumption or guarantee issuance of indebtedness or issuance or sale of any debt securities or options, warrants, calls or other rights Shares pursuant to acquire any debt securities of Terremark or any of its subsidiaries; the sale, transfer, lease, sublease, license, mortgage, encumbrance or other disposal or purchase of or subjection to any lien of material property or material assets; the making of certain capital expenditures; the acquisition of equity interests or assets of another person, other than for consideration not in excess of limits specified ESPP as contemplated in the Merger Agreement; making investments, loans• commence any new, or advancesextend any existing, offering or purchase period under the ESPP; entrance into• (A) incur, amendmentassume, termination or modification of modify in any material contracts; respect, the release terms of any person fromindebtedness for borrowed money (other than trade payables) in excess of $250,000 in the aggregate or guarantee, modification endorse or waiver otherwise become responsible for any such indebtedness or (B) redeem, repurchase, prepay, defease or cancel any indebtedness for borrowed money, other than as required in accordance with the terms of the contract evidencing such indebtedness; • except as required by law or any provision ofemployee benefit plan as in effect on the date of the Merger Agreement, (A) grant or increase the severance or termination pay to any confidentiality, standstill or similar agreement; increase in compensation of current or former directorsdirector, officersemployee, employees agent or consultants; certain tax matters; changes in accounting policies; consultant of CoLucid, (B) execute any employment, consultancy, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any such director, employee, agent or consultant of CoLucid, (C) increase the amendment benefits payable beyond the level of Terremark’s charter documents; adoption any existing severance or termination pay practices or employment agreements, (D) increase the compensation, bonus or other benefits of a any current or former director, employee, agent or consultant of CoLucid, (E) adopt, enter into or establish any new employee benefit plan or agreement that would be an employee benefit plan if it were in existence on the date of the Merger Agreement, or amend in any material respect any existing employee benefit plan, (F) provide for the grant of options, restricted stock units or any other equity-based compensation awards, (G) accelerate the payment, right to payment, funding or vesting of any compensation or benefits, (H) lend or advance any money or other property to any present or former director or employee of CoLucid, (I) hire any person for employment with CoLucid, or (J) enter into any collective bargaining agreement or other labor agreement; • make, change or rescind any material tax election, change any annual tax accounting period, adopt or change any material method of tax accounting, enter into any material closing agreement with respect to any tax, surrender any right to claim a material tax refund, settle or compromise any material tax claim, audit or assessment, or consent to any waiver of the statute of limitations period applicable to any material tax or material tax return; • agree to or otherwise settle, compromise, release, assign or otherwise resolve in whole or in part any action for an amount of $250,000 or more (excluding any amounts paid or reimbursed by any insurance policy) or any of its obligations or liabilities in excess of such amount and CoLucid shall not settle any action (regardless of the amount involved) if any such settlement would impose any material obligation or restriction on CoLucid from time to time or on CoLucid’s ability to own or operate any of its assets, licenses, operations, rights, product lines, businesses or interests therein or require any material changes to the business of CoLucid from time to time; • engage in any transaction or series of transactions with any Affiliate that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act of 1933, without regard to any monetary thresholds therein; • make or commit to make capital expenditures other than in accordance with CoLucid’s capital expenditure budget; • make any loans, advances or capital contributions in excess of $250,000 in the aggregate; Table of Contents • enter into any agreement, arrangement or commitment that materially limits or otherwise restricts CoLucid from time to time from engaging or competing in any line of business or in any geographic area or otherwise enter into any agreements, arrangements or commitments imposing material changes or restrictions on its assets, operations or business; • enter into any material lease or sublease of real property (whether as lessor, sublessor, lessee or sublessee) or materially modify, materially amend, terminate or fail to exercise any right to renew CoLucid’s current lease; • materially change its accounting methods, principles or practices, other than as required by GAAP or applicable law or regulation; • take or fail to take any action that would reasonably be expected to result in any of the Offer Conditions not being satisfied or prevent or materially delay or impede the consummation of the Offer, the Merger, and other transactions contemplated by the Merger Agreement, except as permitted under the no solicitation and superior proposal provisions of the Merger Agreement described below; • adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, merger, consolidation recapitalization or other reorganization; settlement • except as provided in CoLucid’s 2017 budget, (A) enter into any agreement that would constitute a Company Material Contract (as defined in the Merger Agreement) if it were in existence on the date hereof, (B) terminate, amend, restate or satisfaction supplement any Company Material Contract or (C) waive, release or assign any rights or claims under any Company Material Contract; • fail to keep in full force and effect all insurance policies maintained by CoLucid, other than such policies that expire by their terms or changes to such made in the ordinary course of certain claims, liabilitiesbusiness; • participate in any scheduled meetings or teleconferences with, or obligationscorrespond in writing, communicate or consult with the FDA or any similar governmental authority without providing Lilly prior written notice and, within 24 hours, the opportunity to consult with CoLucid with respect to such correspondence, communication or consultation; communications • with employeesrespect to Company Intellectual Property (as defined in the Merger Agreement), suppliers(A) sell, vendors or customers, settlement or compromise of any material litigation or proceeding; failure to take appropriate actions as necessary to prevent the abandonment, loss or impairment of material intellectual property; and the sale, assignmentassign, license, transfersublicense, conveyanceencumber, leaseimpair, disposal abandon, fail to diligently maintain, transfer or otherwise dispose of any of CoLucid’s right, title or encumbrance on intellectual property interest in any Company Intellectual Property, (B) extend, amend, waive, cancel or technologymodify any rights in or to the Company Intellectual Property, (C) fail to diligently prosecute the patent applications owned by CoLucid or (D) divulge, furnish to or make accessible any trade secrets within Company Intellectual Property to any third party who is not subject to an enforceable written agreement to maintain the confidentiality of such trade secrets; or • authorize, approve, agree, commit or offer to take any of the actions precluded by the foregoing.

Operating Covenants. The Merger Agreement provides that, except as expressly permitted by the Merger Agreement, as required by applicable law or as consented to by Parent in writing, during the period from the date of the Merger Agreement until to the Effective TimeTime or the earlier termination of the Merger Agreement, Terremark except as contemplated by the Merger Agreement (including in the Company’s disclosure schedules to the Merger Agreement) or as required by law, and unless Parent otherwise consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed), O’Charley’s shall, and will shall cause each of its subsidiaries to (i) to, conduct its business operations in the ordinary course consistent with past practice, (ii) comply in all material respects with all applicable laws and and, to the requirements of all material contractsextent consistent therewith, (iii) use its commercially reasonable efforts to maintain and to: • preserve intact in all material respects its business organization organization; • preserve its assets, rights and the goodwill of those having business relationships with it properties in good repair and condition; • retain the services of its present officers current officers, employees and key employeesconsultants; and • preserve the goodwill and relationship of O’Charley’s and each of its subsidiaries with franchisees, (iv) keep in full force customers, suppliers, licensors, licensees, lessors and effect all other persons with which it has material insurance policies and (v) maintain, or cause to be maintained, all facilities in good conditionbusiness dealings. From the date of the Merger Agreement to the Effective Time, Terremark O’Charley’s (and each of its subsidiaries) is subject to customary operating covenants and restrictions, including restrictions relating to: • amendments to the issuance, sale, grant, disposal of, pledge its charter or other encumbrance of its stock, voting securities or equity interestsbylaws; redemption, purchase or acquisition of its capital stock, voting securities or equity interests; the declaration, • setting aside for payment or payment of any dividends or other distributions; • the adjustment, split, combination, subdivision or reclassification of its capital stock; • the repurchase, redemption or other acquisition of its capital stock or other equity interests; • the issuance, sale, grant, disposition, pledge or other encumbrance of its stock or other securities, or changes to its capital structure; • any Sharesmerger or consolidation with a third party; • the amendment or waiver acquisition of any rights under any Company Stock Plans equity interests in or agreement evidencing a right to acquire Shares or any restricted stock purchase agreement or any similar or related contract; the incurrence, assumption or guarantee of indebtedness or issuance or sale material assets of any debt securities or optionsthird party, warrants, calls or other rights to acquire and certain investments in any debt securities of Terremark or any of its subsidiariesthird party; • the sale, transfer, assignment, abandonment, lease, sublease, license, mortgageguarantee, encumbrance or other disposal disposition or purchase of or subjection to any lien encumbrance of material property properties, rights, assets, product lines or material assetsbusinesses; • loans or capital contributions; • the making incurrence, prepayment or other acquisition or modification of indebtedness; • certain capital expenditures; • the acquisition cancellation of equity interests any material debts owed to it; Table of Contents • taking certain actions with respect to employment and employee compensation and benefits; • the settlement or assets release of another person, other than for consideration not in excess of limits specified in the Merger Agreementpending or threatened claims; making investments, loans• entry into, or advances; entrance intomodification or termination of, amendment, termination or modification certain types of material contractscontracts and the waiver, delay, release or assignment of material rights; the release of any person from, modification or waiver of any provision of, any confidentiality, standstill or similar agreement• intellectual property rights; increase in compensation of current or former directors, officers, employees or consultants; certain • tax matters; • changes in accounting policiesmethods or practices; the amendment of Terremark’s charter documents; adoption of a plan or agreement of complete or partial • liquidation, dissolution, consolidation, restructuring, recapitalization, merger, consolidation recapitalization or other reorganization; settlement • deferment of payment of accounts payable; • issuance of coupons, gift certificates or satisfaction complimentary rights for dining; • material increases or decreases to inventory; • the adoption of certain claims, liabilities, any “shareholder rights plan,” “poison pill” or obligationssimilar arrangement; communications • failure to maintain in full force and effect material insurance policies consistent with employees, suppliers, vendors past practice; • changes to its fiscal year; • new lines of business; • the implementation or customers, settlement or compromise announcement of any material litigation reductions in labor force, mass layoffs or proceedingplant closings; failure to take appropriate actions as necessary to prevent the abandonment, loss • early retirement programs or impairment new severance programs or policies; • entry into agreements with certain types of material intellectual propertyobligations or restrictions; and • amendment or modification of the sale, assignment, license, transfer, conveyance, lease, disposal letter of engagement of Evercore or encumbrance on intellectual property or technologythe engagement of any other financial advisor.

Operating Covenants. The Merger Agreement provides that, except as expressly permitted by Pursuant to the Merger Agreement, as required by applicable law or as consented to by Parent in writing, during the period from the date of the Merger Agreement until the Effective Time, Terremark shallOPAY will, and will cause each of its subsidiaries subsidiary to (i) conduct unless otherwise required by applicable law, consented to in writing in advance by ACI or expressly permitted or required by the Merger Agreement or as set forth in the disclosure schedules to the Merger Agreement), carry on its business in the ordinary course of business consistent with past practice, (ii) comply in all material respects with all applicable laws and the requirements of all material contracts, (iii) use commercially reasonable efforts to maintain preserve (a) the current relationships of OPAY and preserve its subsidiary with each of their respective customers, suppliers and other business relationships, (b) substantially intact its respective business organization organizations and will not, among other things: • amend OPAY’s certificate of incorporation or by-laws; • except as otherwise permitted in the goodwill of those having business relationships with it and retain Merger Agreement, issue, deliver, sell, pledge or encumber, or authorize, propose or agree to the services issuance, delivery, sale, pledge or encumbrance of, any shares of its present officers and key employees, (iv) keep in full force and effect all material insurance policies and (v) maintaincapital stock, or cause securities convertible into or exchangeable for, or options, warrants, calls, Table of Contents commitments or rights of any kind to be maintainedacquire, all facilities in good condition. From any shares of any class or series of its capital stock (other than pursuant to the exercise of OPAY’s existing stock options, RSUs, warrants, conversion rights and other contractual rights existing as of the date of the Merger Agreement and set forth in the disclosure schedules to the Effective TimeMerger Agreement); • declare, Terremark is subject set aside, make or pay any dividend or distribution with respect to customary operating covenants and restrictionsany of its capital stock (other than dividends paid by OPAY’s subsidiary to OPAY), including restrictions relating or enter into any agreement with respect to the issuance, sale, grant, disposal of, pledge or other encumbrance of its stock, voting securities or equity interests; redemption, purchase or acquisition of its capital stock; • reclassify, voting securities combine, split, subdivide or redeem, purchase or otherwise acquire any of its capital stock or other equity interests, except pursuant to the exercise or settlement of OPAY’s existing stock options, RSUs, warrants, conversion rights, employee severance, retention, termination, change of control and other contractual rights existing on the date of the Merger Agreement and set forth in the disclosure schedules to the Merger Agreement; • acquire all or any portion of the declarationassets, setting aside for payment business, properties or payment shares of stock or other securities of any dividends other person other than the purchase of assets and properties in the ordinary course of business consistent with past practice and for consideration that is individually not in excess of $1 million or, in the aggregate, not in excess of $5 million for acquisitions by OPAY and its subsidiary taken as a whole; • incur any indebtedness for borrowed money or other distributions; split, combination, subdivision or reclassification of any Shares; the amendment or waiver of any rights under any Company Stock Plans or agreement evidencing a right to acquire Shares or any restricted stock purchase agreement or any similar or related contract; the incurrence, assumption or guarantee of indebtedness or issuance or sale of issue any debt securities or optionsassume, warrantsguarantee or endorse, calls or otherwise become responsible for the obligations of any third party (other rights than OPAY’s subsidiary) for borrowed money, except (1) indebtedness owing by OPAY’s subsidiary to acquire OPAY, (2) indebtedness incurred to refinance any existing indebtedness in an amount not to exceed and on terms no less favorable in the aggregate than such existing indebtedness, and (3) indebtedness for borrowed money incurred with respect to permitted acquisitions or capital expenditures; • grant any lien in any of its material assets to secure any indebtedness for borrowed money, except as otherwise permitted by the Merger Agreement; • issue any debt securities or assume, endorse, or otherwise become responsible for, the obligations of Terremark any third party, or make any of its subsidiaries; the sale, transfer, lease, sublease, license, mortgage, encumbrance loans or other disposal or purchase of or subjection to any lien of material property or material assets; the making of certain capital expenditures; the acquisition of equity interests or assets of another personadvances, other than (1) loans or advances to OPAY’s subsidiary and (2) advances of travel and other out-of-pocket expenses to directors, officers and employees in the ordinary course of business consistent with past practices; • authorize or make any commitment with respect to capital expenditures that exceeds OPAY’s capital expenditures budget for consideration fiscal year 2014 by $250,000 individually or $500,000 in the aggregate; • enter into any new material line of business outside of its existing business segments; • adopt or amend any existing OPAY benefit plans, increase the compensation or fringe benefits of any OPAY or any OPAY’s subsidiary’s director, officer or employee, pay, fund or accelerate the vesting of any benefit not provided for by any existing benefit plans, except, in excess each case, (1) as reasonably necessary to comply with applicable law to address the requirements of limits specified the Merger Agreement or the terms of existing contracts disclosed in the disclosure schedules to the Merger Agreement or (2) in connection with employees who are not directors or executive officers (as such term is used in Rule 3b-7 of the Exchange Act) in the ordinary course of business consistent with past practice; • pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than (1) performance of contractual obligations in accordance with their terms, (2) payment, discharge, settlement or satisfaction in the ordinary course of business consistent with past practice, or (3) payment, discharge, settlement or satisfaction in accordance with their terms, of claims, liabilities or obligations that have been (i) disclosed in the most recent financial statements (or the notes thereto) of OPAY included in OPAY’s SEC filings filed prior to September 20, 2013 or contemplated by documents made available to ACI prior to September 20, 2013 or (ii) incurred since the date of such SEC filings in the ordinary course of business consistent with past practice; Table of Contents • except as otherwise permitted in the Merger Agreement; making investments, loans, adopt or advances; entrance into, amendment, termination or modification of material contracts; the release of any person from, modification or waiver of any provision of, any confidentiality, standstill or similar agreement; increase in compensation of current or former directors, officers, employees or consultants; certain tax matters; changes in accounting policies; the amendment of Terremark’s charter documents; adoption of enter into a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, merger, consolidation recapitalization or other reorganization; settlement reorganization of OPAY or satisfaction of certain claimsits subsidiary (other than the Merger). • dispose of, liabilities, or obligations; communications with employees, suppliers, vendors or customers, settlement or compromise of any material litigation or proceeding; failure to take appropriate actions as necessary to prevent the abandonment, loss or impairment of material intellectual property; and the sale, assignment, license, transfer, conveyancesell, lease, disposal license or otherwise transfer, any of OPAY’s or encumbrance on its subsidiary’s material assets, properties, interests or businesses, other than (1) disposing of, selling, leasing or otherwise transferring obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice or (2) licensing OPAY owned intellectual property on a non-exclusive basis in the ordinary course of business consistent with past practice; • enter into, renew, amend or technologymodify in any material respect or terminate any material contract (as defined in the Merger Agreement) or otherwise waive, release or assign any material rights, claims or benefits of OPAY or its subsidiary; provided, however, OPAY and its subsidiary are not prohibited or precluded from (1) negotiating and/or renewing in the ordinary course of business consistent with past practice any material contracts which expire upon their terms or (2) entering into any customer or supplier contracts in the ordinary course of business consistent with past practice, regardless of whether or not any such contract would constitute a material contract for purposes of the Merger Agreement; • make any material change in its methods of accounting, except as required by concurrent changes in GAAP or in Regulation S-X of the Exchange Act; • make or change any material tax election, adopt or change any material tax method of accounting, consent to any extension or waiver of the statute of limitations period applicable to any material tax claim, audit or assessment, change any annual tax accounting period, enter into any tax allocation agreement, tax sharing agreement or tax indemnity agreement, file any amended tax return that is material or settle or compromise any material tax claim, audit or assessment; or • knowingly commit or agree to take any of the foregoing actions or any action which would result in any of the conditions to the Offer or the Merger not being satisfied.

Operating Covenants. The Merger Agreement provides that, except as expressly required or permitted by the Merger Agreement, as required by applicable law law, or with the prior written consent of Parent (which consent will not be unreasonably conditioned, withheld or delayed), or as consented to by Parent set forth in writingPart 5.2 of the Company Disclosure Schedule, during the period from the date of the Merger Agreement until the earlier of the Effective TimeTime or the termination of the Merger Agreement pursuant to its terms, Terremark Miramar will use its commercially reasonable efforts to ensure that each Acquired Corporation conducts in all material respects its business and operations in its ordinary course of business consistent with past practices and (ii) Miramar shall promptly notify Parent of (A) any knowledge of any notice from any Person alleging that the Consent of such Person is or may be required in connection with any of the Transactions, and (B) any Legal Proceeding commenced, or, to its knowledge threatened, relating to or involving any Acquired Corporation that relates to the consummation of the Transactions. Additionally, Miramar shall, and will shall cause each of its subsidiaries to (i) conduct its business in the ordinary course consistent with past practiceto, (ii) comply in all material respects with all applicable laws and the requirements of all material contracts, (iii) use commercially reasonable efforts to maintain and preserve intact the material components of its current business organization and the goodwill of those having business relationships with it and retain organization, including keeping available the services of its present current officers and key employeesemployees and maintaining their respective relations and good will with all material suppliers, governmental bodies and other material business relations. In addition, during the same period, except as required or permitted by the Merger Agreement, as required by applicable law, or otherwise with the prior written consent of Parent, Miramar will not, and will not permit any of its subsidiaries to, take certain actions, including the following: • establish a record date for, declare, accrue, set aside or pay any dividend or make any other distribution in respect of any Miramar securities, or repurchase, redeem or otherwise reacquire any Miramar securities, or any rights, warrants or options to acquire any such securities; • split, combine, subdivide or reclassify any shares of Miramar’s capital stock (including the Shares) or other equity interests; • sell, issue, grant, deliver, pledge, transfer, encumber or authorize the issuance, sale, delivery, pledge, transfer, encumbrance or grant of (A) any capital stock, equity interest or other security, (ivB) keep in full force and effect all material insurance policies and (v) maintainany option, call, warrant, restricted securities or right to acquire any capital stock, equity interest or other security, or cause (C) any instrument convertible into or exchangeable for any capital stock, equity interest or other security (except that Miramar may issue Shares as required to be maintained, all facilities in good condition. From issued upon the exercise or vesting of options or warrants outstanding as of the date of the Merger Agreement Agreement); • except as contemplated by Section 6.3 of the Merger Agreement, (A) establish, adopt, terminate or amend any employee plan (except to the Effective Timeextent required by applicable law), Terremark is subject to customary operating covenants and restrictions(B) amend or waive any of its rights under, including restrictions relating to or accelerate the issuancevesting under, saleany provision of any of the employee plans (except as required by the Merger Agreement), grant(C) grant any increase in compensation, disposal of, pledge bonuses or other encumbrance benefits other than in the ordinary course of its stockbusiness consistent with past practice or (D) pay any severance, voting securities retention or retirement benefits to any current or former employees, other than vested benefits (including benefits that become vested as a result of the Transactions) required by the terms of an employee plan or (E) grant any equity interestsor equity-based compensation to any employees; redemption• make any contributions (excluding contributions which are employee deferrals of eligible earnings under Xxxxxxx’s 401(k) plan) to Miramar’s 401(k) plan other than as required under the terms of such plan as in effect on the date of the Merger Agreement, purchase or make any contribution to Xxxxxxx’s 401(k) plan in Shares; • hire, promote or terminate any employee other than in the ordinary course of business consistent with past practice; • amend or permit the adoption of any amendment to Xxxxxxx’s certificate of incorporation or bylaws or other charter or organizational documents; • form any subsidiary, acquire (by merger, consolidation or acquisition of its capital stock, voting securities stock or equity interests; the declaration, setting aside for payment or payment otherwise) any businesses of any dividends other Person or any equity interest in any other Entity or enter into any joint venture, partnership, limited liability corporation or similar arrangement; • make or authorize any capital expenditure (except that Miramar may make any capital expenditure that does not exceed $50,000 individually and $100,000 in the aggregate during any fiscal quarter); • acquire, lease, license, sublicense, pledge, sell or otherwise dispose of, divest or spin-off, abandon, waive, relinquish or permit to lapse (other than any patent expiring at the end of its statutory term), transfer, assign, guarantee, exchange or swap, mortgage or otherwise encumber (including pursuant to a sale-leaseback transaction or securitization) or subject to any material Encumbrance (other than Permitted Encumbrances) any material right or other distributions; split, combination, subdivision material asset or reclassification property of any Sharesof the Acquired Corporations, including without limitation any Company IP owned by any Acquired Corporation, except certain instances; • lend money or make capital contributions or advances to or make investments in, any Person, or incur or guarantee any Indebtedness (except for advances to employees and consultants for travel and other business related expenses in the amendment ordinary course of business consistent with past business practice and in compliance with Xxxxxxx’s policies related thereto); • excluding any renewal of a material contract on terms no less favorable in all material respects in the aggregate to the Acquired Corporations, or waiver with respect to a revenue generating contract with a customer in the ordinary course of business, amend or modify in any material respect, waive any rights under, terminate, replace or release, settle or compromise any material claim, liability or obligation under any Company Stock Plans material contract or enter into any contract which if entered into prior to the date hereof would have been a material contract; • other than in the ordinary course of business, (A) make any change to any accounting method or accounting period used for Tax purposes (or request such a change); (B) make or change any material tax election; (C) file any income or other material tax return other than on a basis consistent with past practice; (D) file an amended tax return; (E) enter into a closing agreement evidencing with any governmental body regarding any tax; (F) settle, compromise or consent to any material tax claim or assessment or surrender a right to acquire Shares a material tax refund; or (G) waive or extend the statute of limitations with respect to any restricted stock purchase agreement income or material tax other than pursuant to extensions of time to file a tax return obtained in the ordinary course of business; • commence any similar legal proceeding, except in certain instances; • settle, release, waive or related contract; the incurrence, assumption or guarantee of indebtedness or issuance or sale of compromise any debt securities or options, warrants, calls legal proceeding or other rights to acquire any debt securities of Terremark claim (or any of its subsidiaries; the sale, transfer, lease, sublease, license, mortgage, encumbrance threatened legal proceeding or other disposal or purchase of or subjection to any lien of material property or material assets; the making of certain capital expenditures; the acquisition of equity interests or assets of another personclaim), other than for consideration any legal proceeding relating to a breach of the Merger Agreement or any other agreements contemplated hereby or pursuant to a settlement that does not relate to any of the Transactions; • correspond, communicate or consult with (in excess each case, at any planned meetings or telephonic discussions involving substantive matters, or through written correspondence) the FDA or similar governmental body or any governmental body having jurisdiction over any of limits specified Xxxxxxx’s pending clinical trials, except in the Merger Agreementordinary course of business, without, to the extent reasonable practicable, providing Parent with prior written reasonable advance notice and the opportunity to consult with Miramar with respect to such correspondence, communication or consultation • publicly disclose any clinical data relating to or resulting from Xxxxxxx’s pending clinical trials or any analysis or work product created by or on behalf of Miramar based in whole or in part on such clinical data; making investments, loans, • enter into any collective bargaining agreement or advancesother agreement with any labor organization; entrance into, amendment, termination • adopt or modification of material contracts; the release of implement any person from, modification or waiver of any provision of, any confidentiality, standstill stockholder rights plan or similar agreementarrangement; increase in compensation • enter into any new line of current or former directors, officers, employees or consultantsbusiness; certain tax matters; changes in accounting policies; the amendment of Terremark’s charter documents; adoption of • adopt a plan or agreement of complete or partial liquidationliquidation or dissolution, dissolutionmerger, consolidation, restructuring, recapitalization, merger, consolidation recapitalization or other reorganizationreorganization of the Acquired Corporations; settlement or satisfaction of certain claims, liabilities• authorize any of, or obligations; communications with employeesagree or commit to take, suppliers, vendors or customers, settlement or compromise any of any material litigation or proceeding; failure to take appropriate actions as necessary to prevent the abandonment, loss or impairment of material intellectual property; and the sale, assignment, license, transfer, conveyance, lease, disposal of or encumbrance on intellectual property or technologyforegoing actions.