Kodak 2012 Annual Report Download - page 171

supplemented as of November 29, 2011, June 29, 2012 and October 25, 2012 (together, the “ Buyer Non-Disclosure Agreement ” ), to which
agreement and the obligations thereunder Buyer hereby expressly agrees to be bound; and (ii) continue to permit Buyer’s Designee and its
Representatives to have access to the materials in the Electronic Data Room on the terms and conditions set forth in the Non-Disclosure
Agreement between Kodak and Buyer’s Designee dated July 28, 2012, as supplemented as of October 25, 2012 (together, the “ Designee Non-
Disclosure Agreement
” ), to which agreement and the obligations thereunder Buyer’s Designee hereby expressly agrees to be bound.
Section 5.3 Conduct of Business . During the period from the date hereof until the earlier of Closing or the termination of this
Agreement in accordance with Article VII
, except as expressly provided in this Agreement, or as required by Law, without the consent of Buyer
Kodak will not, and will not permit its Subsidiaries to:
(a) sell, transfer or create any Interest upon any Assigned Patents (including by entering into or amending any Contract with respect
thereto) or the Assigned Royalty Streams, other than (i) the entry into Product Licenses entered into the ordinary course of business, (ii) the entry
into Bidco DC/KISS Patent License Agreements and the Kodak DC/KISS Grant-Back License Agreements, and (iii) any Interests that are
discharged at Closing pursuant to the Final Sale Order and that do not adversely affect Kodak’s or Buyer’s (or Buyer’s Designee’s, as
applicable) ability to consummate the Transaction (provided that with respect to this clause (iii), Kodak shall use commercially reasonable
efforts to consult with Buyer (and Buyer’s Designee, as applicable) prior to selling, transferring or creating any such Interest);
(b) sell, transfer or create any Interest upon any Patent owned or controlled by Kodak or its Subsidiaries, other than the Assigned
Patents, if such sale, transfer or Interest would limit or preclude the ability of Kodak to grant the non-exclusive licenses under such Patent under
the Retained Patents License Agreements;
(c) enter into any new Contract, or terminate or amend any existing Contract, in a manner that would reduce the amount of, delay or
impair the Assigned Royalty Streams or any right of Buyer (or Buyer’
s Designee, as applicable) to enforce such obligations after Closing, unless
an equitable adjustment is made to the Closing Amount to reflect such reduction, delay or impairment as reasonably agreed by Buyer;
(d) fail to pay any maintenance fees required by, or take any other necessary prosecution or maintenance actions in, the U.S. Patent
and Trademark Office and any foreign patent offices by the due date therefor with respect to any of the Assigned Patents; provided , however ,
that Buyer shall reimburse Kodak for payment of the portion of such fees attributable to the post-Closing period at Closing, and in no event later
than the thirtieth (30) day after the Closing, and such reimbursement shall not be deemed a part of the Closing Amount; or
(e) agree in writing, seek authority from the Bankruptcy Court, or fail to use reasonable best efforts to contest the action of any other
party to obtain authority from the Bankruptcy Court to take any of the foregoing actions.
Section 5.4 Commercially Reasonable Efforts; Further Assurances .
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