CAUSE PARENT AND ITS SUBSIDIARIES TO, USE COMMERCIALLY REASONABLE EFFORTS
TO PRESERVE INTACT THE PARENT BUSINESS AND ITS RELATIONSHIP WITH ITS MATERIAL
CUSTOMERS, SUPPLIERS, CREDITORS AND KEY EMPLOYEES (IT BEING UNDERSTOOD THAT NO
INCREASES IN ANY COMPENSATION OR ANY INCENTIVE COMPENSATION OR SIMILAR
COMPENSATION SHALL BE REQUIRED IN RESPECT THEREOF EXCEPT TO THE EXTENT SUCH
INCREASE IS REQUIRED IN THE ORDINARY COURSE OF BUSINESS). WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, DURING THE PERIOD FROM THE DATE HEREOF TO THE
CLOSING, EXCEPT AS OTHERWISE CONTEMPLATED BY THIS AGREEMENT OR ANY ANCILLARY
AGREEMENT OR AS SELLER SHALL OTHERWISE CONSENT (WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD AND, PROVIDED, THAT SELLER SHALL RESPOND AS SOON AS
REASONABLY PRACTICABLE BUT IN NO EVENT LATER THAN FIVE BUSINESS DAYS FOLLOWING
RECEIPT OF BUYER'S WRITTEN REQUEST FOR SUCH RESPONSE) OR AS SET FORTH IN THE
APPLICABLE SECTIONS OF SCHEDULE 5.3 OF THE BUYER DISCLOSURE SCHEDULE, BUYER
SHALL NOT, AND SHALL CAUSE PARENT AND EACH ITS SUBSIDIARIES NOT TO:
(A)
SELL, LEASE, LICENSE, TRANSFER OR DISPOSE OF ANY ASSETS (IT BEING
UNDERSTOOD THAT FOR PURPOSES OF THIS SECTION 5.3(A), ASSETS DO NOT INCLUDE
EQUITY SECURITIES OF PARENT OR CASH OR CASH EQUIVALENTS) FOR CONSIDERATION NOT
CONSISTING PRIMARILY OF SYSTEMS OTHER THAN (I) IN THE ORDINARY COURSE OF
BUSINESS, (II) PURSUANT TO THE FRIENDCO TRANSACTION OR (III) ASSETS WHICH, IN
THE AGGREGATE, THE FAIR MARKET VALUE OF THE TOTAL CONSIDERATION THEREFOR WOULD
NOT EXCEED THE AMOUNT SPECIFIED ON SCHEDULE 5.3(A)(III) OF THE BUYER DISCLOSURE
SCHEDULE;
(B)
DECLARE, SET ASIDE OR PAY ANY DIVIDEND OR DISTRIBUTION ON ANY
SHARES OF PARENT CAPITAL STOCK OR OTHER EQUITY SECURITY IN PARENT OR ANY OF ITS
SUBSIDIARIES OTHER THAN DIVIDENDS OR DISTRIBUTIONS BY ANY SUBSIDIARY OF PARENT
TO PARENT OR ANOTHER SUBSIDIARY OF PARENT;
(C)
ENTER INTO ANY TRANSACTION (OTHER THAN PURSUANT TO ANY CONTRACT IN
EFFECT AS OF THE DATE HEREOF) HAVING THE INTENDED EFFECT OF BENEFITING ANY
AFFILIATE OF PARENT (OTHER THAN ANY SUBSIDIARY OF PARENT) AT THE EXPENSE OF
PARENT OR ANY SUBSIDIARY OF PARENT IN A MANNER THAT WOULD DEPRIVE PARENT OR ANY
SUCH SUBSIDIARY OF THE BENEFIT THEY WOULD OTHERWISE HAVE OBTAINED IF THE
TRANSACTION WERE TO HAVE BEEN EFFECTED ON TERMS THAT WERE ON AN ARM'S LENGTH
BASIS OR ANY TRANSACTION THAT DOES NOT SATISFY THE REQUIREMENTS OF ARTICLE VI OF
PARENT'S BYLAWS, AS IN EFFECT AS OF THE DATE HEREOF;
(D)
EXCEPT PURSUANT TO SECTION 5.4, AMEND THE CERTIFICATE OF
INCORPORATION, BYLAWS OR OTHER ORGANIZATIONAL DOCUMENTS OF PARENT IN A MANNER
ADVERSE TO SELLER OR ITS STAKEHOLDERS;
99
(E)
ISSUE ANY SHARES OF PARENT CAPITAL STOCK OR OTHER EQUITY
SECURITIES OF PARENT OTHER THAN (I) EQUITY SECURITIES ISSUED FOLLOWING THE DATE
HEREOF ON ARM'S-LENGTH TERMS FOR CONSIDERATION DETERMINED IN GOOD FAITH BY
PARENT'S BOARD OF DIRECTORS OR ANY COMMITTEE THEREOF TO BE FAIR, INCLUDING,
SUBJECT TO SECTION 5.3(C), EQUITY SECURITIES ISSUED TO TWX OR ANY OF ITS
AFFILIATES (OTHER THAN PARENT OR ITS WHOLLY OWNED SUBSIDIARIES), AND (II) EQUITY
SECURITIES ISSUED FOLLOWING THE