Evans & Sutherland Computer (ESCC)

(i)    From the date hereof through the Closing Date, other than with the prior written consent of Buyer or as expressly contemplated by this Agreement, Seller will, and will cause Seller Subsidiary to, conduct the Business only in the ordinary course consistent with past practices.

(ii)   From the date hereof through the Closing Date, other than with the prior written consent of Buyer or as expressly contemplated by this Agreement, Seller will, and will cause Seller Subsidiary to, use its commercially reasonable efforts to (A) preserve its business organization related to the Business intact, (B) retain the services of its present officers, employees and agents Related to the Business and (C) maintain good business relationships with third parties having business dealings with the Business.

(iii) From the date hereof through the Closing Date, Seller will not, and will cause Seller Subsidiary not to, without the prior written consent of Buyer, to the extent Related to the Business:

(A)  make any single capital expenditure in excess of $100,000, or a series of related capital expenditures in excess of $375,000 in the aggregate;

(B)   (1) enter into any employment or consulting agreement (other than (x) any consulting agreement to which an international sales representative is not a party and pursuant to which less than $50,000 is potentially payable over the life of the agreement or (y) any employment agreement entered into in the ordinary course of business consistent with past practices in the United Kingdom pursuant to which Buyer will be liable for costs not exceeding $100,000 per annum) with or for the benefit of any of their current or prospective employees or agents, or (2) pay any pension, retirement allowance or other material employee benefit not required by any Plan, Contract, agreement or arrangement to any of such employees or agents;

(C)   sell, assign, lease or transfer any of its material Assets, other than inventories of obsolete equipment in the ordinary course of business consistent with past practices and licensing and other dispositions of Intellectual Property in the ordinary course of business consistent with past practices;

(D)  make, incur, assume, create or guarantee any loan or make any advance (other than the making of employee advances for travel and entertainment in the ordinary course of business consistent with past practices) to or investment in any Person (other than in respect of amounts paid for products or services);

(E)   subject any of its assets or properties to any Lien or permit any of its assets or properties to be subjected to any Lien, other than Permitted Liens;

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(F)   waive or release any rights or claims of material value, including rights or claims under any Material Contract, or waive or release any material rights or material claims against any Affiliate or employee of Seller or Seller Subsidiary;

(G)  other than in the ordinary course of business consistent with past practices, change or modify any of the Business’s credit, collection or payment policies, procedures or practices, including acceleration of collections of receivables, failure to make or delay in making collections of receivables (whether or not past due), acceleration of payment of payables or other Liabilities or failure to pay or delay in payment of payables or other Liabilities;

(H)  engage in any discount activity with customers of the Business or other activity intended to accelerate to pre-Closing periods sales that would otherwise in the ordinary course of business consistent with past practices be reasonably expected to occur in post-Closing periods;

(I)    acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or Person, or division, operating unit or product line thereof;

(J)    revalue any of the Assets other than changes in reserves in the ordinary course of business consistent with past practices, or as a result of depreciation and amortization, in each case in accordance with GAAP;

(K)  purchase any real property or, other than Leases set forth on Schedule 6.9(b), enter into any Lease;

(L)   settle or compromise any Action other than the Actions set forth on Schedule 2.1(b)(ix); or

(M)  enter into any agreement or commitment (other than the Transaction Documents) to take any of the types of action described in subclauses (A) through (L) of this Section 8.1(a)(iii).

(iv)  From the date hereof through the Closing Date, Seller will not, and will cause Seller Subsidiary not to, without the prior written consent of Buyer (which consent shall not be unreasonably withheld), to the extent Related to the Business:

(A)  other than in the ordinary course of business consistent with past practices, enter into any Contract which would be a Material Contract if it were in existence on the date hereof;

(B)   other than in the ordinary course of business consistent with past practices, amend in any material respect or terminate (other than by completion thereof) any existing Material Contract;

(C)   enter into any Material Contract with a value in excess of $2,000,000;

(D)  amend in any material respect or terminate (other than by completion thereof) any existing Material Contract with a value in excess of $2,000,000; or

(E)   except as set forth on Schedule 8.1(a)(iv)(E), enter into any customer Contract for the sale of laser projectors for use in connection with the Business;

(i)    From the date hereof through the Closing Date, other than with the prior written consent of Buyer or as expressly contemplated by this Agreement, Seller will, and will cause Seller Subsidiary to, conduct the Business only in the ordinary course consistent with past practices.

(ii)   From the date hereof through the Closing Date, other than with the prior written consent of Buyer or as expressly contemplated by this Agreement, Seller will, and will cause Seller Subsidiary to, use its commercially reasonable efforts to (A) preserve its business organization related to the Business intact, (B) retain the services of its present officers, employees and agents Related to the Business and (C) maintain good business relationships with third parties having business dealings with the Business.

(iii) From the date hereof through the Closing Date, Seller will not, and will cause Seller Subsidiary not to, without the prior written consent of Buyer, to the extent Related to the Business:

(A)  make any single capital expenditure in excess of $100,000, or a series of related capital expenditures in excess of $375,000 in the aggregate;

(B)   (1) enter into any employment or consulting agreement (other than (x) any consulting agreement to which an international sales representative is not a party and pursuant to which less than $50,000 is potentially payable over the life of the agreement or (y) any employment agreement entered into in the ordinary course of business consistent with past practices in the United Kingdom pursuant to which Buyer will be liable for costs not exceeding $100,000 per annum) with or for the benefit of any of their current or prospective employees or agents, or (2) pay any pension, retirement allowance or other material employee benefit not required by any Plan, Contract, agreement or arrangement to any of such employees or agents;

(C)   sell, assign, lease or transfer any of its material Assets, other than inventories of obsolete equipment in the ordinary course of business consistent with past practices and licensing and other dispositions of Intellectual Property in the ordinary course of business consistent with past practices;

(D)  make, incur, assume, create or guarantee any loan or make any advance (other than the making of employee advances for travel and entertainment in the ordinary course of business consistent with past practices) to or investment in any Person (other than in respect of amounts paid for products or services);

(E)   subject any of its assets or properties to any Lien or permit any of its assets or properties to be subjected to any Lien, other than Permitted Liens;

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(F)   waive or release any rights or claims of material value, including rights or claims under any Material Contract, or waive or release any material rights or material claims against any Affiliate or employee of Seller or Seller Subsidiary;

(G)  other than in the ordinary course of business consistent with past practices, change or modify any of the Business’s credit, collection or payment policies, procedures or practices, including acceleration of collections of receivables, failure to make or delay in making collections of receivables (whether or not past due), acceleration of payment of payables or other Liabilities or failure to pay or delay in payment of payables or other Liabilities;

(H)  engage in any discount activity with customers of the Business or other activity intended to accelerate to pre-Closing periods sales that would otherwise in the ordinary course of business consistent with past practices be reasonably expected to occur in post-Closing periods;

(I)    acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or Person, or division, operating unit or product line thereof;

(J)    revalue any of the Assets other than changes in reserves in the ordinary course of business consistent with past practices, or as a result of depreciation and amortization, in each case in accordance with GAAP;

(K)  purchase any real property or, other than Leases set forth on Schedule 6.9(b), enter into any Lease;

(L)   settle or compromise any Action other than the Actions set forth on Schedule 2.1(b)(ix); or

(M)  enter into any agreement or commitment (other than the Transaction Documents) to take any of the types of action described in subclauses (A) through (L) of this Section 8.1(a)(iii).

(iv)  From the date hereof through the Closing Date, Seller will not, and will cause Seller Subsidiary not to, without the prior written consent of Buyer (which consent shall not be unreasonably withheld), to the extent Related to the Business:

(A)  other than in the ordinary course of business consistent with past practices, enter into any Contract which would be a Material Contract if it were in existence on the date hereof;

(B)   other than in the ordinary course of business consistent with past practices, amend in any material respect or terminate (other than by completion thereof) any existing Material Contract;

(C)   enter into any Material Contract with a value in excess of $2,000,000;

(D)  amend in any material respect or terminate (other than by completion thereof) any existing Material Contract with a value in excess of $2,000,000; or

(E)   except as set forth on Schedule 8.1(a)(iv)(E), enter into any customer Contract for the sale of laser projectors for use in connection with the Business;