Common use of Absence of Certain Changes or Events Clause in Contracts

Absence of Certain Changes or Events. Since the date of the Company Balance Sheet, the Company has conducted its business only in the ordinary course of business consistent with past practice and there has not been: (i) any Material Adverse Change to the Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiaries.

Absence of Certain Changes or Events. Since Except as disclosed in the SEC Documents filed and publicly available prior to the date of this Agreement (as amended to the date of this Agreement, the "Filed SEC Documents") or in Section 4.01(h) of the Company Disclosure Schedule or as otherwise expressly contemplated by the Transaction Agreements, since the date of the Company Balance Sheetmost recent audited financial statements included in the Filed SEC Documents, the Company has and its subsidiaries have conducted its business the Retained Business only in the ordinary course of business consistent with past practice practice, and there has not been: been (i) any Material Adverse Change event, change or development which individually or in the aggregate has had or would reasonably be expected to have a material adverse effect on the CompanyRetained Companies or on the GBC Companies or would impair the ability of the Retained Companies or the GBC Companies, as the case may be, to consummate the transactions contemplated by, or to satisfy their obligations under, the Transaction Agreements, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ 's capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsthan regular quarterly cash dividends, (iii) any split, combination or reclassification of any of the Company’s 's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ capital stock, (iv) entry (x) any granting by the Company or any of its Subsidiaries into subsidiaries to any licensing or other agreement with regard to employee who will be a Retained Employee (as defined in the disposition Distribution Agreement) of any material intellectual property other than licensesincrease in compensation, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except for increases in the ordinary course of business consistent with past practice, (vy) any material change granting by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assetssubsidiaries to any such employee of any increase in severance or termination pay, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than except in the ordinary course of business consistent with past practicepractice or as was required under any employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents, or (viiz) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation entry by the Company or any of its Subsidiaries of subsidiaries into any debts employment, consulting, severance, termination or waiver of indemnification agreement with any claims or rights of material valuesuch employee, (ixv) any saledamage, transfer destruction or other disposition outside of loss, whether or not covered by insurance, that has had or would reasonably be expected to have a material adverse effect on the ordinary course of business of Retained Companies or on the GBC Companies or (vi) except insofar as may have been disclosed in the Filed SEC Documents or required by a change in GAAP, any properties change in accounting methods, principles or assets (real, personal or mixed, tangible or intangible) practices by the Company materially affecting the assets, liabilities or any businesses of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesRetained Companies.

Absence of Certain Changes or Events. Since December 31, 1996 and up to and including the date hereof, except as disclosed in the Company Disclosure Letter or the Company SEC Reports, (A) the Company has not declared or paid any dividend or made any distribution on or with respect to its capital stock; redeemed, purchased or otherwise acquired any of its capital stock; granted any options, warrants or other rights to purchase shares of, or any other securities which may be convertible into or exchangeable for, its capital stock; or issued any shares of its capital stock; (B) there has been no increase in the compensation or benefits (including but not limited to any bonus, severance or option plan, program, arrangements or understanding) payable or to become payable to any officer or director of the Company Balance Sheet, or any of the 25 most highly compensated (based on cash compensation paid in or with respect to services rendered in calendar 1996) employees of the Company has conducted and its business only Subsidiaries (including officers and directors of the Company, as applicable) (collectively, including officers and directors of the Company, "Highly Compensated Persons"), other than increases in the ordinary course of business and consistent with past practice and practice; (C) there has not been: (i) any Material Adverse Change to the Companybeen no pledge, (ii) any declarationdisposition, setting aside encumbrance, hypothecation, sale or payment other transfer of any dividend on, material portion of the properties or other distribution assets of the Company and its Subsidiaries taken as a whole (whether tangible or intangible), except in cash, stock or propertythe ordinary course of business and consistent with past practice; and (D) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by there has been no agreement binding upon the Company or any of its Subsidiaries of to do any of the Company’s capital stock or any foregoing. Since December 31, 1996 and up to and including the date of this Agreement, other securities of than as disclosed in the Company Disclosure Letter or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company SEC Reports or any as contemplated by this Agreement, the Company and each of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into have conducted their respective businesses in the ordinary course and there has been no change in the condition (financial or otherwise), business, properties, assets or liabilities of business consistent with past practice, (v) any material change by the Company in and its accounting methods, principles or practicesSubsidiaries taken as a whole, except such failures to so conduct their businesses and such changes, which, when considered as required by concurrent changes in GAAP a whole, have not had a material adverse effect on the business, results of operations or by the Commission, (vi) any material revaluation by financial condition of the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of and its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariestaken as a whole.

Absence of Certain Changes or Events. Since January 1, 2006, until the date of the Company Balance Sheetthis Agreement, (i) except as contemplated by this Agreement, the Company has and its Subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice practice, and (ii) there has not been: been (ia) any change, event or occurrence which has had or would reasonably be expected to have a Material Adverse Change to the Company, Effect or (iib) (A) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock stock, property or property) otherwise in respect of, any of the Company’s or any of its Subsidiaries’ capital stock; (B) any redemption, or any purchase, redemption repurchase or other acquisition by the Company or any of its Subsidiaries of any shares of the Company’s capital stock or any other securities of the Company or its Subsidiaries (other than in connection with the forfeiture or any optionsexercise of equity based awards, warrants, calls Options and Restricted Company Common Stock in accordance with existing agreements or rights to acquire any such shares or other securities terms); (C) except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, as contemplated by this Agreement (iii1) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry granting by the Company or its Subsidiaries to any of its Subsidiaries into any licensing their directors, officers or other agreement with regard to the disposition employees of any material intellectual property other than licensesincrease in compensation or benefits, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except for increases in the ordinary course of business consistent with past practicepractice or that are required under any Company Plan; (2) any granting to any director, officer or employee of the right to receive any severance or termination pay, except as provided for under any plan or agreement in effect prior to January 1, 2006 or (v3) any entry by the Company or its Subsidiaries into any employment, consulting, indemnification, termination, change of control or severance agreement or arrangement with any present or former director, officer or employee of the Company or its Subsidiaries, or any amendment to or adoption of any Company Plan or collective bargaining agreement; (D) any material change by the Company in its accounting methods, principles or practicesprinciples, except as may be required by concurrent to conform to changes in statutory or regulatory accounting rules or GAAP or by the Commission, regulatory requirements with respect thereto; (viE) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation Tax election made by the Company or any of its Subsidiaries or any settlement or compromise of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) Tax liability by the Company or any of its Subsidiaries, ; or (xF) any agreement, whether material change in writing or otherwise, to take any action described in this section Tax accounting principles by the Company or any of its Subsidiaries, except insofar as may have been required by applicable Law.

Absence of Certain Changes or Events. Since From December 31, 1997 through the date of hereof, except as disclosed in any SEC Report or reflected in the Company Interim Balance Sheet, the Company has conducted its business only in the ordinary course of business consistent with past practice and there has not been: been (i) any a Material Adverse Change to the CompanyEffect, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as may have been required by concurrent changes a change in GAAP or by the Commissiongenerally accepted accounting principles, (viiii) any material revaluation entry by the Company or any Subsidiary into any contract material to the Company and the Subsidiaries, taken as a whole, except for contracts relating to the establishment of any new locations by the Company, copies of its assetswhich have been made available to the Purchaser, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than contracts otherwise entered into in the ordinary course of business consistent with past practice, (iv) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any redemption, purchase or other acquisition of any of its securities, (v) any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option, stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except in the ordinary course of business consistent with past practice, (vi) any adjustment, split, combination or reclassification any of its capital stock or issuance or authorization for the issuance of any other securities as a dividend on, in lieu of or in substitution for shares of its capital stock; (vii) any communication from event, any condition, event or occurrence which, individually or in the Nasdaq Global Market with respect to the delisting of the Common Stockaggregate, would have a Material Adverse Effect, (viii) any cancellation by condition, event or occurrence in respect of the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, which could reasonably be expected to prevent the Company from consummating the transactions contemplated by this Agreement; (ix) any saleevent which, transfer or other disposition outside if it had taken place following the execution of this Agreement, would not otherwise have been permitted by Section 5.1 without the ordinary course prior consent of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesParent.

Absence of Certain Changes or Events. Since Except as disclosed in the SEC Documents (including exhibits thereto) filed and publicly available prior to the date of this Agreement and the proof dated June 13, 1998 of Amendment No. 1 to the Registration Statement on Form S-3 of the Company (Registration No. 333-55883) (the "S-3 Amendment") in the form heretofore delivered to Purchaser (the "Filed SEC Documents"), or in the Disclosure Letter, from the date of the Company Balance Sheetmost recent audited financial statements included in the Filed SEC Documents to the date of this Agreement, the Company and each of its Subsidiaries has conducted its business only in the ordinary course of business consistent with past practice and there has not been: been (i) any Material Adverse Change to material adverse effect on the CompanyCompany and its Subsidiaries taken as a whole, (ii) any event or occurrence that would have a material adverse effect on the Company and its Subsidiaries taken as a whole, (iii) any declaration, setting aside or payment of any dividends or distributions in respect of the Shares other than the regular quarterly dividend onin the amount of $0.70 per Share, (iv) any split, combinations or other distribution (whether in cash, reclassification of any of its capital stock or property) any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (v) except as contemplated by Section 7.4 hereof, (A) any of granting by the Company’s Company or any of its Subsidiaries’ capital stock, or Subsidiaries to any purchase, redemption or other acquisition by executive officer of the Company or any of its Subsidiaries of any increase in compensation, except as was required under employment agreements or benefit plans in effect as of the Company’s capital stock or any other securities date of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to most recent audited financial statements included in the terms of their pre-existing stock option or purchase agreementsFiled SEC Documents, (iiiB) any split, combination or reclassification of any of granting by the Company’s Company or any of its Subsidiaries’ capital stockSubsidiaries to any such officer of any increase in severance or termination pay, except as was required under employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents, (ivC) any entry by the Company or any of its Subsidiaries into any licensing employment, severance or other termination agreement or arrangement with regard to the disposition any officer or employee or (D) any increase in benefits available under or establishment of any material intellectual property other than licensesBenefit Plan (as defined in Section 4.10) (including the granting of stock options, distribution agreementsstock appreciation rights, advertising agreementsperformance awards or restricted stock awards or the amendment or acceleration of vesting of any existing stock options, sponsorship agreements stock appreciation rights, performance awards or merchant program agreements entered into restricted stock awards), except in the ordinary course of business consistent with past practice, (vvi) any damage, destruction or loss to physical properties owned or used by the Company, whether or not covered by insurance, that would have a material adverse effect on the Company and its Subsidiaries, taken as a whole, (vii) any revaluation by the Company of any of its material assets, (viii) except as provided in Section 7.4, any actual or approved acceleration of vesting or conversion of contingent restricted shares of stock or other amendment to or modification of outstanding Company Stock Options, DSCs, phantom stock units or contingent of performance-based restricted stock, or (ix) any material change by the Company in its accounting methods, principles or practices, practices except insofar as may have been required by concurrent changes a change in GAAP generally accepted accounting principles. Except as and to the extent set forth in the Company's Annual Report on Form 10-K for the year ended December 31, 1997, or by in any subsequent Filed SEC Document or the CommissionDisclosure Letter, (vi) any material revaluation by neither the Company of nor any of its assetsSubsidiaries has any liabilities or obligations of any nature, includingwhether or not accrued, without limitationcontingent or otherwise, writing down that would be required by generally accepted accounting principles to be reflected on a consolidated balance sheet of the value of capitalized inventory Company and its Subsidiaries (including the notes thereto), except for liabilities or writing off notes or accounts receivable other than obligations incurred in the ordinary course of business consistent with past practicesince December 31, (vii) any communication from 1997, that would not, individually or in the Nasdaq Global Market with respect to the delisting of the Common Stockaggregate, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of have a material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesadverse effect.

Absence of Certain Changes or Events. Since Except as disclosed in the Commission Documents filed and publicly available prior to the date of this Agreement or in Section 4.5 of the Disclosure Schedule and except for the Transactions contemplated by this Agreement, since the date of the Company Balance Sheetmost recent audited financial statements included in the Commission Documents, the Company has and its Subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice course, and there has not been: been (i) any Material Adverse Change to the Company, (iia) any declaration, setting aside aside, or payment of any dividend on, or other distribution (whether in cash, stock stock, or property) with respect to any of the Company's or any Subsidiary's outstanding capital stock or equity interests, (b) any split, combination, or reclassification of any of the Company's or any Subsidiary's outstanding capital stock (or equity interests) or any issuance or the authorization of any issuance of any capital stock or other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, (c) (x) any of granting by the Company’s Company or any of its Subsidiaries’ capital stock, or Subsidiaries to any purchase, redemption executive officer or other acquisition by employee of the Company or any of its Subsidiaries of any material increase in compensation, except in the ordinary course of business consistent with prior practice or as was required under employment agreements in effect as of the Company’s capital stock or any other securities date of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to most recent audited financial statements included in the terms of their pre-existing stock option or purchase agreementsCommission Documents, (iiiy) any split, combination or reclassification of any of granting by the Company’s Company or any of its Subsidiaries’ capital stockSubsidiaries to any such executive officer or other employee of any material increase in severance or termination pay, except in the ordinary course of business consistent with prior practice or as was required under any employment, severance, or termination agreements in effect as of the date of the most recent audited financial statements included in the Commission Documents or (ivz) any entry by the Company or any of its Subsidiaries into any licensing material employment, severance, or termination agreement with any such executive officer or other agreement with regard to the disposition of any material intellectual property other than licensesemployee, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (vd) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation practices by the Company or any of its Subsidiaries materially affecting its assets, liabilities, or businesses, except insofar as may have been required by a change in generally accepted accounting principles. The Company has available to it a borrowing capacity of any debts or waiver of any claims or rights of material value, (ixat least $24.2 million as provided for in Section 4.09(b)(vii) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesIndenture.

Absence of Certain Changes or Events. Since the date of the Company Balance SheetExcept for liabilities incurred in connection with this Agreement, the Company has Option Agreements or the transactions contemplated hereby and thereby, and except as permitted by Section 4.1(a), since April 27, 1996, RSI and its subsidiaries have conducted its business their busi- ness only in the ordinary course of business consistent with past practice or as disclosed in any RSI SEC Document filed since such date and prior to the date hereof, and there has not been: been (i) any Material Adverse Change to the Companymaterial adverse change (as defined in Section 8.3) in RSI, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ RSI's capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination combi- nation or reclassification of any of RSI's capital stock or any issuance or the Company’s authorization of any issuance of any other se- curities in respect of, in lieu of or in substitution for shares of RSI's capital stock, except for issuances of RSI Com- mon Stock upon exercise or conversion of RSI Employee Stock Options, in each case awarded prior to the date hereof in ac- cordance with their present terms or issued pursuant to Section 4.1(a), (iv)(A) any granting by RSI or any of its Subsidiaries’ capital stocksubsidiaries to any current or former director, (iv) entry by the Company or any of its Subsidiaries into any licensing executive officer or other agreement with regard to the disposition key employee of RSI or its subsidiaries of any material intellectual property increase in com- pensation, bonus or other than licensesbenefits, distribution agreementsexcept for normal increases as a result of promotions, advertising agreements, sponsorship agreements or merchant program agreements entered into normal increases of base pay in the ordinary course of business consistent or as was required under any em- ployment agreements in effect as of April 27, 1996 or disclosed in Section 3.1(i) of the RSI Disclosure Schedule, (B) any granting by RSI or any of its subsidiaries to any such current or former director, executive officer or key employee of any increase in severance or termination pay, or (C) any entry by RSI or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, ter- mination or indemnification agreement with past practiceany such current or former director, executive officer or key employee, (v) except insofar as may have been disclosed in RSI SEC Documents filed and publicly available prior to the date of this Agreement (as amended to the date hereof, the "RSI Filed SEC Documents") or required by a change in GAAP, any material change by the Company in its accounting methods, principles or practicespractices by RSI materially affecting its assets, except as required by concurrent changes in GAAP liabilities or by the Commissionbusiness, (vi) except insofar as may have been disclosed in the RSI Filed SEC Documents, any tax election that individually or in the aggregate would have a material revaluation by the Company of adverse effect on RSI or any of its assetstax attributes or any settlement or compromise of any material income tax liability, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation action taken by the Company RSI or any of its Subsidiaries the RSI subsidiaries during the period from April 28, 1996 through the date of any debts or waiver this Agreement that, if taken during the period from the date of any claims or rights this Agree- ment through the Effective Time, would constitute a breach of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesSection 4.1(a).

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement or the transactions contemplated hereby and except as permitted by Section 4.1(a), or as disclosed in any Company SEC Document filed and publicly available prior to the date of hereof (as amended to the date hereof, "Company Balance SheetFiled SEC Documents") since January 1, 2000, the Company has and its subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice course, and there has not been: been (i) any Material Adverse Change to material adverse change in the Company, including, but not limited to, any material adverse change arising from or relating to fraudulent or unauthorized activity, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ 's capital stock, or any purchase, redemption or other acquisition by than regular quarterly cash dividends on the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of Common Stock and dividends payable on the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following Preferred Stock in accordance with their termination pursuant to the terms of their pre-existing stock option or purchase agreementsterms, (iii) any split, combination or reclassification of any of the Company’s 's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its Subsidiaries’ capital stocksubsidiaries to any current or former director, executive officer or other key employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (ivB) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or key employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its Subsidiaries into subsidiaries into, or any licensing amendment of, any employment, deferred compensation, consulting, severance, termination or other indemnification agreement with regard to the disposition of any material intellectual property other than licensessuch current or former director, distribution agreements, advertising agreements, sponsorship agreements executive officer or merchant program agreements entered into in the ordinary course of business consistent with past practicekey employee, (v) except insofar as may have been disclosed in Company Filed SEC Documents or required by a change in GAAP or SAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company in affecting its accounting methodsassets, principles liabilities or practicesbusiness, except as required by concurrent changes in GAAP including without limitation, any reserving, renewal or by the Commissionresidual method, practice or policy, (vi) any material revaluation tax election by the Company or its subsidiaries or any settlement or compromise of any of income tax liability by the Company or its assetssubsidiaries, includingexcept as would not be required to be disclosed in the Company SEC Documents, without limitation(vii) any material change in actuarial, writing down the value of capitalized inventory pricing, or writing off notes or accounts receivable investment policies, (viii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company practice or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer agreement or other disposition outside commitment (contingent or otherwise) to do any of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesforegoing.

Absence of Certain Changes or Events. Since Except as disclosed in the Company SEC Documents filed prior to the date of this Agreement and publicly available, since December 31, 1997 and except as set forth in Section 3.1(g) of the Company Balance SheetDisclosure Schedule, the Company has conducted its business only in the ordinary course of business consistent with past practice prior practice, and there has not been: been (i) any Material Adverse Change to in the Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ 's capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s its capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ capital stock, (iv) entry any granting by the Company or any of its Subsidiaries into subsidiaries to any licensing officer or other agreement with regard employee of the Company or any of its subsidiaries of (A) any increase in compensation or (B) any right to participate in (by way of bonus or otherwise) the disposition profits of the Company or any material intellectual property other than licensesof its subsidiaries, distribution agreementsexcept, advertising agreementsin each case, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practiceprior practice or as was required under employment agreements or salary or wage policies in effect as of the date of the most recent audited financial statements included in the Company SEC Documents filed prior to the date of this Agreement (a list of all such employment agreements being set forth in Section 3.1(g) of the Company Disclosure Schedule), (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation granting by the Company or any of its Subsidiaries subsidiaries to any such officer or employee of any debts increase in severance or waiver termination pay, except as was required under employment, severance or termination agreements in effect as of any claims or rights the date of material valuethe most recent audited financial statements included in the Company SEC Documents filed prior to the date of this Agreement and publicly available, (ixvi) any saleentry into, transfer or other disposition outside of the ordinary course of business of any properties renewal or assets (realmodification, personal or mixed, tangible or intangible) by the Company or any of its Subsidiariessubsidiaries, of any employment, consulting, severance or termination agreement with any officer, director or employee of the Company or any of its subsidiaries, (vii) any damage, destruction or loss, whether or not covered by insurance, that has or could have a Material Adverse Effect on the Company, (viii) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or business, or (xix) any agreementother action taken since September 30, whether in writing or otherwise, to take any action described in this section 1998 by the Company or any of its Subsidiariessubsidiaries which, if Section 4.1(a) had then been in effect, would have been prohibited by such Section if taken without Parent's consent (and no agreement, understanding, obligation or commitment to take any such action exists).

Absence of Certain Changes or Events. Since the date of December 31, -------------------------------------------------- 1997, except as contemplated by this Agreement or as disclosed in Schedule 3.8 to the Company Balance SheetDisclosure Letter, the Company has and its subsidiaries have conducted its business their businesses only in the ordinary course of business and in a manner consistent with past practice and and, since such date, there has not been: (i) any Material Adverse Change to changes in the Companyassets, (ii) any declarationliabilities, setting aside results of operation, financial condition or payment business of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of subsidiaries having or likely to have a Material Adverse Effect; (ii) any of condition, event or occurrence which, individually or in the Company’s capital stock or any other securities of the Company or its Subsidiaries or any optionsaggregate, warrants, calls or rights is likely to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, have a Material Adverse Effect; (iii) any splitdamage, combination destruction or reclassification loss (whether or not covered by insurance) with respect to any assets of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing subsidiaries which is likely, individually or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practiceaggregate, to have a Material Adverse Effect; (viv) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, ; (viv) any material revaluation by the Company of any of its material assets, including, without limitation, including but not limited to writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, business; (viivi) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation entry by the Company or any of its Subsidiaries of subsidiaries into any debts commitment or waiver of any claims transactions material to the Company and its subsidiaries taken as a whole (other than commitments or rights of material value, (ix) any sale, transfer or other disposition outside of transactions entered into in the ordinary course of business business); (vii) any declaration, setting aside or payment of any properties dividends or assets distributions in respect of the Shares; (realviii) any increase in or establishment of any bonus, personal insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including without limitation the granting of stock options, stock appreciation rights, performance awards, or mixedrestricted stock awards), tangible stock purchase or intangible) by other employee benefit plan or agreement or arrangement, or any other increase in the compensation payable or to become payable to any present or former directors, officers or key employees of the Company or any of its Subsidiariessubsidiaries, except for increases in base compensation in the ordinary course of business consistent with past practice, or any employment, consulting or severance agreement or arrangement entered into with any such present or former directors, officers or key employees; or (xix) any agreementother action which, whether in writing or otherwiseif it had been taken after the date hereof, to take any action described in this section by would have required the Company or any consent of its SubsidiariesParent under Section 5.1.

Absence of Certain Changes or Events. Since Except as set forth in the Company Letter or, with respect to changes after the date of this Agreement, as expressly permitted by clauses (i) through (xvii) of Section 5.1, since December 31, 1999, (a) there has been no change in the capital stock of the Company Balance Sheet, except for the issuance of shares of the Company has conducted Common Stock pursuant to Company Stock Options or the Company Stock Purchase Plan or upon the exercise of the Hiway Warrants, and except for payments with respect to the Preferred Shares required to be made under the Deposit Agreement dated as of July 20, 1999 (the "Deposit Agreement") between the Company and Norwest Bank Minnesota, N.A. and dividends with respect to the Preferred Shares required to be paid under the terms thereof, no dividend or distribution of any kind declared, paid or made by the Company on any class of its business only in the ordinary course of business consistent with past practice and stock, (b) there has not been: been (i) any Material Adverse Change to the Companyadoption of a new Company Benefit Plan (as hereinafter defined), (ii) any declarationamendment to a Company Benefit Plan materially increasing benefits thereunder, setting aside or payment of (iii) any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of granting by the Company’s Company or any of its Subsidiaries’ capital stock, or Subsidiaries to any purchase, redemption executive officer or other acquisition by key employee of the Company or any of its Subsidiaries of any increase in compensation, severance or termination benefits, except in the ordinary course of business consistent with prior practice or as was required under employment, severance or termination agreements in effect as of the Company’s capital stock or any other securities date of the most recent audited financial statements included in the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant SEC Documents filed prior to the terms of their pre-existing stock option date hereof or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) any entry by the Company or any of its Subsidiaries into any licensing employment, severance or termination agreement with any such executive officer or other agreement with regard key employee, (c) there have not been any material changes in the amount or terms of the indebtedness of the Company and its Subsidiaries from that described in the Company SEC Documents filed prior to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements date hereof or merchant program agreements entered into in the ordinary course of business consistent with past practiceDraft Form 10-Q and (d) there has been no event causing a Material Adverse Effect on the Company, (v) nor any material change by the Company in its accounting methodsdevelopment that would, principles individually or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practiceaggregate, (vii) any communication from result in a Material Adverse Effect on the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesCompany.

Absence of Certain Changes or Events. Since (i) From December 31, 2014 to the date of the Company Balance Sheetthis Agreement, the Company has and its Subsidiaries have conducted its business their respective businesses only in the ordinary course of business consistent in all material respects with past practice and there has not been: been (iA) any state of facts, change, development, event, effect (including any effect resulting from an occurrence prior to December 31, 2014), condition, occurrence, action or omission that, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Change to the CompanyEffect, (iiB) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption stock or other acquisition equity or voting interests, except for dividends by the Company a direct or any of its Subsidiaries of any of the Company’s capital stock or any other securities indirect wholly owned Subsidiary of the Company or to its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsparent, (iiiC) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stockstock or other equity or voting interests or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries, (ivD) entry any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries into of any licensing shares of capital stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other agreement with regard securities (other than pursuant to the disposition forfeiture conditions of stock options or restricted shares or the cashless exercise or tax withholding provisions of stock options or restricted shares, as applicable, in each case in accordance with the applicable Company Stock Plan as in effect on the date of this Agreement), (E)(1) any grant by the Company or any of its Subsidiaries to any current or former director, officer, employee, contractor or consultant of the Company or any of its Subsidiaries (collectively, “Company Personnel”) of any material intellectual property other than licensesbonus or award opportunity, distribution agreementsany loan or any increase in any type of compensation or benefits, advertising agreementsexcept for grants of normal bonus opportunities and normal increases of base cash compensation, sponsorship agreements in each case, in the ordinary course of business consistent with past practice, or merchant program agreements entered into (2) any payment by the Company or any of its Subsidiaries to any Company Personnel of any bonus or award, except for bonuses or awards paid prior to the date of this Agreement in the ordinary course of business consistent with past practice, (vF) any material change grant by the Company or any of its Subsidiaries to any Company Personnel of any severance, separation, change in its accounting methodscontrol, principles retention, termination or practicessimilar compensation or benefits or increase therein or of the right to receive any severance, except as required by concurrent changes separation, change in GAAP control, retention, termination or by the Commissionsimilar compensation or benefits or increase therein, (viG) any material revaluation adoption or establishment of or entry by the Company of or any of its assetsSubsidiaries into, includingany amendment of, without limitationmodification to or termination of, writing down or agreement to amend, modify or terminate, or any termination of (or announcement of an intention to amend, modify or terminate), (1) any employment, deferred compensation, change in control, severance, termination, employee benefit, loan, indemnification, retention, equity or equity‑based compensation, consulting or similar Contract between the value Company or any of capitalized inventory its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, (2) any Contract between the Company or writing off notes any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, the benefits of which are contingent, or accounts receivable the terms of which are altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement (alone or in combination with any other event), (3) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Personnel, on the other hand, concerning non-competition, non-solicitation or customers or employees, non-disclosure of information, ownership of Intellectual Property Rights or any other restrictive covenant or (4) any trust or insurance Contract or other agreement to fund or otherwise secure payment of any compensation or benefit to be provided to any Company Personnel (all such Contracts under this clause (G), including any such Contract that is entered into on or after the date of this Agreement, collectively, “Benefit Agreements”), (H) any grant or amendment of any award under any Benefit Plan or Benefit Agreement (including the grant or amendment of Stock Options, Restricted Shares, restricted stock units, stock appreciation rights, performance units, stock repurchase rights or other equity or equity‑based compensation) or the removal or modification of any restrictions in any such award, (I) any payment to any Company Personnel of any compensation or benefit not provided for under any Benefit Plan or Benefit Agreement, other than the payment of base cash compensation or incentive or bonus payments in the ordinary course of business consistent with past practice, (viiJ) other than the execution and delivery of this Agreement, the taking of any action to accelerate, or that is reasonably likely to result in the acceleration of, the time of vesting or payment of any rights, compensation, benefits or funding obligations, or the making of any material determinations, under any Benefit Plan or Benefit Agreement or otherwise, (K) any communication from material change in financial or tax accounting methods, principles or practices by the Nasdaq Global Market with respect to the delisting Company or any of the Common Stockits Subsidiaries, except insofar as may have been required by GAAP or applicable Law, (viiiL) any cancellation material tax election or change in any material tax election or any settlement or compromise of any material tax liability, (M) any material write-down by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course material assets of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, Subsidiaries or (xN) any agreementlicensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property or rights thereto, whether other than nonexclusive licenses granted in writing or otherwise, to take any action described in this section by the ordinary course of the business of the Company or any of and its SubsidiariesSubsidiaries consistent with past practice.

Absence of Certain Changes or Events. Since Except as disclosed in the Company SEC Documents filed prior to the date of the Company Balance Sheethereof, since April 30, 2003, the Company has and its Subsidiaries have conducted its business their businesses only in the ordinary course of business and in a manner consistent with past practice practice, and since such date, there has not been: been (i) any event or events have occurred that have had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Change to Effect on the Company, ; (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cashwith respect to the Company Capital Stock or any redemption, stock purchase or property) in respect of, other acquisition of any of the Company’s Company Capital Stock; (iii) (A) any granting by the Company or any of its Subsidiaries’ capital stock, Subsidiaries to any officer or any purchase, redemption or other acquisition by director of the Company or any of its Subsidiaries of any of the Company’s capital stock or increase in compensation, (B) any other securities of granting by the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stockSubsidiaries to any such officer or director of any increase in severance or termination pay, (ivC) any granting by the Company or any of its Subsidiaries to any such officer, director or other key employees of any loans or any increases to outstanding loans, if any, (D) except employment agreements in the ordinary course of business consistent with past practice with employees other than any executive officer of the Company and any entry by the Company or any of its Subsidiaries into any licensing employment, severance or other termination agreement with regard any such employee or executive officer or director, or (E) any increase in or establishment of any Benefit Plan (including amendment of existing Benefit Plans); (iv) any material damage, destruction or loss (whether or not covered by insurance) with respect to the disposition Company or any of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, its Subsidiaries; (v) any material change by payment to an Affiliate of the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable Subsidiaries other than in the ordinary course of business consistent with past practice, ; (viivi) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation revaluation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, their assets; (ixvii) any salemortgage, transfer lien, pledge, encumbrance, charge, agreement, claim or other disposition outside restriction placed upon any of the ordinary course of business of any material properties or assets (real, personal or mixed, tangible or intangible) by of the Company or any of its Subsidiaries; (viii) any material change in the accounting methods, principles or practices used by the Company; or (xix) any agreement, whether in writing other action or otherwise, event that would have required the consent of Buyer pursuant to take any Section 5.1 of this Agreement had such action described in or event occurred after the date of this section by the Company or any of its SubsidiariesAgreement.

Absence of Certain Changes or Events. Since Except as disclosed in the SEC Documents filed and publicly available prior to the date of this Agreement (the "Filed SEC Documents") or in Section 2.5 of the Disclosure Schedule, since the date of the Company Balance Sheetmost recent audited financial statements included in the Filed SEC Documents, the Company has and its subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice course, and there has not been: been (i) any Material Adverse Change to change which would have a material adverse effect on the Companybusiness, financial condition or results of operations of the Company and its subsidiaries taken as a whole, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ 's outstanding capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s its outstanding capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ outstanding capital stock, (iv) (x) any granting by the Company or any of its subsidiaries to any executive officer or other employee of the Company or any of its subsidiaries of any increase in compensation, except in the ordinary course of business consistent with prior practice or as was required under employment agreements or employee, director or agent benefit plans in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents, (y) any granting by the Company or any of its subsidiaries to any such executive officer or other employee of any increase in severance or termination pay, except in the ordinary course of business consistent with prior practice or as was required under any employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents or (z) any entry by the Company or any of its Subsidiaries subsidiaries into any licensing employment, severance or termination G:\LEGAL\AGREEMNT\MERGER\PIONEER.4TH 9 agreement with any such executive officer or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements employee or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation practices by the Company or any of its Subsidiaries of any debts subsidiaries materially affecting its assets, liability or waiver of any claims or rights of material valuebusiness, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) except insofar as may have been required by the Company or any of its Subsidiaries, or (x) any agreement, whether a change in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesgenerally accepted accounting principles.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement or the date of the Company Balance Sheettransactions contemplated hereby and except as permitted by Section 4.1(a), the Company has since June 30, 1999, CAX and its Subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice course, and there has not been: been (i) any Material Adverse Change, or any development which may result in a Material Adverse Change, in CAX, including, but not limited to, any Material Adverse Change arising from or relating to the Companyfraudulent or unauthorized activity, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ CAX's capital stock, or other than regular quarterly cash dividends on CAX Common Stock and any purchase, redemption or other acquisition by dividends which may be required under the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights Code to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsmaintain CAX's status as a REIT (as defined in Section 3.2(g)), (iii) any split, combination or reclassification of any of the Company’s CAX's capital stock or any issuance or the authorization of its Subsidiaries’ any issuance of any other securities in respect of, in lieu of or in substitution for shares of CAX's capital stock, except for issuances of CAX Common Stock upon the exercise of CAX Stock Options awarded prior to the date of this Agreement in accordance with their present terms, (iv) entry (A) except pursuant to agreements in effect on such date, any granting by the Company CAX or any of its Subsidiaries into to any licensing current or former director, officer or other employee of CAX or its Subsidiaries of any CAX Stock Options or any material increase in compensation, bonus or other benefits, (B) any granting by CAX or any of its Subsidiaries to any such current or former director, executive officer or employee of any increase in severance or termination pay, or (C) any entry by CAX or any of its Subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with regard to the disposition of any material intellectual property other than licensessuch current or former director, distribution agreements, advertising agreements, sponsorship agreements executive officer or merchant program agreements entered into in the ordinary course of business consistent with past practiceemployee, (v) except insofar as may have been required by a change in GAAP or law or regulation, any material change by the Company in its accounting methods, principles or practicespractices by CAX affecting its assets, except as required by concurrent changes in GAAP liabilities or by the Commissionbusiness, (vi) any material revaluation tax election by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company CAX or any of its Subsidiaries or any settlement or compromise of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) income tax liability by the Company CAX or any of its Subsidiaries, or (xvii) any agreementnew capital commitment or increase in existing capital commitments, whether in writing excess of $1,000,000, individually or otherwise, to take any action described in this section by the Company or any of its Subsidiariesaggregate.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement or the date transactions contemplated hereby, since December 31, 2001, each of the Company Balance Sheet, the Company has Target Companies and their respective subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice and there has not been: been (i) any Material Adverse Change material adverse change to the CompanyTarget Companies and no event has occurred or circumstance has arisen that, in combination with any other events or circumstances, would reasonably be expected to have a material adverse effect on either of the Target Companies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ Target Companies' capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s Target Companies' capital stock or any issuance or the authorization of its Subsidiaries’ any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Target Companies' capital stock, except for issuances of Target Company Common Stock upon the exercise of the Target Company Options awarded prior to the date hereof in accordance with their present terms or in accordance with the terms of the Target Companies Stock Plans, (iv) entry (A) any granting by either of the Company Target Companies or any of its Subsidiaries into their respective subsidiaries to any licensing current or former director, executive officer or other agreement with regard to key employee (as defined in Section 10.02) of either of the disposition Target Companies or their respective subsidiaries of any material intellectual property increase in compensation, bonus or other than licensesbenefits, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except for normal increases in the ordinary course of business consistent with past practiceor as was required under any employment agreements in effect as of May 31, 2002, (vB) any material change granting by either of the Company Target Companies or any of their respective subsidiaries to any such current or former director, executive officer or key employee of any increase in its accounting methods, principles severance or practicestermination pay, except in the ordinary course of business or as required by concurrent changes under any employment agreements in GAAP effect as of May 31, 2002, or by the Commission, (viC) any material revaluation entry by either of the Company of Target Companies or any of its assetstheir respective subsidiaries into, includingor any amendment of, without limitationany employment, writing down the value of capitalized inventory deferred compensation, consulting, severance, termination or writing off notes indemnification agreement with any such current or accounts receivable former director, executive officer or key employee, other than in the ordinary course of business consistent with past practicebusiness, (viiv) except as required by a change in generally accepted accounting principles, any change in accounting methods, principles or practices by either of the Target Companies materially affecting its assets, liabilities or business or (vi) any communication from tax election that individually or in the Nasdaq Global Market with respect aggregate would reasonably be expected to have a material adverse effect on the delisting of the Common Stock, (viii) any cancellation by the Company Target Companies or any of its Subsidiaries their material tax attributes or any settlement or compromise of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesincome tax liability.

Absence of Certain Changes or Events. Since Except as disclosed in the date Company SEC Documents or as set forth in Schedule 3.07 of the Company Balance SheetDisclosure Schedule or as contemplated by this Agreement, since September 9, 1995, the Company has and its subsidiaries have conducted its business their respective businesses only in the ordinary course of business consistent with past practice course, and there has not been: been (i) any Material Adverse Change to material adverse change in the Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, any of to the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s 's capital stock or any other securities than the regular quarterly dividends on the shares of the Company or its Subsidiaries or any optionsCommon Stock, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsConvertible Preferred Stock and Class A Preferred Stock, (iii) any split, combination or reclassification of any of the Company’s 's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ capital stock, (iv) entry (A) any granting by the Company or any of its Subsidiaries into subsidiaries to any licensing officer of the Company or other agreement with regard to the disposition any of its subsidiaries of any material intellectual property other than licensesincrease in compensation, distribution agreementsexcept in the ordinary course of business consistent with prior practice, advertising agreements(B) any granting by the Company or any of its subsidiaries to any such officer of any increase in severance or termination pay, sponsorship agreements except as part of a standard employment package to any person promoted or merchant program agreements entered into hired, (C) except termination arrangements in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable practice with employees other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting executive officer of the Common StockCompany, (viii) any cancellation entry by the Company or any of its Subsidiaries of subsidiaries into any debts employment, severance or waiver of termination agreement with any claims such officer, or rights of (D) any material valuemodifications to any existing Company Benefit Plans (as defined in Section 3.10) other than such modifications required by law, (ixv) any saledamage, transfer destruction or other disposition outside of loss, whether or not covered by insurance, that has or reasonably would be expected to have a material adverse effect on the ordinary course of business of Company or (vi) any properties change in accounting methods, principles or assets (real, personal or mixed, tangible or intangible) practices by the Company materially affecting its assets, liabilities or any of its Subsidiariesbusiness, or (x) any agreement, whether except insofar as may have been required by a change in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesgenerally accepted accounting principles.

Absence of Certain Changes or Events. Since December 31, 1996 ------------------------------------ and up to and including the date hereof, except as disclosed in the Company Disclosure Letter or the Company SEC Reports, (A) the Company has not declared or paid any dividend or made any distribution on or with respect to its capital stock; redeemed, purchased or otherwise acquired any of its capital stock; granted any options, warrants or other rights to purchase shares of, or any other securities which may be convertible into or exchangeable for, its capital stock; or issued any shares of its capital stock; (B) there has been no increase in the compensation or benefits (including but not limited to any bonus, severance or option plan, program, arrangements or understanding) payable or to become payable to any officer or director of the Company Balance Sheet, or any of the 25 most highly compensated (based on cash compensation paid in or with respect to services rendered in calendar 1996) employees of the Company has conducted and its business only Subsidiaries (including officers and directors of the Company, as applicable) (collectively, including officers and directors of the Company, "Highly ------ Compensated Persons"), other than increases in the ordinary course of business ------------------- and consistent with past practice and practice; (C) there has not been: (i) any Material Adverse Change to the Companybeen no pledge, (ii) any declarationdisposition, setting aside encumbrance, hypothecation, sale or payment other transfer of any dividend on, material portion of the properties or other distribution assets of the Company and its Subsidiaries taken as a whole (whether tangible or intangible), except in cash, stock or propertythe ordinary course of business and consistent with past practice; and (D) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by there has been no agreement binding upon the Company or any of its Subsidiaries of to do any of the Company’s capital stock or any foregoing. Since December 31, 1996 and up to and including the date of this Agreement, other securities of than as disclosed in the Company Disclosure Letter or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company SEC Reports or any as contemplated by this Agreement, the Company and each of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into have conducted their respective businesses in the ordinary course and there has been no change in the condition (financial or otherwise), business, properties, assets or liabilities of business consistent with past practice, (v) any material change by the Company in and its accounting methods, principles or practicesSubsidiaries taken as a whole, except such failures to so conduct their businesses and such changes, which, when considered as required by concurrent changes in GAAP a whole, have not had a material adverse effect on the business, results of operations or by the Commission, (vi) any material revaluation by financial condition of the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of and its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariestaken as a whole.

Absence of Certain Changes or Events. Since the date Except as set forth in Section 3.1(m) of the Company Balance SheetDisclosure Schedule, the Company has conducted its business only in the ordinary course of business consistent with past practice and since December 31, 2005 (i) there has not been: (i) been any Material Adverse Change change, or, to the knowledge of Company, (ii) any declarationevent involving a prospective change, setting aside in the business, financial condition or payment results of any dividend onoperations or, or other distribution (whether in cashto the knowledge of Company, stock or property) in respect of, any prospects of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries or in the relationship of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries with respect to their employees, creditors, suppliers, distributors, customers or any optionsothers with whom they have business relationships, warrantswhich has had, calls or rights would be reasonably likely to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementshave, a Material Adverse Effect on Company, (iiiii) any split, combination or reclassification Company and each of any of its Subsidiaries have conducted their respective businesses in the Company’s or ordinary course consistent with their past practices and neither Company nor any of its Subsidiaries’ capital stockSubsidiaries has taken any action or entered into any transaction, (iv) entry by and, to the knowledge of Company, no event has occurred, that would have required Commerce or Sub's consent pursuant to Section 4.1 of this Agreement if such action had been taken, transaction entered into or event had occurred, in each case, after the date of this Agreement, nor has Company or any of its Subsidiaries entered into any licensing agreement, plan or arrangement to do any of the foregoing, (iii) there have been no dividends or other agreement with regard to the disposition distributions declared, set aside or paid in respect of Company Common Stock, nor has any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market action with respect to the delisting Company Common Stock proscribed by Section 4.1 of the Common Stockthis Agreement occurred or been taken, and (viiiiv) Company and its Subsidiaries have not entered into any cancellation by the Company employment contract with any director, officer or salaried employee, paid any or made any accrual or arrangement for payment of bonuses or special compensation of any kind or any of its Subsidiaries of any debts severance or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or termination pay to any of its Subsidiariestheir officers, employees or directors, increased the rate of compensation, if any, or (x) instituted or made any agreementmaterial increases in any officer's, whether employee's or director's welfare, retirement or similar plan or arrangement, other than annual and merit increases made in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesaccordance with past practices and procedures.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement or the date of the Company Balance Sheettransactions contemplated hereby, the Company has since December 31, 1997, Acquiror and its subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice or as disclosed in any Acquiror Filed SEC Document, and there has not been: been (i) any Material Adverse Change to the Company, (ii1) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ Acquiror's capital stock, or any purchase, redemption or other acquisition by than regular quarterly cash dividends on the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsAcquiror Common Stock, (iii2) any split, combination or reclassification of any of Acquiror's capital stock or any issuance or the Company’s authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Acquiror's capital stock, except for issuances of Acquiror Common Stock upon the exercise of Acquiror Employee Stock Options awarded prior to September 30, 1998 in accordance with their present terms or issued pursuant to Section 4.1(b) or in accordance with the terms of the Acquiror Stock Plans, (3) (A) any granting by Acquiror or any of its Subsidiaries’ capital stocksubsidiaries to any current or former director, (iv) entry by the Company or any of its Subsidiaries into any licensing executive officer or other agreement with regard to the disposition key employee of Acquiror or its subsidiaries of any material intellectual property increase in compensation, bonus or other than licensesbenefits, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except for normal increases in the ordinary course of business consistent with past practiceor as was required under any employment agreements in effect as of the date of the most recent audited financial statements included in the Acquiror SEC Documents filed and publicly available prior to the date of this Agreement (as amended to the date of this Agreement, the "Acquiror Filed SEC Documents"), (vB) any material change granting by the Company in its accounting methods, principles Acquiror or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assetssubsidiaries to any such current or former director, includingexecutive officer or key employee of any increase in severance or termination pay, without limitationexcept in the ordinary course of business or pursuant to the Acquiror Stock Plans, writing down the value or (C) any entry by Acquiror or any of capitalized inventory its subsidiaries into, or writing off notes any amendment of, any employment, deferred compensation, consulting, severance, termination or accounts receivable indemnification agreement with any such current or former director, executive officer or key employee, other than in the ordinary course of business consistent with past practicebusiness, (vii4) except insofar as may have been disclosed in the Acquiror Filed SEC Documents or required by a change in generally accepted accounting principles, any communication from change in accounting methods, principles or practices by Acquiror materially affecting its assets, liabilities or business or (5) except insofar as may have been disclosed in the Nasdaq Global Market with respect Acquiror Filed SEC Documents, any tax election that individually or in the aggregate would reasonably be expected to the delisting of the Common Stock, (viii) any cancellation by the Company have a material adverse effect on Acquiror or any of its Subsidiaries tax attributes or any settlement or compromise of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesincome tax liability.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement or the date of transactions contemplated hereby and except as disclosed in the Company Balance SheetExcel Filed SEC Documents, the Company has since March 31, 1999, Excel and its subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice and since such date there has not been: been (i1) any Material Adverse Change to the Companyin Excel, (ii2) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ Excel's capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii3) any split, combination or reclassification of any of Excel's capital stock or any issuance or the Company’s authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Excel's capital stock, except for issuances of Excel Common Stock as expressly permitted by Section 4.01(a)(ii), (4) (A) any granting by Excel or any of its Subsidiaries’ capital stocksubsidiaries to any current or former director, (iv) entry by the Company or any of its Subsidiaries into any licensing executive officer or other agreement with regard to the disposition employee of Excel or its subsidiaries of any material intellectual property increase in compensation, bonus or other than licensesbenefits, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except for normal increases in cash compensation in the ordinary course of business consistent with past practicepractice or as was required under any employment agreements in effect as of the date of the most recent audited financial statements included in the Excel Filed SEC Documents, (vB) any material granting by Excel or any of its subsidiaries to any such current or former director, executive officer or employee of any increase in severance or termination pay, (C) any entry by Excel or any of its subsidiaries into, or any amendments of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or employee, or (D) any amendment to, or modification of, any Excel Stock Option, (5) except insofar as may have been required by a change by the Company in its GAAP, any change in accounting methods, principles or practices, except as required practices by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company Excel or any of its Subsidiaries of any debts subsidiaries materially affecting their respective assets, liabilities or waiver of any claims or rights of material valuebusinesses, (ix6) any sale, transfer tax election that individually or other disposition outside in the aggregate is reasonably likely to adversely affect in any material respect the tax liability or tax attributes of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company Excel or any of its Subsidiaries, subsidiaries or (x7) any agreement, whether in writing settlement or otherwise, to take compromise of any action described in this section by the Company or any of its Subsidiariesmaterial income tax liability.

Absence of Certain Changes or Events. Since Except as publicly disclosed in the Interchange SEC Reports filed with the SEC prior to the date hereof, or as set forth in Section 4.8 of the Company Balance SheetInterchange Disclosure Schedule, the Company since December 31, 2005, (a) no event has conducted its business only occurred which has had or would reasonably be expected to have, individually or in the ordinary course of business consistent with past practice and there has not been: (i) any aggregate, a Material Adverse Change Effect on Interchange and (b) prior to the Companydate hereof, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or neither Interchange nor any of its Subsidiaries of has (i) effected or authorized any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any optionsadjustment, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or redeemed, purchased or otherwise acquired, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its Subsidiaries into any licensing capital stock or other agreement with regard stock appreciation rights (except pursuant to the disposition exercise of stock options); (ii) declared, set aside or paid any material intellectual property dividend other than licensesregular quarterly cash dividends on Interchange Common Stock and dividends paid to the holders of trust preferred securities issued by affiliated trusts in accordance with the terms of such securities; (iii) sold, distribution agreementslicensed, advertising agreementsleased, sponsorship agreements encumbered, mortgaged, transferred, assigned or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company otherwise disposed of any of its material assets, including, without limitation, writing down the value of capitalized inventory properties or writing off notes other rights or accounts receivable agreements other than in the ordinary course of business consistent with past practice, ; (viiiv) increased the compensation or fringe benefits of any communication from the Nasdaq Global Market with respect to the delisting present or former director or officer of the Common Stock, (viii) any cancellation by the Company Interchange or any of its Subsidiaries (except for increases in salary or wages of any debts nonexecutive officers or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of employees in the ordinary course of business consistent with past practice), or granted any severance or termination pay to any present or former director, officer or employee of Interchange or its Subsidiaries except in connection with terminations of employment of non-officer employees in the ordinary course of business consistent with past practice; (v) amended or terminated any properties Interchange Benefit Plan; (vi) made any material change in its policies and practices with respect to (x) underwriting, pricing, originating, acquiring, selling, servicing, or assets buying or selling rights to service Loans or (realy) hedging its Loan positions or commitments; (vii) made any changes in its accounting methods or method of Tax accounting, personal practices or mixed, tangible policies; (viii) made or intangible) by the Company changed any material Tax election or settled or compromised any material Tax liability of Interchange or any of its Subsidiaries; or (ix) agreed to, or (x) made any agreementcommitment to, whether in writing or otherwise, to take any action described in this section by of the Company or any of its Subsidiariesforegoing actions.

Absence of Certain Changes or Events. Since the date of June 30, 2021, except as disclosed in the Company Balance SheetUnaudited Financial Statements, (a) there has not been any change or development in the business, operations, assets, liabilities, condition (financial or otherwise), results of operations, cash flows or properties of Company or any of its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to Company or Company Bank; (b) except as otherwise expressly contemplated by this Agreement, Company and each of its Subsidiaries has conducted its business only in all material respects in the ordinary course Ordinary Course of business consistent with past practice Business; and (c) there has not been: been (i) any Material Adverse Change to the material change by Company or any of its Subsidiaries in its accounting methods, principles or practices, other than changes required by applicable Law or GAAP or regulatory accounting as concurred by Company’s independent accountants, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, of any capital stock of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries or any redemption, purchase or other acquisition of any of its securities; (iii) (1) any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the Company’s capital granting of stock options, stock appreciation rights, performance awards, restricted stock awards, restricted stock unit awards or deferred stock unit awards), stock purchase or other arrangement that would be a Company Benefit Plan, or any other securities increase in the compensation payable or to become payable to any directors, officers or employees of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries (other than in the Ordinary Course of Business), or (2) any grant of change-in-control, retention, severance or termination pay, or any contract or arrangement entered into to make or grant any licensing change-in-control, retention, severance or other agreement termination pay, (3) any payment of any bonus, or (4) the taking of any action not in the Ordinary Course of Business with regard respect to the disposition compensation or employment of directors, officers or employees of Company or any of its Subsidiaries; (iv) any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements election or merchant program agreements entered into material changes in the ordinary course existing elections made by Company or any of business consistent with past practice, its Subsidiaries for federal or state Tax purposes; (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course credit policies or procedures of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, the effect of which was or is to make any such policy or procedure less restrictive in any material respect; (vi) any material acquisition or disposition of any assets or properties, or any contract for any such acquisition or disposition entered into other than investment securities of Company or Company Bank, or loans and loan commitments purchased, sold, made or entered into in the Ordinary Course of Business; (vii) any lease of real or personal property entered into, other than in connection with foreclosed property; or (xviii) any agreement, whether in writing issuance of capital stock or otherwise, Rights to take any action described in this section by the acquire capital stock of Company or any of its Subsidiaries.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement and except as disclosed in the Filed Company SEC Documents or as expressly permitted pursuant to Section 4.01(a)(i) through (xvi), since the date of the most recent audited financial statements included in the Filed Company Balance SheetSEC Documents, the Company has and its Subsidiaries have conducted its business their respective businesses only in the ordinary course of business consistent with past practice practice, and there has not been: (i) been any Material Adverse Change to Change, and from such date until the Company, date hereof there has not been (iii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any capital stock of the Company’s Company or any of its Subsidiaries’ capital stock, other than dividends or distributions by a direct or indirect wholly owned Subsidiary of the Company to its shareholders, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of the Company’s capital stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementssecurities, (iii) any split, combination or reclassification of any capital stock of the Company’s Company or any of its Subsidiaries’ Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) (A) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or its Subsidiaries of any increase in compensation, bonus or fringe or other benefits or any granting of any type of compensation or benefits to any current or former director, officer, employee or consultant not previously receiving or entitled to receive such type of compensation or benefit, except for normal increases in cash compensation (including cash bonuses) in the ordinary course of business consistent with past practice or as was required under any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (B) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries of any right to receive any increase in severance or termination pay, or (C) any entry by the Company or any of its Subsidiaries into into, or any licensing amendments of, (1) any employment, deferred compensation, consulting, severance, change of control, termination or indemnification agreement or any other agreement with regard to the disposition or involving any current or former director, officer, employee or consultant of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries or (2) any agreement with any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of a nature contemplated by this Agreement (all such agreements under this clause (C), collectively, "Company Benefit Agreements"), (D) any adoption of, any amendment to or any termination of any debts Company Benefit Plan, or waiver (E) any payment of any claims benefit under, or rights the grant of material valueany award under, or any amendment to, or termination of, any bonus, incentive, performance or other compensation plan or arrangement, Company Benefit Agreement or Company Benefit Plan (including in respect of stock options, "phantom" stock, stock appreciation rights, restricted stock, "phantom" stock rights, restricted stock units, deferred stock units, performance stock units or other stock-based or stock-related awards or the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder) except as required to comply with applicable law or any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (ixv) any saledamage, transfer destruction or other disposition outside loss to any tangible asset of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, whether or not covered by insurance, that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect, (xvi) any agreementchange in accounting methods, whether in writing principles or otherwise, to take any action described in this section practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vii) any material tax election or any settlement or compromise of its Subsidiariesany material income tax liability.

Absence of Certain Changes or Events. Since Except as disclosed in the Chancellor SEC Documents or except as disclosed in writing by Chancellor to LIN in a disclosure letter (the "Chancellor Disclosure Letter") prior to the execution and delivery of the Agreement, or as otherwise agreed to in writing after the date hereof by LIN, or as expressly permitted by this Agreement, since the date of the Company Balance Sheetmost recent audited financial statements included in the Chancellor SEC Documents, the Company has Chancellor and its subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice course, and there has not been: been (i) any change which could reasonably be expected to have a Chancellor Material Adverse Change to Effect (including as a result of the Companyconsummation of the transactions contemplated by this Agreement), (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s Chancellor's currently outstanding capital stock or any (other securities than the payment of regular cash dividends on the Company or its Subsidiaries or any optionsChancellor 7% Convertible Preferred Stock and Chancellor $3.00 Convertible Preferred Stock, warrantsand other than the payment of dividends (including accrued dividends) on the 12% Exchangeable Preferred Stock, calls or rights to acquire any such shares or $0.01 par value, and 12 1/4% Series A Senior Cumulative Exchangeable Preferred Stock, $0.01 par value, of Chancellor Operating Subsidiary, in each case in accordance with usual record and payment dates (other securities except for repurchases from employees following their termination pursuant to than accrued and unpaid dividends paid on the terms of their pre-existing stock option or purchase agreements12% Exchangeable Preferred Stock)), (iii) any split, combination or reclassification of any of the Company’s its outstanding capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ outstanding capital stock, (iv) entry (x) any granting by the Company Chancellor or any of its Subsidiaries into subsidiaries to any licensing director, officer or other agreement with regard to the disposition employee or independent contractor of Chancellor or any of its subsidiaries of any material intellectual property other than licensesincrease in compensation or acceleration of benefits, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except in the ordinary course of business consistent with past practice, (v) any material change by the Company prior practice or as was required under employment agreements in its accounting methods, principles or practices, except effect as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside date of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiaries.most recent audited

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement or the transactions contemplated hereby and except as disclosed in the Company SEC Documents filed and publicly available prior to the date of this Agreement (the "Company Filed SEC Documents"), since the date of the most recent audited financial statements included in the Company Balance SheetFiled SEC Documents, the Company has and its subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice course, and since such date there has not been: been (i1) any Material Adverse Change material adverse change with respect to the Company, (ii2) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ 's capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii3) any split, combination or reclassification of any of the Company’s 's capital stock or any issuance or the authorization of its Subsidiaries’ any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, (iv4) entry (A) any granting by the Company or any of its Subsidiaries into subsidiaries to any licensing current or former director, consultant, executive officer or other agreement with regard employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for normal increases in cash compensation and the granting of Stock Options, in each case prior to the disposition date of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into this Agreement in the ordinary course of business consistent with past practice, or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the Company Filed SEC Documents, (vB) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation granting by the Company or any of its Subsidiaries subsidiaries to any such current or former director, consultant, executive officer or employee of any debts increase in severance or waiver termination pay, except as was required under employment agreements in effect as of any claims or rights the date of material valuethe most recent audited financial statements included in the Company Filed SEC Documents, (ixC) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) entry by the Company or any of its Subsidiariessubsidiaries into, or any amendment of, any Benefit Agreement or (xD) any agreementamendment to, whether or modification of, any Stock Option, (5) except insofar as may have been required by a change in writing GAAP, any change in accounting methods, principles or otherwise, to take any action described in this section practices by the Company or any of its Subsidiariessubsidiaries materially affecting their respective assets, liabilities or businesses, (6) any tax election that individually or in the aggregate could reasonably be expected to adversely affect in any material respect the tax liability or tax attributes of the Company or any of its subsidiaries or (7) any settlement or compromise of any material income tax liability.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement and except as disclosed in the Filed Company SEC Documents or as expressly permitted pursuant to Section 4.01(a)(i) through (xvi), since the date of the most recent audited financial statements included in the Filed Company Balance SheetSEC Documents, the Company has conducted its business only in the ordinary course of business consistent with past practice practice, and there has not been: (i) been any Material Adverse Change to Change, and from such date until the Company, date hereof there has not been (iii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any capital stock of the Company’s or any of its Subsidiaries’ capital stock, or (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementssecurities, (iii) any split, combination or reclassification of any capital stock of the Company’s Company or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ capital stock, (iv) entry (A) any granting by the Company to any current or former director, officer, employee or consultant of the Company of any increase in compensation, bonus or fringe or other benefits or any of its Subsidiaries into any licensing or other agreement with regard to the disposition granting of any material intellectual property other than licensestype of compensation or benefits to any current or former director, distribution agreementsofficer, advertising agreementsemployee or consultant not previously receiving or entitled to receive such type of compensation or benefit, sponsorship agreements or merchant program agreements entered into except for normal increases in cash compensation (including cash bonuses) in the ordinary course of business consistent with past practicepractice or as was required under any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (vB) any material change granting by the Company in its accounting methodsto any current or former director, principles officer, employee or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by consultant of the Company of any right to receive any increase in severance or termination pay, or (C) any entry by the Company into, or any amendments of its assets(1) any employment, includingdeferred compensation, without limitationconsulting, writing down severance, change of control, termination or indemnification agreement or any other agreement, plan or policy with or involving any current or former director, officer, employee or consultant of the value Company or (2) any agreement with any current or former director, officer, employee or consultant of capitalized inventory the Company, the benefits of which are contingent, or writing off notes the terms of which are materially altered, upon the occurrence of a transaction involving the Company of a nature contemplated by this Agreement (all such agreements under this clause (C), collectively, “Company Benefit Agreements”), (D) any adoption of, any amendment to or accounts receivable any termination of any Company Benefit Plan, or (E) any payment of any benefit under, or the grant of any award under, or any amendment to, or termination of, any bonus, incentive, performance or other than compensation plan or arrangement, Company Benefit Agreement or Company Benefit Plan (including in respect of stock options, “phantom” stock, stock appreciation rights, restricted stock, “phantom” stock rights, restricted stock units, deferred stock units, performance stock units or other stock-based or stock-related awards or the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder) except for normal increases in cash compensation (including cash bonuses) in the ordinary course of business consistent with past practicepractice or as required to comply with applicable law or any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (v) any damage, destruction or loss to any asset of the Company, whether or not covered by insurance, that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect, (vi) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company material tax election or any of its Subsidiaries settlement or compromise of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesincome tax liability.

Absence of Certain Changes or Events. Since Except as expressly contemplated by this Agreement or as set forth in Section 4.08 of the Disclosure Schedule, since July 10, 2006 through the date of the Company Balance Sheethereof, the Company has conducted its business only in the ordinary course of business consistent with past practice and and, since such date through the date hereof, (i) there has not been: (i) occurred any Material Adverse Change Effect or an event or development that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or any event or development that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the performance of this Agreement or any Ancillary Agreement by the Company and (ii) the Company has not (A) issued, sold, pledged, disposed, granted or encumbered any shares of any class of capital stock or other Equity Interests in or of the Company, (iiB) sold, pledged, disposed, transferred, leased, licensed, guaranteed or encumbered any declaration, setting aside material property or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any assets of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (vC) acquired (including by merger, consolidation, or acquisition of stock or assets or any other business combination) any material change by the Company in its accounting methodscorporation, principles partnership, other business organization or practices, except as required by concurrent changes in GAAP or by the Commissionany division thereof, (viD) incurred any material revaluation by the Company of indebtedness for borrowed money which, individually or together with all such other indebtedness, exceeds $200,000, (E) granted any security interest in any of its assetsmaterial assets except for such security interests as would constitute a Permitted Lien, including, without limitation, writing down the value (F) made or authorized any capital expenditure or purchase of capitalized inventory or writing off notes or accounts receivable fixed assets other than in the ordinary course of business, (G) increased the compensation or benefits payable to or to become payable to its directors, officers or employees, except for increases in accordance with past practices in salaries or wages of employees of the Company which are not across-the-board increases, or granted any rights to severance or termination pay to, or entered into any employment or severance agreement with, any director, officer or other employee (other than severance for employees other than officers, in accordance with past practice, in connection with such employee’s termination of employment with the Company) of the Company, or taken any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Plan, (H) made, revoked or changed any election in respect of Taxes, adopted or changed any material accounting method in respect of Taxes or settled or compromised any material claim, notice, audit report, liability or assessment in respect of Taxes, (I) made any material change, other than changes required by GAAP or in the ordinary course of business, with respect to accounting policies or procedures of the Company, (J) pre-paid any long-term debt or paid, discharged or satisfied any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except for such payments, discharges or satisfaction of claims as were in the ordinary course of business consistent with past practicepractice or (K) written up, (vii) any communication from written down or written off the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries book value of any debts material assets, or waiver a material amount of any claims or rights of material valueother assets, (ix) any sale, transfer or other disposition outside of than in the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) except as required by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesGAAP.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance Sheet, the business of the Company and its subsidiaries has been conducted its business only in the ordinary course of business consistent with past practice practices (other than the transactions contemplated by this Agreement and the Transaction Option Agreement) and there is not and has not been: been (i) any event, occurrence, development or state of circumstances or facts that has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company or give rise to a Material Adverse Change to (as defined in Section 9.3(c)) on the Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s 's or any of its Subsidiaries’ subsidiaries' capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s 's capital stock or any other securities of the Company or its Subsidiaries subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases which are not, individually or in the aggregate, material in amount from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the CommissionGAAP, (viiv) any material revaluation by the Company of any of its material assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiariesbusiness, or (xv) any agreementcondition, whether event or occurrence which, individually or in writing the aggregate, could reasonably be expected to prevent or otherwise, to take any action described in this section by materially delay the ability of the Company to consummate the transactions contemplated by this Agreement and the Transaction Option Agreement or any of perform its Subsidiariesobligations hereunder or thereunder.

Absence of Certain Changes or Events. Since From the Interim Balance Sheet Date through the date of the Company Balance Sheethereof, the Company has conducted its business only in the ordinary course of business consistent with past practice and there has not been, occurred or arisen: (ia) any event or condition of any character that has had or would be reasonably expected to have a Material Adverse Change to Effect on the Company, ; (iib) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiariessubsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities securities, except for repurchases from employees Employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, agreements existing as of the Interim Balance Sheet Date; (iiic) any split, combination or reclassification of any of the Company’s or any of its Subsidiariessubsidiaries’ capital stock; (d) any granting by the Company or any of its subsidiaries of any increase in compensation or fringe benefits to any Employee (other than Consultants who are not Significant Consultants) or any payment by the Company or any of its subsidiaries of any bonus or any entry by the Company or one of its subsidiaries into any Contract (or amendment of an existing Contract) to grant or provide severance, acceleration of vesting, termination pay or other similar benefits; (ive) the execution of any employment Contract or service Contract, the extension of the term of any existing employment Contract or service Contract with any Employee, or any entry or other modification by the Company or any of its subsidiaries of any employment, severance, termination or indemnification Contract or any Contract the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated hereby; (f) entry by the Company or any of its Subsidiaries subsidiaries into (i) any licensing or other agreement with regard to Contract providing for the use, acquisition or disposition of any material intellectual property Intellectual Property (as defined in Section 2.19 hereof) other than licenses, distribution agreements, advertising agreements, sponsorship (A) licenses of commercially available third party software applications for internal use by the Company or otherwise in the Company’s ordinary course of business consistent with past practice and (B) confidentiality agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, or (vii) any amendment or consent with respect to any material licensing or other Contract providing for the use, acquisition or disposition of any Intellectual Property, other than confidentiality agreements in the ordinary course of business consistent with past practice; (g) any change by the Company in its accounting methods, principles or practicespractices (including any change in depreciation or amortization policies or rates or revenue recognition policies), except as required by concurrent changes in GAAP or by the Commission, GAAP; (vih) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or including writing off promissory notes or accounts receivable other than in the ordinary course receivable, or any sale of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting assets of the Common Stock, Company; (viiii) any cancellation entry by the Company or any of its Subsidiaries subsidiaries into any Contract (other than the Voting Agreements) filed or required to be filed by the Company with the SEC; (j) the incurrence, creation or assumption of any debts material Encumbrance (other than a Permitted Encumbrance) or waiver any discharge of any claims material Encumbrance, any material Liability for borrowed money or rights any material Liability or obligation as guaranty or surety with respect to the obligations of material valueothers who are not wholly-owned subsidiaries of the Company, (ixk) any purchase, offer to purchase, sale, offer to sell, option to purchase or sell, agreement to transfer any interest in, or any lease, right to use, sublease or other disposition outside of the ordinary course of business occupancy, of any properties or assets Company Real Estate (real, personal or mixed, tangible or intangibleas defined in Section 2.15(a)) by the Company or its subsidiaries; and (l) any announcement of or any agreement by the Company, any of its Subsidiariessubsidiaries, or (x) any agreement, whether in writing or otherwiseEmployee on behalf of the Company, to take do any action of the things described in this section by the Company preceding clauses (a) through (k) (other than negotiations or any of its Subsidiariesagreements with Parent and Merger Sub regarding the Transactions).

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement or the date of the Company Balance Sheettransactions contemplated hereby, since January 1, 2000, the Company has and its subsidiaries have conducted its business their respective businesses only in the ordinary course of business consistent with past practice course, and there has not been: been (i) the occurrence of an event that could reasonably be expected to result in any Material Adverse Change to material adverse effect on the Company, except for an effect due to changes affecting the economy or financial markets generally other than such changes which affect the Company in a manner which is not proportionate with the effect of such changes on similarly situated companies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ 's capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s 's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Stock Options or Company Warrants, in each case awarded prior to the date hereof in accordance with their present terms, (iv) prior to the date hereof (A) any granting by the Company or any of its Subsidiaries’ capital stocksubsidiaries to any current or former director, executive officer or other Key Employee of the Company or its subsidiaries of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business, (ivB) any granting by the Company or any of its subsidiaries to any such current or former director, executive officer or Key Employee of any increase in severance or termination pay, or (C) any entry by the Company or any of its Subsidiaries into subsidiaries into, or any licensing amendment of, any employment, deferred compensation, consulting, severance, termination or other indemnification agreement with regard to the disposition of any material intellectual property other than licensessuch current or former director, distribution agreements, advertising agreements, sponsorship agreements executive officer or merchant program agreements entered into in the ordinary course of business consistent with past practiceKey Employee, (v) except insofar as may have been disclosed in Company SEC Documents or required by a change in GAAP, any material change in accounting methods (or underlying assumptions), principles or practices by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of affecting its assets, liabilities or business, including, without limitation, writing down any reserving, renewal or residual method, or estimate of practice or policy, (vi) any tax election by the value Company or its subsidiaries or any settlement or compromise of capitalized inventory any income tax liability by the Company or writing off notes or accounts receivable its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (vii) any material insurance transaction other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company transaction or any commitment, or series of its Subsidiaries related transactions or commitments, to acquire real estate for VOI development in excess of any debts or waiver of any claims or rights of material value, $1,000,000 (ix) any sale, transfer material labor trouble or claim of wrongful discharge or other disposition outside of the ordinary course of business of any properties unlawful labor practice or assets (realaction, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section improper subjection of VOI inventory by the Company to the FairShare Program or (xi) any agreement or commitment (contingent or otherwise) to do any of its Subsidiariesthe foregoing.

Absence of Certain Changes or Events. Since Except as disclosed in the Company SEC Documents filed with the SEC prior to the date of this Agreement or as disclosed in Section 3.7 of the Company Balance SheetLetter, since October 31, 1997 (A) the Company has conducted and its business only Subsidiaries have not incurred any material liability or obligation (indirect, direct or contingent) or, through the date hereof, entered into any material oral or written agreement or other transaction that is not in the ordinary course of business consistent with past practice and there has not been: (i) any or that would result in a Material Adverse Change to Effect on the Company, (iiB) the Company and its Subsidiaries have not sustained any loss or interference with their business or properties from fire, flood, windstorm, accident or other calamity (whether or not covered by insurance) that has had a Material Adverse Effect on the Company, (C) through the date hereof, there has been no change in the capital stock of the Company except for the issuance of shares of the Company Common Stock pursuant to Company Stock Options and no dividend or distribution of any kind declared, paid or made by the Company on any class of its stock, (D) there has not been (x) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of granting by the Company’s Company or any of its Subsidiaries’ capital stock, or Subsidiaries to any purchase, redemption or other acquisition by officer of the Company or any of its Subsidiaries of any increase in compensation, except in the ordinary course of business consistent with prior practice or as was required under employment agreements in effect as of the Company’s capital stock or any other securities date of the most recent audited financial statements included in the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsSEC Documents, (iiiy) any split, combination or reclassification of any of granting by the Company’s Company or any of its Subsidiaries’ capital stock, Subsidiaries to any such officer of any increase in severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Company SEC Documents or (ivz) any entry by the Company or any of its Subsidiaries into any licensing employment, severance or other termination agreement with regard to any such officer and (E) there has been no event causing a Material Adverse Effect on the disposition of Company, nor any material intellectual property other than licensesdevelopment that would, distribution agreements, advertising agreements, sponsorship agreements individually or merchant program agreements entered into in the ordinary course of business consistent with past practiceaggregate, (v) any material change by result in a Material Adverse Effect on the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesCompany.

Absence of Certain Changes or Events. Since the date of the Company Balance Sheet, the Company has and its Subsidiaries have conducted its business only their businesses in the ordinary course of business course, in a manner consistent with past practice practice, and there has not been: (i) any event, occurrence or development of a state of circumstances or facts which has had or could reasonably be expected to have a Material Adverse Change to the Company, Effect; (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, with respect to any shares of capital stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of the Company’s capital stock or any other securities of of, or other ownership interests in, the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, ; (iii) any amendment of any term of any outstanding security of the Company or any of its Subsidiaries; (iv) entry any incurrence, assumption or guarantee by the Company (other than guarantees of its Subsidiaries' obligations) or any of its Subsidiaries (other than guarantees of their Subsidiaries' obligations) of any indebtedness for borrowed money; (v) any creation or assumption by the Company or any of its Subsidiaries into of any licensing Lien (except as contemplated by this Agreement) on any asset; (vi) any making of any loan, advance or capital contributions to or investment in any person other than loans, advances or capital contributions to or investments in wholly owned Subsidiaries made in the ordinary course of business consistent with past practices; (vii) any condemnation, seizure, damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or assets of the Company or any of its Subsidiaries; (viii) any transaction or commitment made, or any contract or agreement with regard entered into, amended or terminated by the Company or any of its Subsidiaries or any relinquishment by the Company or any Subsidiary of any contract or other right, in either case, material to the disposition Company and its Subsidiaries taken as a whole; (ix) any change in any method of accounting or accounting practice by the Company or any of its Subsidiaries; (x) any (A) grant of any material intellectual property severance or termination pay to any director, officer or employee of the Company or any of its Subsidiaries, (B) entering into or renewal of any employment, deferred compensation, severance, retirement or other than licensessimilar agreement (or any amendment to any such existing agreement) with any director, distribution officer or employee of the Company or any of its Subsidiaries, (C) increase in benefits payable under any existing severance or termination pay policies or employment agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into (D) except in the ordinary course of business consistent with past practice, (v) any material change by the Company increase in its accounting methodscompensation, principles bonus or practicesother benefits payable to directors, except as required by concurrent changes in GAAP officers or by the Commission, (vi) any material revaluation by the Company employees of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, Subsidiaries; (ixxi) any salelabor dispute, transfer other than routine individual grievances, or other disposition outside any activity or proceeding by a labor union or representative thereof to organize any employees of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees; (xxii) any agreementcapital expenditure, whether or commitment for a capital expenditure, for additions or improvements to property, plant and equipment in writing excess of $500,000, individually or otherwise$1,000,000 in the aggregate other than expenditures for planned build out of the Company's network that are in accordance with the budget agreed to between Parent and the Company; (xiii) except for capital expenditures and commitments referred to in subsection (xii) above, any acquisition or disposition of any material assets or properties or any Intellectual Property (as defined in Section 3.11) in one or more transactions, or any commitment in respect thereof; (xiv) any express or deemed election for Tax (as defined below) purposes or any offer to take settle or compromise or any action described settlement or compromise of any liability with respect to Taxes (as defined below); (xv) any offers to existing Subscribers (as defined in this section Section 3.19(i)) for renewal at rates below the standard rates charged by the Company or any of and its Subsidiaries; or (xvi) any Outage (as defined below). As used herein, "Outage" means any complete loss of any service to any System, including but not limited to any complete loss of network access, telephone, video, audio, Internet, data, bandwidth access, mail, web or other services.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement, between December 31, 2005 and the date of this Agreement, (a) the Company Balance Sheet, the Company has and its Subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice and practice; (b) there has not been: (i) been any Material Adverse Change to Effect on the Company, ; (iic) there has not been any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, GAAP; (vid) there has not been any material revaluation by the Company of any of its assets, including, without limitation, including a material writing down of the value of capitalized inventory or a material writing off of notes or accounts receivable receivable; (e) to the Knowledge of the Company, no customer which represented five percent or more of the Company's consolidated product revenue for the year ended December 31, 2005 or the quarter ended March 31, 2006 has materially reduced or communicated to the Company or any of its Subsidiaries (orally, in writing or otherwise) an intent to materially reduce the quantity of its purchases from or materially reduce price or materially change other than quantitative or qualitative terms of its business relationship with the Company or its Subsidiaries; (f) to the Knowledge of the Company, no supplier which provides goods or services to the Company or a Subsidiary of the Company (which cannot be replaced within thirty days without significant incremental cost) has materially reduced its supply to the Company or communicated to the Company or any of its Subsidiaries (orally, in writing or otherwise) an intent to materially increase the ordinary course price, materially reduce supply or materially change the quantitative or qualitative terms of its business consistent relationship with past practicethe Company or its Subsidiaries; (g) to the Knowledge of the Company, no key employee of the Company or its Subsidiaries has communicated to the Company or any of its Subsidiaries (viiorally, in writing or otherwise) an intent to terminate or otherwise significantly decrease his or her contribution to the Company or its Subsidiaries; and (h) there has not been any communication from the Nasdaq Global Market material damage, destruction or other material casualty loss with respect to the delisting of the Common Stockany tangible asset or tangible property owned, (viii) any cancellation leased or otherwise used by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, having a value prior to take any action described in this section by the Company or any of its Subsidiariessuch losses exceeding $25 million.

Absence of Certain Changes or Events. Since As of the date hereof, except as disclosed in the Harveys SEC Reports filed prior to the date hereof or in Section 3.6 of the Harveys Disclosure Schedule, since the date of the Company Harveys Balance Sheet, the Company has Harveys and its Subsidiaries have conducted its business their businesses only in the ordinary course of business and in a manner consistent with past practice and and, since such date, there has not been: been (i) any event, development, state of affairs or condition, or series or combination of events, developments, states of affairs or conditions, which, individually or in the aggregate, has had or is reasonably likely to have a Harveys Material Adverse Change to the Company, Effect; (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to Harveys or any of its Subsidiaries which is reasonably likely to have a Harveys Material Adverse Effect; (iii) any material change by Harveys in its accounting methods, principles or practices of which Xxxxxx'x has not previously been informed; (iv) any revaluation by Harveys of any of its assets which is reasonably likely to have a Harveys Material Adverse Effect; (v) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, any to the equity interests of the Company’s Harveys or of any of its Subsidiaries’ capital stock, or any purchaseredemption, redemption purchase or other acquisition by the Company Harveys or any of its Subsidiaries of any securities of the Company’s capital stock Harveys or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, Subsidiaries; (iiivi) any split, combination or reclassification of any of the Company’s Harveys' capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for, shares of Harveys' capital stock; (vii) any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option, stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any officers or key employees of Harveys or any Subsidiary other than increases which would not be material, individually or in the aggregate, with respect to such officers or employees receiving such benefit or compensation (based on a comparison to benefits and compensation received in the year ended November 30, 2000); (viii) any entry into, renewal, modification or extension of, any material contract, arrangement or agreement between Harveys or its Subsidiaries’ capital stock, (iv) entry by on the Company one hand, and with any other party, on the other hand, except for contracts, arrangements or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into made in the ordinary course of business consistent with past practice, or as contemplated by this Agreement; or (vix) any material change by the Company in its accounting methods, principles settlement of pending or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company threatened litigation involving Harveys or any of its Subsidiaries of (whether brought by a private party or a Governmental Entity) other than any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, settlement which is not reasonably likely to take any action described in this section by the Company or any of its Subsidiarieshave a Harveys Material Adverse Effect.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with or expressly permitted by this Agreement and the VeraSun Shareholders Agreement, since December 31, 2006, there has not been any Material Adverse Change in US BioEnergy. Except as contemplated by this Agreement or the VeraSun Shareholders Agreement, from December 31, 2006 through the date of the Company Balance Sheetthis Agreement, the Company has US BioEnergy and its Subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice business, and since such date through the date of this Agreement there has not been: been (i) any Material Adverse Change to the Company, (ii1) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the CompanyUS BioEnergy’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii2) any split, combination or reclassification of any of the CompanyUS BioEnergy’s capital stock or any issuance or the authorization of its Subsidiaries’ any issuance of any other securities in respect of, in lieu of or in substitution for shares of US BioEnergy’s capital stock, (iv3) entry (A) any granting by the Company US BioEnergy or any of its Subsidiaries into to any licensing current or former director, executive officer, other agreement with regard to the disposition employee or independent contractor of US BioEnergy or its Subsidiaries of any material intellectual property increase in compensation, bonus or other than licensesbenefits, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except for normal increases in cash compensation in the ordinary course of business consistent with past practiceor as was required under any employment agreements in effect as of the date of the most recent audited financial statements included in the US BioEnergy Filed SEC Documents, (vB) any granting by US BioEnergy or any of its Subsidiaries to any such current or former director, executive officer, employee or independent contractor of any material increase in change in control, severance or termination pay, (C) any adoption, termination, entry by US BioEnergy or any of its Subsidiaries into, or any material amendments of, any US BioEnergy Benefit Plan or US BioEnergy Benefit Agreement or (D) any material amendment to, or material modification of, any US BioEnergy Stock Award, (4) any damage, destruction or loss, whether or not covered by insurance, that, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect on US BioEnergy, (5) except insofar as may have been required by a change by the Company in its GAAP, any change in accounting methods, principles or practices, except as required practices by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company US BioEnergy or any of its Subsidiaries materially affecting the consolidated financial position or results of operations of US BioEnergy or (6) any tax election or any settlement or compromise of any debts income tax liability that, individually or waiver in the aggregate, is reasonably likely to adversely affect the tax liability or tax attributes of US BioEnergy or any of its Subsidiaries in any material respect or any settlement or compromise of any claims material income tax liability. Neither US BioEnergy nor any of its Subsidiaries is a party to, or rights has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract or arrangement (including any Contract relating to any transaction or relationship between or among US BioEnergy and any of material valueits Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand or any “off-balance sheet arrangements” (ixas defined in Item 303(a) any sale, transfer or other disposition outside of Regulation S-K of the ordinary course SEC)), where the result, purpose or intended effect of business such Contract is to avoid disclosure of any properties material transaction involving, or assets (realmaterial liabilities of, personal or mixed, tangible or intangible) by the Company US BioEnergy or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company US BioEnergy’s or any of its SubsidiariesSubsidiary’s financial statements or other US BioEnergy SEC Documents.

Absence of Certain Changes or Events. Since Except as disclosed in the SEC Documents filed and publicly available prior to the date of this Agreement and the Company Balance Sheet1999 Form 10-K (the "COMPANY FILED SEC DOCUMENTS") or in Section 4.1(g) of the Disclosure Schedule, since December 31, 1998, the Company has conducted its business only in the ordinary course of business consistent with past practice practice, and there has not been: been (i) except for the restructuring announced by the Company in 1999 and described in Section 4.1(g) of the Disclosure Schedule, any event, occurrence or development of a state of circumstances which has had or could reasonably be expected to have a Material Adverse Change to the CompanyEffect, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s 's capital stock or any of its Subsidiaries’ capital stock, or any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries subsidiaries of any outstanding shares of the Company’s capital stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementssubsidiaries, (iii) any split, combination or reclassification of any of the Company’s its capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ capital stock, (iv) (A) any granting by the Company or any of its subsidiaries to any current or former director, officer or employee of the Company or any of its subsidiaries of any increase in compensation or benefits or severance or termination pay or benefits, except in the ordinary course of business consistent with past practice or as was required under employment, severance or termination agreements or plans in effect as of December 31, 1998, or (B) any entry by the Company or any of its Subsidiaries subsidiaries into any licensing employment, deferred compensation, severance or other termination agreement with regard to the disposition of any material intellectual property other than licensessuch current or former director, distribution agreementsofficer or employee, advertising agreements, sponsorship agreements or merchant program agreements entered into except in the ordinary course of business consistent with past practice, (v) any material damage, destruction or loss, whether or not covered by insurance, that has had or could reasonably be expected to have a Material Adverse Effect, (vi) any change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation practices by the Company of or any of its assetssubsidiaries, including(vii) any amendment of any material term of any outstanding security of the Company or any of its subsidiaries, without limitation(viii) any incurrence, writing down assumption or guarantee by the value Company or any of capitalized inventory or writing off notes or accounts receivable its subsidiaries of any indebtedness for borrowed money other than in the ordinary course of business consistent with past practice, but in no event in the amount of more than $1,000,000 in the aggregate, (viiix) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation creation or assumption by the Company or any of its Subsidiaries subsidiaries of any debts or waiver of Lien on any claims or rights of material value, (ix) any sale, transfer or asset other disposition outside of than in the ordinary course of business consistent with past practice, but in no event in the amount of more than $1,000,000 for any one transaction or $5,000,000 in the aggregate, (x) any making of any properties loan, advance or assets capital contributions to or investment in any person other than to a subsidiary that is wholly owned (realother than director qualifying shares) or other than in the ordinary course of business consistent with past practice, personal but in no event in the amount of more than $1,000,000 for any one transaction or mixed$5,000,000 in the aggregate and other than investments in cash equivalents made in the ordinary course of business consistent with past practice, tangible (xi) any transaction or intangible) commitment made, or any contract or agreement entered into, by the Company or any of its Subsidiaries, subsidiaries relating to its assets or business (xincluding the acquisition or disposition of any assets or the merger or consolidation with any person) or any agreement, whether in writing or otherwise, to take any action described in this section relinquishment by the Company or any of its Subsidiariessubsidiaries of any contract or other right, in either case material to the Company and its subsidiaries taken as a whole, representing commitments on behalf of the Company or any of its subsidiaries of more than $1,000,000 for any transaction or $5,000,000 for any series of related transactions, or otherwise in the ordinary course of business consistent with past practice and those contemplated by this Agreement, (xii) any material labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any of its subsidiaries, which employees were not subject to a collective bargaining agreement at December 31, 1998, or any material lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees or (xiii) any agreement, commitment, arrangement or undertaking by the Company or any of its subsidiaries to perform any action described in clauses (i) through (xii).

Absence of Certain Changes or Events. Since the date of Except as disclosed in the Company SEC Documents or as set forth on Schedule 2.02(g), since December 31, 2017 (the "Company Balance Sheet, Sheet Date") the Company has conducted its business only in the ordinary course of business consistent with past practice in light of its current business circumstances, and there is not and has not beenbeen any: (i) any Material Adverse Change material adverse change with respect to the Company, ; (ii) any declarationevent which, setting aside or payment if it had taken place following the execution of any dividend onthis Agreement, or other distribution (whether in cash, stock or property) in respect of, any would not have been permitted by this Agreement without prior consent of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, ; (iii) any splitcondition, combination event or reclassification of any occurrence which could reasonably be expected to prevent, hinder or materially delay the ability of the Company’s or any of its Subsidiaries’ capital stock, Company to consummate the transactions contemplated by this Agreement; (iv) entry by the Company any incurrence, assumption or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation guarantee by the Company of any indebtedness for borrowed money other than in the ordinary course and in amounts and on terms consistent with past practices or as disclosed to the Company in writing; (v) creation or other incurrence by the Company of any lien on any asset other than in the ordinary course consistent with past practices; (vi) transaction or commitment made, or any contract or agreement entered into, by the Company relating to its assets or business (including the acquisition or disposition of any assets) or any relinquishment by the Company of any contract or other right, includingin either case, without limitationmaterial to the Company, writing down other than transactions and commitments in the value ordinary course consistent with past practices and those contemplated by this Agreement; (vii) payment, prepayment or discharge of capitalized inventory or writing off notes or accounts receivable liability other than in the ordinary course of business consistent with past practiceor any failure to pay any liability when due; (viii) write-offs or write-downs of any assets of the Company; (ix) creation, termination or amendment of, or waiver of any right under, any material contract of the Company; (viix) any communication from damage, destruction or loss having, or reasonably expected to have, a material adverse effect on the Nasdaq Global Market Company; (xi) other condition, event or occurrence which individually or in the aggregate could reasonably be expected to have a material adverse effect or give rise to a material adverse change with respect to the delisting Company; or (xii) agreement or commitment to do any of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesforegoing.

Absence of Certain Changes or Events. Since the date of Except as disclosed in the Company Balance SheetSEC Documents or as contemplated by this Agreement, since July 31, 1999 the Company has and its subsidiaries have conducted its business their respective businesses only in the ordinary course of business consistent with past practice course, and there has not been: been (i) any Material Adverse Change to the CompanyEffect, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cashwith respect to, stock or property) in respect repurchase or redemption of, any of the Company’s or any 's capital stock other than repurchases of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition Company Common Stock by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing Company's stock option repurchase program or purchase agreementsto fund the Company's Deferred Compensation Incentive Plan or the Company's 401(k) Plan, (iii) any split, combination or reclassification of any of the Company’s 's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ capital stock, (iv) entry any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or business, except insofar as may have been required by a change in generally accepted accounting principles (v) any salary or compensation increases to any employee of the Company or of any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into Company's subsidiaries except in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation increase in indebtedness for borrowed money incurred by the Company of Company, or any of its assetssubsidiaries, including, without limitation, writing down the value nor any incurrence of capitalized inventory any other obligation or writing off notes liability (fixed or accounts receivable other than contingent) except in the ordinary course of business and consistent with past practicepractices, (vii) any communication from the Nasdaq Global Market transaction with respect to the delisting a merger, consolidation, liquidation or reorganization of the Common StockCompany or any subsidiary of the Company other than such proceedings relating to this Agreement, or (viii) any cancellation agreement by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside subsidiary of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action of the actions described in this section by the Company or any of its Subsidiariesforegoing.

Absence of Certain Changes or Events. Since (a) Except as and to the extent disclosed in the Company SEC Reports filed on or before the date hereof, since June 30, 2004 (the “Company Balance Sheet Date”), (i) the Company and its Subsidiaries have not incurred any liability or obligation (indirect, direct or contingent), or entered into any oral or written agreement or other transaction, that is not in the ordinary course of business, (ii) the Company and its Subsidiaries have not sustained any material loss or material interference with their business or properties from fire, flood, windstorm, accident or other calamity (whether or not covered by insurance), (iii) there has been no change in the capital stock of the Company Balance Sheet, except for the issuance of shares of the Company has conducted its business only Common Stock pursuant to Company Stock Options, in the ordinary course of business consistent with past practice and practices; (iv) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its stock, (v) there has not been: been (iA) any Material Adverse Change to the Companyadoption of a new Company Plan (as hereinafter defined), (iiB) any declarationamendment to a Company Plan increasing benefits thereunder, setting aside or payment of (C) any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of granting by the Company’s Company or any of its Subsidiaries’ capital stock, or Subsidiaries to any purchase, redemption or other acquisition by executive officer of the Company or any of its Subsidiaries of any increase in compensation, except in the ordinary course of business consistent with prior practice or as was required under employment agreements in effect as of the Company’s capital stock or any other securities date of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsBalance Sheet Date, (iiiD) any split, combination or reclassification of any of granting by the Company’s Company or any of its Subsidiaries’ capital stockSubsidiaries to any such executive officer of any increase in severance or termination agreements in effect as of the Company Balance Sheet Date, or (ivE) any entry by the Company or any of its Subsidiaries into any licensing employment, severance or other termination agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commissionsuch executive officer, (vi) there has not been any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than change in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting amount or terms of the Common Stock, (viii) any cancellation by indebtedness of the Company or any of its Subsidiaries from the Balance Sheet Date, and (vii) other than amendment of the Company Rights Plan pursuant to Sections 3.30 and 5.9 hereof, amendment of any debts or waiver term of any claims or rights outstanding security of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesSubsidiary.

Absence of Certain Changes or Events. Since Except for any Subsidiary liabilities incurred in connection with this Agreement or the date of the Company Balance Sheettransactions contemplated hereby, since May 31, 2000, the Company has and its Subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice or as disclosed in any Company Reports, and there has not been: been (i) any change or event having, or that would reasonably be expected to have, a Company Material Adverse Change to the CompanyEffect, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ 's capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s 's capital stock or any substitution for shares of its Subsidiaries’ the Company's capital stock, except for issuances of Company Common Stock upon the exercise of options awarded prior to the date hereof in accordance with the Company Stock Plans, (iv) except as set forth in the Company Disclosure Letter (a) any granting by the Company or any Subsidiary, to any current or former director, executive officer or other key employee of the Company or any Subsidiary of any increase in compensation, bonus or other benefits, except for increases in the ordinary course of business or as was required under any employment agreements in effect as of the date of the most recent audited financial statements included in the Company Reports filed and publicly available prior to the date of this Agreement which have been disclosed to Parent in the manner described in Section 4.15, (b) any granting by the Company or any Subsidiary, to any such current or former director, executive officer or key employee of any increase in severance or termination pay or (c) any entry by the Company or any of its Subsidiaries into Subsidiary, into, or any licensing amendment of, any employment, deferred compensation, consulting, severance, termination or other indemnification agreement with regard to the disposition of any material intellectual property other than licensessuch current or former director, distribution agreements, advertising agreements, sponsorship agreements executive officer or merchant program agreements entered into in the ordinary course of business consistent with past practicekey employee, (v) any material change by except insofar as may have been disclosed in the Company Reports or required by a change in its GAAP, any change in accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation practices by the Company or any of Subsidiary, materially affecting its Subsidiaries of any debts assets, liabilities or waiver of any claims business or rights of material value, (ixvi) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by except insofar as may have been disclosed in the Company Reports, any tax election that individually or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, the aggregate would reasonably be expected to take any action described in this section by the have a Company or any of its SubsidiariesMaterial Adverse Effect.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement or the date of the Company Balance SheetTransactions, since September 30, 2003, the Company has conducted its business only in the ordinary course of business consistent with past practice course, and there has not been: been (i1) any Material Adverse Change to material adverse change in the Company, (ii2) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of to any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsstock, (iii3) any split, combination or reclassification of any of the Company’s capital stock or any issuance or the authorization of its Subsidiaries’ any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company’s capital stock, except for issuances of Company Common Stock under the Company Stock Option Plans, (iv4) entry (A) any granting by the Company to any director or executive officer of the Company of any of its Subsidiaries into any licensing increase in compensation, bonus or other agreement with regard to the disposition of any material intellectual property other than licensesbenefits, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except for normal increases in the ordinary course of business consistent or in connection with past practicethe hiring or promotion of any such executive officer or increases required under any employment agreements in effect as of the date of the most recent audited financial statements included in the Company SEC Documents filed and publicly available prior to the date of this Agreement (as amended to the date of this Agreement, the “Company Filed SEC Documents”), (vB) any material change granting by the Company to any such director or executive officer of any increase in its accounting methods, principles severance or practicestermination pay, except as required by concurrent changes in GAAP the ordinary course of business or by in connection with the Commissionhiring or promotion of any such executive officer, or (viC) any material revaluation entry by the Company of into, or any of its assetsamendment of, includingany employment, without limitationdeferred compensation, writing down the value of capitalized inventory consulting, severance, termination or writing off notes indemnification agreement with any such director or accounts receivable executive officer, other than in the ordinary course of business consistent or in connection with past practicethe hiring or promotion of any such executive officer, (vii5) except insofar as may be required by a change in GAAP, any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or business, (6) any communication from tax election that individually or in the Nasdaq Global Market with respect aggregate would reasonably be expected to the delisting of the Common Stock, (viii) any cancellation by have a material adverse effect on the Company or any of its Subsidiaries tax attributes or any settlement or compromise of any debts material income tax liability or waiver of any claims or rights of material value, (ix7) any sale, transfer or other disposition outside agreement to do any of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesforegoing.

Absence of Certain Changes or Events. Since December 31, 2005 there has not been, except where it would not have a Material Adverse Effect on the date of the Company Balance SheetParent Guarantor, the Company has conducted its or any of their Subsidiaries and except as permitted and/or required by the Merger Agreement (a) any material liability incurred by the Parent Guarantor, the Company or any of their Subsidiaries, other than current liabilities incurred in the ordinary course of business only consistent in type and amount with past practices, (b) any material asset or property of the Parent Guarantor, the Company or any of their Subsidiaries made subject to any Encumbrance of any kind (except pursuant to the Security Documents), (c) any cancellation of any debt owed to or claim held by the Parent Guarantor, the Company or any of their Subsidiaries, (d) any payment of dividends on, or other distribution with respect to, or any direct or indirect redemption, purchase or acquisition of, any shares of the capital stock or other securities of the Parent Guarantor, the Company or any of their Subsidiaries., (f) any disposition of any tangible or intangible material asset of the Parent Guarantor, the Company or any of their Subsidiaries, (g) any loan by the Parent Guarantor, the Company or any of their Subsidiaries to any officer, director, employee, consultant, agent, Affiliate or stockholder of the Parent Guarantor, the Company or any of their Subsidiaries (other than advances to such persons in the ordinary course of business consistent with past practice and there has practices in connection with bona fide business expenses), (h) any damage, destruction or loss (whether or not been: covered by insurance) of any asset of the Parent Guarantor, the Company or any of their Subsidiaries, (i) any Material Adverse Change extraordinary increase, direct or indirect, in the compensation paid or payable to any officer, director, employee, consultant or agent of the CompanyParent Guarantor, the Company or any of their Subsidiaries, (iij) any declaration, setting aside or payment write-down of the value of any dividend oninventory, or other distribution (whether in cashany write-off as uncollectible of any account or note receivable of the Parent Guarantor, stock the Company or property) in respect of, any of their Subsidiaries that is not consistent in type and amount with the Parent Guarantor’s, the Company’s or any of its their Subsidiaries’ capital stockpast practices or for which adequate amounts had not been reserved, (k) any change in the accounting methods, practices or any purchasepolicies followed by the Parent Guarantor, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its their Subsidiaries or any optionschange in depreciation or amortization policies or rates theretofore adopted, warrants, calls which has not been adequately provided for or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into disclosed in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesFinancial Statements.

Absence of Certain Changes or Events. Since Except as disclosed in the EWR SEC Documents or the EWR Disclosure Letter, since the date of the Company Balance Sheetmost recent audited financial statements included in EWR SEC Documents (the "EWR Financial Statement Date"), the Company has EWR and its Subsidiaries have conducted its their business only in the ordinary course (taking into account prior practices, including the acquisition of business consistent with past practice properties and issuance of securities) and there has not been: been (ia) any material adverse change in the business, financial condition or results of operations of EWR and its Subsidiaries taken as a whole (a "EWR Material Adverse Change Change"), nor has there been any occurrence or circumstance that with the passage of time would reasonably be expected to the Companyresult in a EWR Material Adverse Change, (iib) except for regular quarterly distributions not in excess of $0.41 per EWR Common Share or EWR Partnership Unit, respectively (or as necessary to maintain REIT status), in each case with customary record and payment dates, any authorization, declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option EWR Common Shares or purchase agreementsthe EWR OP Units, (iiic) any split, combination or reclassification of any of the Company’s EWR Common Shares or the EWR OP Units or any issuance or the authorization of its Subsidiaries’ capital stockany issuance of any other securities in respect of, in lieu of or in substitution for, or giving the right to acquire by exchange or exercise, shares of stock of EWR or partnership interests in EWR partnerships or any issuance of an ownership interest in, any EWR Subsidiary, (ivd) entry any damage, destruction or loss, whether or not covered by the Company insurance, that has or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practicewould have a EWR Material Adverse Effect, (ve) any material change by the Company in its accounting methods, principles or practices, except as required practices by concurrent changes in GAAP EWR or by the Commission, (vi) any material revaluation by the Company of any of EWR Subsidiary materially affecting its assets, includingliabilities or business, without limitation, writing down the value of capitalized inventory except insofar as may have been disclosed in EWR SEC Documents or writing off notes or accounts receivable other than required by a change in the ordinary course of business consistent with past practiceGAAP, (viif) any communication from the Nasdaq Global Market with respect to the delisting amendment of the Common Stockany employment, consulting, severance, retention or any other agreement between EWR and any officer or director of EWR or (viiig) any cancellation by the Company acquisition or disposition of any real property, or any of its Subsidiaries of any debts or waiver of any claims or rights of material valuecommitment to do so, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) made by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company EWR or any of its Subsidiaries.

Absence of Certain Changes or Events. Since Except as set forth in this Agreement or the schedules hereto, since the date of the Company Balance Sheetmost recent Prelude balance sheet described in Section 2.04 and included in the information referred to in Section 2.06. (a) There has not been (i) any material adverse change in the business, operations, properties, level of inventory, assets, or condition of Prelude or (ii) any damage, destruction, or loss to Prelude (whether or not covered by insurance) materially and adversely affecting the Company business, operations, properties, assets, or conditions of Prelude; (b) Prelude has conducted not (i) amended its articles of incorporation or bylaws; (ii) declared or made, or agreed to declare or make, any payment of dividends or distributions of any assets of any kind whatsoever to stockholders or purchased or redeemed, or agreed to purchase or redeem, any of its capital stock; (iii) waived any rights of value which in the aggregate are extraordinary or material considering the business only of Prelude; (iv) made any material change in its method of management, operation, or accounting; (v) entered into any other material transactions; (vi) made any accrual or arrangement for or payment of bonuses or special compensation of any kind or any severance or termination pay to any present or former officer or employee; (vii) increased the rate of compensation payable or to become payable by it to any of its officers or directors or any of its employees whose monthly compensation exceeds $1,000; or (viii) made any increase in any profit-sharing, bonus, deferred compensation, insurance, pension, retirement, or other employee benefit plan, payment, or arrangement made to, for, or with its officers, directors, or employees; (c) Prelude has not (i) granted or agreed to grant any options, warrants, or other rights for its stocks, bonds, or other corporate securities calling for the issuance thereof; (ii) borrowed or agreed to borrow any funds or incurred, or become subject to, any material obligation or liability (absolute or contingent) except liabilities incurred in the ordinary course of business consistent with past practice and there has not been: (i) any Material Adverse Change to the Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, business; (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of paid any material intellectual property obligation or liability (absolute or contingent) other than licenses, distribution agreements, advertising agreements, sponsorship agreements current liabilities reflected in or merchant program agreements entered into shown on the most recent Prelude balance sheet and current liabilities incurred since that date in the ordinary course of business; (iv) sold or transferred, or agreed to sell or transfer, any of its material assets, properties, or rights (except assets, properties, or rights not unused or un-useful in its business consistent with past practicewhich, in the aggregate have a value of less than $5,000 or canceled, or agreed to cancel, any debts or claims (except debts and claims which in the aggregate are of a value of less than $5,000; (v) made or permitted any material change by amendment or termination of any contract, agreement, or license to which it is a party if such amendment or termination is material, considering the Company in its accounting methods, principles business of Prelude; or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) issued, delivered, or agreed to issue or deliver any material revaluation by stock, bonds, or other corporate securities including debentures (whether authorized and un-issued or held as treasury stock); and (d) To the Company best knowledge of Prelude, it has not become subject to any of its law or regulation which materially and adversely affects, or in the future would be reasonably expected to adversely affect, the business, operations, properties, assets, including, without limitation, writing down the value or condition of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesPrelude.

Absence of Certain Changes or Events. Since December 31, 1997, except as set forth in the date SEC Reports (as defined in Section 3.06(a) hereof) or the Company Disclosure Statement, (a) neither the Company nor any Subsidiary has incurred any indebtedness for money borrowed except in the ordinary and usual conduct of the Company's business; (b) neither the Company nor any Subsidiary has assumed, guaranteed, endorsed or otherwise became responsible for the obligations of any other individual, firm or corporation, other than any obligation relating to existing co-insurance programs and the endorsement of checks for collection in the ordinary and usual course of business; (c) there has been no creation or assumption by the Company or any Subsidiary of any Lien on any asset; (d) there has been no loan, advance or capital contribution to or investment in any person by the Company or any Subsidiary except in the ordinary and usual conduct of the Company's business; (e) neither the Company nor any Subsidiary has entered into any contract, lease, commitment or transaction with any officer, director or any affiliate (as defined in Rule 405 of the SEC promulgated under the Securities Act) of the Company Balance Sheetor any Subsidiary (other than pursuant to consulting or employment agreements or other employee benefit arrangements); (f) there has been no transaction or commitment made, or any contract or agreement entered into, by the Company or any Subsidiary relating to its assets or business (including the acquisition or disposition of any assets) or any relinquishment by the Company or any Subsidiary of any contract or other right, which in either case is material to the Company and the Subsidiaries taken as a whole (other than transactions, commitments and relinquishments contemplated by this Agreement and other than sales of inventory in the ordinary and usual course of business and other than investments of a capital nature in the ordinary and usual course of business); (g) neither the Company nor any Subsidiary has conducted its business only purchased or leased any real property; (h) neither the Company nor any Subsidiary has leased any equipment or property other than in the ordinary and usual course of business; (i) there has been no change in any method of accounting or accounting practice by the Company or the Subsidiaries; (j) there has been no grant (whether or not in writing and whether formal or informal) of any severance or termination pay to any current or former officer or employee of the Company or any Subsidiary, any employment, bonus, profit sharing, pension, retirement, deferred compensation, fringe benefit, or other similar agreement with or plan or program for (or, except as required by law, any amendment, formal or informal, to any such existing agreement with or plan or program for) any current or former officer, director, employee or consultant of the Company or any Subsidiary, any increase in benefits payable under any existing severance or termination pay policies, employment agreements, or deferred compensation or fringe benefit plan or program or any increase in compensation, bonus or other benefits payable, or to become payable, to officers, directors, employees or consultants of the Company or any Subsidiary other than increases in benefits to non-officer employees of the Company in the ordinary course of business consistent in accordance with past practice and practices; (k) there has not been: been no repurchase, redemption or other acquisition by the Company or any Subsidiary of any outstanding shares of capital stock or other ownership interest of the Company or any Subsidiary; (il) any Material Adverse Change to the Company, (ii) any declaration, setting aside there has been no declaration or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect ofto, any capital stock of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of Subsidiary; and (m) neither the Company nor any of the Company’s capital stock or Subsidiary has entered into any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable transaction other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesbusiness.

Absence of Certain Changes or Events. Since the date Except as set forth in Section ------------------------------------ 3.6 of the Company Schedules, since the Balance SheetSheet Date and until the date hereof, the Company has conducted its business businesses only in the ordinary course of business consistent with past practice practice, and there has not been: been (ia) any Material Adverse Change Effect with respect to the Company, (iib) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with respect to any of the Units, (c) any split, combination, reclassification or repurchase of any of the Units or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for Units, (d) (i) any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition granting by the Company or to any of its Subsidiaries of any of the Company’s capital stock or any other securities officer of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stockincrease in compensation, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except in the ordinary course of business consistent with past practicepractice or as required under employment agreements in effect as of the date hereof, (vii) any material change granting by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) to any material revaluation by officer of the Company of any increase in severance or termination pay, except as was required under any employment, severance or termination agreement in effect as of its assetsthe date hereof, includingor (iii) any entry by the Company into (A) any currently effective employment, without limitationseverance, writing down the value of capitalized inventory termination or writing off notes indemnification agreement, or accounts receivable consulting agreement (other than in the ordinary course of business consistent with past practice), with any current or former officer, director, employee or consultant or (B) any agreement with any current or former officer, director, employee or consultant the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement, (viie) any communication from damage, destruction or loss, whether or not covered by insurance, that individually or in the Nasdaq Global Market with respect to aggregate would have a Material Adverse Effect on the delisting of the Common StockCompany, (viiif) any cancellation change in accounting methods, principles or practices by the Company, except insofar as may have been required by a change in GAAP (g) any tax election that individually or in the aggregate would have a Material Adverse Effect on the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ixh) any sale, transfer material liabilities or other disposition outside obligations of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by Company which are not required under GAAP to be recorded on the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesCompany's financial statements.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement or the date of Transactions, as permitted under Section 4.01 hereof or as set forth in the Company Balance SheetDisclosure Schedule, since December 31, 2001, the Company has conducted its business only in the ordinary course of business consistent with past practice course, and there has not been: been (i1) any Material Adverse Change to material adverse change in the Company, (ii2) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ 's capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii3) any split, combination or reclassification of any of the Company’s 's capital stock or any issuance or the authorization of its Subsidiaries’ any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, except for issuances of Company Common Stock under the Company Stock Option Plans, (iv4) entry (A) any granting by the Company to any director or executive officer of the Company of any of its Subsidiaries into any licensing increase in compensation, bonus or other agreement with regard to the disposition of any material intellectual property other than licensesbenefits, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except for normal increases in the ordinary course of business consistent or in connection with past practicethe hiring or promotion of any such executive officer or increases required under any employment agreements in effect as of the date of the most recent audited financial statements included in the Company SEC Documents filed and publicly available prior to the date of this Agreement (as amended to the date of this Agreement, the "Company Filed SEC Documents"), (vB) any material change granting by the Company to any such director or executive officer of any increase in its accounting methods, principles severance or practicestermination pay, except as required by concurrent changes in GAAP the ordinary course of business or by in connection with the Commissionhiring or promotion of any such executive officer, or (viC) any material revaluation entry by the Company of into, or any of its assetsamendment of, includingany employment, without limitationdeferred compensation, writing down the value of capitalized inventory consulting, severance, termination or writing off notes indemnification agreement with any such director or accounts receivable executive officer, other than in the ordinary course of business consistent or in connection with past practicethe hiring or promotion of any such executive officer, (vii5) any communication from change in accounting methods, principles or practices by the Nasdaq Global Market with respect to the delisting of the Common StockCompany materially affecting its assets, liabilities or business, (viii6) any cancellation by tax election that individually or in the aggregate would reasonably be expected to have a material adverse effect on the Company or any of its Subsidiaries tax attributes or any settlement or compromise of any debts or waiver of any claims or rights of material valueincome tax liability, (ix7) any saleincurrence of a material liability or obligation, transfer whether direct, indirect, or other disposition contingent, outside of the ordinary course of business of any properties or assets (real, personal as otherwise reflected in the most recent interim financial statements included in the Company Filed SEC Documents or mixed, tangible or intangible) the April 2002 interim financial statements delivered by the Company to Purchaser or (8) any agreement to do any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesforegoing.

Absence of Certain Changes or Events. Since Except as disclosed in the SEC Documents filed and publicly available prior to the date of this Agreement (the "Company Balance SheetFiled SEC Documents") or in Section 4.1(g) of the Disclosure Schedule, since December 31, 1998, the Company has conducted its business only in the ordinary course of business consistent with past practice practice, and there has not been: been (i) any event, occurrence or development of a state of circumstances which has had or could reasonably be expected to have a Material Adverse Change to the CompanyEffect, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s 's capital stock or any of its Subsidiaries’ capital stock, or any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries subsidiaries of any outstanding shares of the Company’s capital stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementssubsidiaries, (iii) any split, combination or reclassification of any of the Company’s its capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ capital stock, (iv) entry (A) any granting by the Company or any of its Subsidiaries into subsidiaries to any licensing current or other agreement with regard to former director, officer or employee of the disposition Company or any of its subsidiaries of any material intellectual property other than licensesincrease in compensation or benefits, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except in the ordinary course of business consistent with past practice, (vB) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation granting by the Company or any of its Subsidiaries subsidiaries to any such director, officer or employee of any debts increase in severance or waiver termination pay (including the acceleration in the exercisability of Company Options or in the vesting of Shares (or other property) or the provision of any claims tax gross-up), except as was required under employment, severance or rights termination agreements or plans in effect as of material valueDecember 31, 1998 which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect, or (ixC) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) entry by the Company or any of its Subsidiariessubsidiaries into any employment, deferred compensation, severance or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiaries.termination

Absence of Certain Changes or Events. Since Except as disclosed in the LIN SEC Document or the LIN Disclosure Letter, or as otherwise agreed to in writing after the date hereof by Chancellor, or as expressly permitted by this Agreement, since the date of the Company Balance Sheetmost recent audited financial statements of LIN Holdings contained in the LIN SEC Document, the Company has LIN and its subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice course, and there has not been: been (i) any change which could reasonably be expected to have a LIN Material Adverse Change to Effect (including as a result of the Companyconsummation of the transactions contemplated by this Agreement), (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ LIN's outstanding capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s its outstanding capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ outstanding capital stock, (iv) entry (x) any granting by the Company LIN or any of its Subsidiaries into subsidiaries to any licensing director, officer or other agreement with regard to the disposition employee or independent contractor of LIN or any of its subsidiaries of any material intellectual property other than licensesincrease in compensation or acceleration of benefits, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except in the ordinary course of business consistent with past practiceprior practice or as was required under employment agreements in effect as of the date of the most recent audited financial statements of LIN Holdings contained in the LIN SEC Document, (vy) any material change granting by the Company in its accounting methods, principles LIN or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assetssubsidiaries to any director, includingofficer or other employee or independent contractor of any increase in, without limitationor acceleration of benefits in respect of, writing down severance or termination pay, or pay in connection with any change of control of LIN, except in the value ordinary course of capitalized inventory business consistent with prior practice or writing off notes as was required under any employment, severance or accounts receivable termination agreements in effect as of the date of the most recent audited financial statements of LIN Holdings contained in the LIN SEC Document, or (z) any entry by LIN or any of its subsidiaries into any employment, severance, change of control, or termination or similar agreement with any director, executive officer or other employee or independent contractor other than in the ordinary course of business consistent with past practicepractices, or (viiv) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stockchange in accounting methods, (viii) any cancellation principles or practices by the Company LIN or any of its Subsidiaries of any debts subsidiaries materially affecting its assets, liability or waiver of any claims or rights of material valuebusiness, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) except insofar as may have been required by the Company or any of its Subsidiaries, or (x) any agreement, whether a change in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesgenerally accepted accounting principles.

Absence of Certain Changes or Events. Since Except as disclosed in ------------------------------------ the SEC Documents filed and publicly available prior to the date of this Agreement (the Company Balance Sheet"Filed SEC Documents"), the Company has conducted its business only in the ordinary course of business consistent with past practice and since December 31, 1998 there has ------------------- not been: been (i) any Material Adverse Change to material adverse change in the Companybusiness, financial condition or results of operations of Xxxxxxx and its Subsidiaries, taken as a whole, (ii) any destruction or loss of (whether or not covered by insurance) any property, asset or right that has had or is likely to have a Xxxxxxx Material Adverse Effect, (iii) any authorization or issuance by Xxxxxxx of any of its capital stock or the issuance of any debt security or other evidence of Indebtedness of Xxxxxxx or any of its Subsidiaries, (iv) any redemption or other acquisition by Xxxxxxx of any of its capital stock or by Xxxxxxx or any of its Subsidiaries of any of their debt securities or other evidences of Indebtedness, or any payment made with respect to any of the foregoing (other than any regular, periodic payment of interest made with respect to a debt security or other evidence of Indebtedness), (v) any declaration, setting aside or payment of any dividend on, or other distribution or payment (whether in cash, capital stock or propertyotherwise) in respect ofof any capital stock of Xxxxxxx, (vi) any disposal or lapse of the Company’s any Xxxxxxx Intellectual Property, (vii) any Lien (other than a Permitted Lien) incurred on any material property, assets or rights of Xxxxxxx or any of its Subsidiaries’ capital stock, or (viii) any purchase, redemption or other acquisition incurrence by the Company Xxxxxxx or any of its Subsidiaries of any liability which has had or is likely to have a Xxxxxxx Material Adverse Effect, (ix) any incurrence of the Company’s capital stock Indebtedness or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry guarantee by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company Xxxxxxx or any of its Subsidiaries of any debts or waiver liability of any claims other person or rights of material value, (ix) any sale, transfer or other disposition entity outside of the ordinary course of business business, (x) to the knowledge of Xxxxxxx, any development with respect to regulatory approval of any properties or assets (real, personal or mixed, tangible or intangible) by the Company products of Xxxxxxx or any of its SubsidiariesSubsidiaries which has had or is likely to have a Xxxxxxx Material Adverse Effect, (xi) to the knowledge of Xxxxxxx, any development with respect to relationships with any contract manufacturer or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company contract research organization with which Xxxxxxx or any of its SubsidiariesSubsidiaries has a business relationship which has had or is likely to have a Xxxxxxx Material Adverse Effect or (xii) any change in Xxxxxxx' Tax accounting methods, any new election made with respect to Taxes, any modification or revocation of any existing election made with respect to Taxes, or any settlement or other disposition of any Tax matter.

Absence of Certain Changes or Events. Since (a) Except as disclosed in the Current SEC Reports filed prior to the date of this Agreement or Section 3.6 of the Company Balance SheetDisclosure Schedule, or except as contemplated by this Agreement, since June 30, 2007, each of the Company and its Subsidiaries has conducted its business only in the ordinary course of business consistent with past practice practice, and there has not been: (i) any Material Adverse Change to the Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any Capital Stock of the Company’s ; (ii) any split, combination, reclassification or amendment of any term of any outstanding Capital Stock or other security of the Company or any of its Subsidiaries or (other than issuance of Common Stock upon the exercise of any Company Options) any issuance or the authorization of the issuance of any securities of the Company or any of its Subsidiaries’ capital stock, or other than in connection with the transactions contemplated hereby; (iii) any purchaserepurchase, redemption or other acquisition by the Company or any Subsidiary of its Subsidiaries the Company of any of the Company’s capital stock outstanding Capital Stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any Subsidiary of the Company’s or any of its Subsidiaries’ capital stock, except as contemplated by the Stock Plans; (iv) entry (A) any grant by the Company or any of its Subsidiaries into to any licensing officer of the Company or other agreement with regard to the disposition any of its Subsidiaries of any material intellectual property other than licensesincrease in compensation, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except for increases in the ordinary course of business consistent with past practicepractice or as required under employment or other agreements or benefit arrangements in effect as of June 30, 2007, or (vB) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation grant by the Company or any of its Subsidiaries to any such officer of any debts increase in severance or waiver of termination pay, except as was required or provided for under any claims or rights of material valueemployment, (ix) any saleseverance, transfer termination or other disposition outside agreements or benefit arrangements in effect as of the ordinary course of business of June 30, 2007; (v) except as required by a change in GAAP, any properties material change in accounting methods, principles or assets (real, personal or mixed, tangible or intangible) practices by the Company or any of its Subsidiaries; and (vi) any material casualties affecting the Company and its Subsidiaries, taken as a whole, or (x) any agreementmaterial loss, damage or destruction to any of their properties or assets, whether in writing covered by insurance or otherwise, to take any action described in this section by the Company or any of its Subsidiariesnot.

Absence of Certain Changes or Events. Since Except as disclosed in the SEC Documents filed prior to the date hereof (the "Filed SEC Documents") or in Section 2.6 of the Disclosure Schedule or as otherwise contemplated or permitted by this Agreement, since the date of the Company Balance Sheetmost recent audited financial statements included in the Filed SEC Documents, the Company has and its Subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice (which conduct has not had a Material Adverse Effect), and except as otherwise expressly permitted by this Agreement, there has not been: been (i) any event, effect or change which has had or which would reasonably be expected to have a Material Adverse Change to the CompanyEffect, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any 's outstanding capital stock (other than regular quarterly cash dividends of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of $.08 per Common Share in accordance with usual record and payment dates and in accordance with the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements's present dividend policy), (iii) any split, combination or reclassification of any of the Company’s its outstanding capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ outstanding capital stock, (iv) (a) any granting by the Company or any of its Subsidiaries to any director, officer or other employee of the Company or any of its Subsidiaries of any increase in compensation, except in the case of employees in the ordinary course of business consistent with prior practice, or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents, (b) any granting by the Company or any of its Subsidiaries to any such director, officer or other employee of any increase in severance or termination pay, except as was required under any employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents, (c) any entry by the Company or any of its Subsidiaries into any licensing employment, severance, change of control, termination or similar agreement with any officer, director or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practiceemployee, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course method of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company accounting or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) policy used by the Company or any of its Subsidiaries, except as disclosed in the financial statements included in the Filed SEC Documents, (vi) any loss or material interference with the Company's business or assets from fire, accident, flood or other casualty (whether or not covered by insurance) that has had or would reasonably be expected to have a Material Adverse Effect; or (xviii) any agreement, whether material increase in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesindebtedness.

Absence of Certain Changes or Events. Since Except as disclosed in the date SEC Documents filed or press releases of the Company Balance Sheet, (the "Company has conducted its business only in the ordinary course of business consistent with past practice and there has not been: (iReleases") any Material Adverse Change issued prior to the Company, (ii) any declaration, setting aside date hereof or payment of any dividend on, or other distribution (whether as set forth in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities Section 3.7 of the Company or its Subsidiaries or any optionsDisclosure Schedule, warrantssince July 31, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements2000, (iiia) any splitno events have occurred which would reasonably be expected to have, combination or reclassification of any of in the Company’s or any of its Subsidiaries’ capital stockaggregate, a Company Material Adverse Effect, (ivb) entry by the Company or any of and its Subsidiaries into any licensing or other agreement with regard to the disposition of any subsidiaries have carried on and operated their respective businesses in all material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into respects in the ordinary course of business consistent with past practice, except for such deviations of the Company's business from the ordinary course of business which would not reasonably be expected to have, in the aggregate, a Company Material Adverse Effect and (vc) there has been no (i) declaration, setting aside or payment of any material change by dividend, or other distribution in respect of the capital stock of the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP any redemption or by the Commission, (vi) any material revaluation other acquisition by the Company of any of its assetscapital stock; (ii) increase in the rate or terms of compensation payable or to become payable by the Company or any Significant Subsidiary to its directors, includingofficers or key employees of the Company or its Significant Subsidiaries, without limitation, writing down except for the value Change of capitalized inventory or writing off notes or accounts receivable other than Control Agreements and increases occurring in the ordinary course of business consistent in accordance with its customary past practicepractices; (iii) grant or increase in the rate or terms of any bonus, insurance, pension, severance or other employee benefit plan, payment or arrangement made to, for or with any directors, officers or key employees, except for the Change of Control Agreements and increases occurring in the ordinary course of business in accordance with its customary past practices; (viiiv) change by the Company in accounting methods, principles or practices except as required by generally accepted accounting principles; (v) entry into any communication from the Nasdaq Global Market with respect to the delisting of the Common Stockagreement, (viii) any cancellation commitment or transaction by the Company or any of subsidiary which is material to the Company and its Subsidiaries of any debts subsidiaries taken as a whole, except agreements, commitments or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of transactions in the ordinary course of business business; (vi) stock split, reverse stock split, combination or reclassification of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any Common Stock; (vii) change in the terms and conditions of its Subsidiaries, the Stock Plans except as contemplated hereby; or (xviii) any agreementagreement or commitment, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiaries(i) through (vii) above.

Absence of Certain Changes or Events. Since Except as disclosed in the Company SEC Documents or in Schedule 3.1(f) to the Company Disclosure Letter, since December 31, 2006 (the “Company Financial Statement Date”) and through the date of the Company Balance Sheetthis Agreement, the Company has and the Company Subsidiaries have conducted its business their respective businesses only in the ordinary course of business consistent with past practice and there has not been: been (ia) any change in the business, financial condition or results of operations of the Company and the Company Subsidiaries taken as a whole, that has resulted or would result, individually or in the aggregate, in a Company Material Adverse Change Effect, nor has there been any occurrence or circumstance that with the passage of time would reasonably be expected to result in a Company Material Adverse Effect, (b) except for regular distributions (in the case of the Company) not in excess of $0.0758333 per Share with customary record and payment dates, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of to any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsstock, (iiic) any split, combination or reclassification of any of the Company’s capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for, or giving the right to acquire by exchange or exercise, shares of its Subsidiaries’ capital stockbeneficial interest or any issuance of an ownership interest in, any Company Subsidiary except as contemplated by this Agreement, (ivd) entry any issuance of Company Options or restricted shares of the capital stock of the Company, (e) any damage, destruction or loss, whether or not covered by insurance, that has or would have a Company Material Adverse Effect, (f) any change in accounting methods, principles or practices by the Company or any of Company Subsidiary materially affecting its Subsidiaries into any licensing assets, liabilities or other agreement with regard to the disposition of any material intellectual property other than licensesbusiness, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except insofar as may have been disclosed in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles SEC Documents or practices, except as required by concurrent changes a change in GAAP or by the Commission, regulatory accounting principles or (vig) any material revaluation by amendment of any employment, consulting, severance, retention or any other agreement between the Company of and any of its assets, including, without limitation, writing down the value of capitalized inventory officer or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting director of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesCompany.

Absence of Certain Changes or Events. Since the date of September 30, 2002, (A) the Company Balance Sheetand its Subsidiaries have not incurred any material liability or obligation (indirect, the Company has conducted its business only direct or contingent), or entered into any material oral or written agreement or other transaction, that is not in the ordinary course of business consistent with past practice and there has not been: (i) any or that would result in a Material Adverse Change to Effect on the Company other than this Agreement and the transactions contemplated hereby, (B) the Company and its Subsidiaries have not sustained any loss or interference with their business or properties from fire, flood, windstorm, accident or other calamity (whether or not covered by insurance) that has had a Material Adverse Effect on the Company, (iiC) there has been no change in the rights, preferences and privileges of the capital stock of the Company and no dividend or distribution of any kind declared, paid or made by the Company on any class of its stock, (D) there has not been (v) any declarationadoption of a new Company Plan (as hereinafter defined), setting aside or payment of (w) any dividend onamendment to a Company Plan materially increasing benefits thereunder, (x) any granting by the Company to any executive officer or other distribution (whether in cash, stock or property) in respect of, any key employee of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any increase in compensation not approved in writing by Acquiror, except in the ordinary course of business consistent with prior practice or as was required under employment agreements in effect as of the Company’s capital stock or any other securities date of the most recent audited financial statements included in the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsSEC Documents, (iiiy) any split, combination or reclassification of any of granting by the Company’s Company or any of its Subsidiaries’ capital stock, Subsidiaries to any such executive officer or other key employee of any increase in severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Company SEC Documents or except as approved by Acquiror in writing or (ivz) any entry by the Company or any of its Subsidiaries into any licensing employment, severance or termination agreement with any such executive officer or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into key employee except as approved by Acquiror in the ordinary course of business consistent with past practicewriting, (vE) there has not been any material change by in the amount or terms of the indebtedness of the Company and its Subsidiaries from that described in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of Quarterly Report for the quarter ended September 30, 2002 and (F) there has been no event causing a Material Adverse Effect on the Company, nor any of its assetsdevelopment that would, including, without limitation, writing down the value of capitalized inventory individually or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practiceaggregate, (vii) any communication from result in a Material Adverse Effect on the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesCompany.

Absence of Certain Changes or Events. Since Except (i) as disclosed in the SEC Documents filed and publicly available not later than two days prior to the date hereof (the "Filed SEC Documents"), (ii) as set forth in Section 3.06 of the Company Disclosure Schedule, or (iii) for the Merger, since the Balance SheetSheet Date, the Company has conducted and its business only subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice practice, and there has not beenoccurred any: (ia) any event or change that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Change to the CompanyEffect, (iib) sale or other disposition of or pledge or other encumbrance upon a material amount of property or other assets or any Real Property Lease as defined in Section 3.13 herein of the Company or any of its subsidiaries, except sales of inventory in the ordinary course of business consistent with past practice, (c) declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any class of capital stock of the Company’s Company or any of its Subsidiaries’ capital stocksubsidiaries (other than dividends by a direct or indirect wholly owned subsidiary of the Company to its parent), or any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries subsidiaries of any capital stock of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iiid) any split, combination or reclassification of any capital stock of the Company’s , (e) change in financial or tax accounting methods, principles or practices by the Company or its subsidiaries, except insofar as may have been required by a change in GAAP or applicable Law, (f) material Tax election inconsistent with past practices or the settlement or compromise of any material Tax liability, (g) damage, destruction or loss of any material asset of the Company or any of its Subsidiaries’ capital stock, (iv) entry subsidiaries which materially affects the use or value thereof or a material part of any improvement Leased by the Company or any of its Subsidiaries into any licensing or other agreement with regard subsidiaries pursuant to the disposition Real Property Lease and which damage, destruction or loss is not covered by insurance, subject to reasonable deductible limits (it being agreed that the existence, level and coverage of insurance, if any, shall be taken into account but shall not be determinative for purposes of determining whether any damage, destruction or loss is material or would result in a Company Material Adverse Effect), (h) grant by the Company or any of its subsidiaries to any officer of any material intellectual property other than licensesincrease in compensation, distribution agreementsexcept as was required under any employment agreements set forth on Section 3.06(h) of the Company Disclosure Schedule, advertising agreementscopies of which have been made available to OJSAC and Amazing Savings, sponsorship agreements or merchant program agreements entered into any granting by the Company or any of its subsidiaries to any employee of any increase in compensation, except for normal increases in the ordinary course of business consistent with past practice, (vi) any material change grant by the Company or any of its subsidiaries to any officer of any increase in its accounting methods, principles (or practicesacceleration of vesting or payment of) severance or termination pay, except as was required by concurrent changes in GAAP under any employment, severance or by termination agreements set forth on Section 3.06(i) of the CommissionCompany Disclosure Schedule, (vi) copies of which have been made available to OJSAC and Amazing Savings, or any material revaluation grant by the Company of or any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable subsidiaries to any employee other than an officer of any increase in (or acceleration of vesting or payment of) severance or termination pay, except in the ordinary course of business consistent with past practice, (viij) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation entry by the Company or any of its Subsidiaries subsidiaries into any (or amendment of any debts existing) employment, severance or waiver termination agreement with any officer, (k) establishment, adoption, amendment or modification of, or increase of benefits under, any plan that would constitute a Company Plan (as hereinafter defined) or (l) acceleration of vesting of any claims or rights of material valueOption, (ix) any sale, transfer or other disposition outside of except acceleration previously provided for in the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesStock Plan.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement and except as disclosed in the Filed Company SEC Documents or as expressly permitted pursuant to Section 4.01(a)(i) through (xv), since the date of the most recent audited financial statements included in the Filed Company Balance SheetSEC Documents, the Company has and its Subsidiaries have conducted its business their respective businesses only in the ordinary course of business consistent with past practice practice, and there has not been: been any Company Material Adverse Change, and from such date until the date hereof there has not been (i) any Material Adverse Change to the Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any capital stock of the Company’s Company or any of its Subsidiaries’ capital stock, or (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any shares of the Company’s capital stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementssecurities, (iii) any split, combination or reclassification of any capital stock of the Company’s Company or any of its Subsidiaries’ Subsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of their respective capital stock, (iv) (A) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries of any increase in compensation, bonus or fringe or other benefits or any granting of any type of compensation or benefits to any current or former director, officer, employee or consultant not previously receiving or entitled to receive such type of compensation or benefit, except as was required under any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (B) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries of any right to receive any increase in change of control, severance or termination compensation or benefits, or (C) any entry by the Company or any of its Subsidiaries into or any licensing or other agreement with regard to the disposition amendments of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v1) any material employment, deferred compensation, consulting, severance, change by the Company in its accounting methodsof control, principles termination or practicesindemnification agreement or any other agreement, except as required by concurrent changes in GAAP plan or by the Commissionpolicy with or involving any current or former director, (vi) any material revaluation by the Company officer, employee or consultant of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix2) any saleagreement with any current or former director, transfer officer, employee or other disposition outside consultant of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of a nature contemplated by this Agreement (all such agreements under this clause (C), collectively, “Company Benefit Agreements”), (D) any adoption of, any amendment to or any termination of any collective bargaining agreement or any Company Benefit Plan, (E) any payment of any benefit or grant of any award under Company Benefit Agreement or Company Benefit Plan (including in respect of stock options, “phantom” stock, stock appreciation rights, restricted stock, “phantom” stock rights, restricted stock units, deferred stock units, performance stock units or other stock-based or stock-related awards or the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder) except as required to comply with applicable Legal Provisions or any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (F) any action to accelerate the vesting or time of payment of any compensation or benefit under any Company Benefit Plan or Company Benefit Agreement or (xG) any agreementaction to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan or Company Benefit Agreement, whether in writing (v) any damage, destruction or otherwise, loss to take any action described in this section by asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that individually or in the aggregate has had or could reasonably be expected to have a Company Material Adverse Effect, (vi) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vii) any material tax election or any settlement or compromise of any material income tax liability.

Absence of Certain Changes or Events. Since the date of the Company Balance SheetDecember 31, 2001, the Company Valves Business has been conducted its business only in the ordinary course of business consistent with past practice and, except as is not reasonably expected to have and will not have, individually or in the aggregate, a Material Adverse Effect, there has not been: (i) any Material Adverse Change to change in the Companycondition and repair of the assets of the Valves Business such that such condition and repair are inconsistent with the uses in which such assets are presently employed, ordinary wear and tear excepted; (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any a failure to replenish inventories and supplies of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into Valves Business in the ordinary course of business consistent with past practice; (iii) a purchase commitment by any Target Company inconsistent with past practice or in excess of the normal, ordinary and usual requirements; (iv) any acquisition (by merger, consolidation or acquisition of stock or assets) by any Target Company of any Person or other business organization or division thereof for consideration in excess of $500,000 individually or $1,000,000 in the aggregate; (v) any material change by the Company in its accounting methodssale, principles transfer, lease, or practices, except as required by concurrent changes in GAAP or by the Commission, other disposition of (viincluding through any licensing) any material revaluation by the Company of any of its (A) current assets, includingreal, without limitationpersonal or mixed of the Valves Business, writing down the value of capitalized inventory or writing off notes or accounts receivable other than the sale of inventories in the ordinary course of business consistent with past practicepractice or (B) non-current assets, real, personal or mixed of the Valves Business except to the extent same has been replaced with a comparable asset of reasonably similar value; (vi) any change in any material accounting principle or accounting practice used by any Target Company or any Selling Entity relating to the Valves Business, other than such changes disclosed in Section 3.09 of the Disclosure Schedule; (vii) any communication from the Nasdaq Global Market with respect to the delisting amendment or restatement of the Common Stock, Charter or the By-Laws of any Target Company; (viii) any cancellation incurrence of non-current liabilities by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, Target Company; (ix) other than increases reasonably consistent with past practice, any sale, transfer material increase taken as a whole in the compensation paid or other disposition outside benefits provided to the employees of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or Target Companies; and (x) any agreement, whether in writing or otherwise, to take any action described of the actions specified in this section Section 3.09, except as expressly required by this Agreement. Further, since December 31, 2001, there have been no events or occurrences, individually or in the Company aggregate, which is reasonably expected to have a Material Adverse Effect. For purposes of Article IX only, the immediately preceding sentence shall be disregarded, and in its place and stead the following shall be inserted: "There has not occurred, individually or in the aggregate, since December 31, 2001, any of its SubsidiariesMaterial Adverse Effect."

Absence of Certain Changes or Events. Since Except as otherwise contemplated hereby, from the date of the Filed Audited Financials to the date hereof: (i) the Company Balance Sheet, and its Subsidiaries have conducted their business in all material respects in the ordinary course in substantially the same manner as heretofore conducted; (ii) there has not been any Material Adverse Effect on the Company; (iii) the Company has conducted not declared any dividends on or made any other distributions in respect of any of its business only capital stock, except regular quarterly dividends by the Company in an amount not in excess of $0.56 per share for each dividend; (iv) the Company has not changed its methods of accounting for financial accounting or tax purposes in any manner that would be reasonably expected to have a significant adverse effect on its financial statements; (v) the Company has not made or revoked any material express or deemed election relating to Taxes; and (vi) neither the Company nor any of its Subsidiaries has (A) waived in writing any rights which waiver would reasonably be expected to have a Material Adverse Effect on the Company, (B) suffered any extraordinary loss or extraordinary losses (as defined in Opinion No. 30 of the Accounting Principles Board of the American Institute of Certified Public Accountants and any amendments or interpretations thereof) which would reasonably be expected to have a Material Adverse Effect on the Company, (C) made or agreed to make any material increase in the compensation payable or to become payable to any Company Employee, except for regularly scheduled increases in compensation payable or increases otherwise occurring in the ordinary and usual course of business consistent with past practice and there has not been: practices, (iD) made or agreed to make any Material Adverse Change increase in any Company Plan or adopt a new employee benefit plan, which in either case would result in a material increase in liability to the Company, or (iiE) made any declaration, setting aside capital expenditures in respect of its business or payment operations (excluding capital expenditures made in respect of any dividend on, portfolio or other distribution (whether properties held or controlled in cash, stock or propertythe course of its business) in respect of, any excess of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into $2,500,000 in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesaggregate.

Absence of Certain Changes or Events. Since the date of the Company Balance SheetCutoff Date, the Company has conducted its used commercially reasonable efforts to preserve the business only organization of the Company intact, to keep available to the Company the services of all current officers and employees of the Company and to preserve the goodwill of the suppliers, customers, employees and others having business relations with the Company as of such date and has operated the business substantially in the ordinary course of business course. In particular, except for such dividends and other distributions since the Cutoff Date as have been disclosed to the Buyer, the Company has managed its cash, ordered supplies and materials, collected its receivables and paid its payables on a basis consistent with past practice and there its historical practices. Except as set forth on Schedule 3.11, since the Cutoff Date, the Company has not been: (i) suffered any Material Adverse Change in its assets, business, financial condition or results of operation, nor, to the Company’s Knowledge, have any events occurred that have had, or might reasonably be expected to have, a Material Adverse Change on the financial condition or results of operations of the Company, taken as a whole. Except as set forth on Schedule 3.11, since the Cutoff Date, the Company has not (iia) any declaration, setting aside incurred damage to or payment destruction of any dividend onAsset or Assets in the aggregate having a replacement cost in excess of $30,000, whether or other distribution not covered by insurance; (whether b) incurred any obligation or liability (fixed or contingent) not in cash, stock the Ordinary Course of Business in excess of $30,000; (c) made or propertyentered into Contracts or commitments to make any capital expenditures in excess of $30,000; (d) in respect of, encumbered any of the Company’s Assets with any Security Interest, other than Security Interests imposed by operation of law; (e) sold, transferred or leased any Asset or Assets outside of the Ordinary Course of Business individually or in the aggregate having a replacement cost in excess of $30,000, or canceled or compromised any receivable or material claims, except in each case, for the sale of inventory in the Ordinary Course of Business; (f) sold, assigned, transferred or granted any rights under or with respect to any licenses, agreements, patents, inventions, trademarks, trade names, copyrights or formulae or with respect to know-how or any other intangible asset owned by the Company; (g) amended or terminated any material Contracts; (h) waived or released any other rights of material value to the Company; (i) declared or paid any dividend on its Subsidiaries’ capital stock, or set apart any purchasemoney for distribution to or for its Shareholders, redemption other than salary and reimbursement of expenses consistent with past practices and amounts disclosed to Buyer; (j) entered into, or other acquisition amended the terms of, any employment or consulting agreement so as to cause such agreement to not be terminable by the Company or any of its Subsidiaries of any of on less than 30-days notice without material liability to the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, ; or (xk) incurred any agreement, whether in writing indebtedness for borrowed money or otherwise, to take guaranteed any action described in this section by the Company or any indebtedness of its Subsidiariesanother Person.

Absence of Certain Changes or Events. Since Except as set forth on Schedule 2.1(f) of the REIT Disclosure Schedule or as disclosed in or reflected in the REIT SEC Documents, and except as contemplated by this Agreement, since the date of the Company Balance Sheet, the Company has conducted its business only most recent audited financial statements included in the ordinary course REIT SEC Documents, (i) nothing has occurred that would have been prohibited by Section 3.1 if the terms of business consistent with past practice such subsections had been in effect as of and after such date of such financial statements; and (ii) there has not been: (iA) any Material Adverse Change to the Companyexcept for regularly scheduled monthly and quarterly dividend and distribution payments in amounts consistent with past practices, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s REIT's stock or the OP Units; (B) any amendment of any term of any outstanding equity security of the REIT or any Subsidiary of its Subsidiaries’ capital stock, or the REIT; (C) any purchaserepurchase, redemption or other acquisition by the Company REIT or any Subsidiary of the REIT of any outstanding shares of capital stock or other equity securities of, or other ownership interests in, the REIT or any Subsidiary of the REIT; (D) any material change in any method of accounting or accounting practice or any tax method, practice or election by the REIT or any Subsidiary of the REIT; (E) any amendment of any employment, consulting, severance, retention or any other agreement between the REIT or any of its Subsidiaries of and any officer or director of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s REIT or any of its Subsidiaries’ capital stock, ; or (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (vF) any material change by the Company in its accounting methodschange, principles event or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiarieseffect that has had, or (x) any agreementcould reasonably be expected to have, whether in writing or otherwise, to take any action described in this section by a Material Adverse Effect on the Company or any of its SubsidiariesREIT.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement or the transactions contemplated hereby and except as disclosed in the i-Cube SEC Documents filed and publicly available prior to the date of this Agreement (as amended to the Company Balance Sheetdate of this Agreement, the Company has "i-Cube Filed SEC Documents"), since December 31, 1998 i-Cube and its subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice course, and there has not been: been (i1) any Material Adverse Change to the Companymaterial adverse change (as defined in Section 8.03) in i-Cube, (ii2) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ i-Cube's capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii3) any split, combination or reclassification of any of i-Cube's capital stock or any issuance or the Company’s authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of i-Cube's capital stock, except for issuances of i-Cube Common Stock upon the exercise of i-Cube Stock Options under the i-Cube Stock Plans, in each case awarded prior to the date hereof in accordance with their present terms, (4) (A) any granting by i-Cube or any of its Subsidiaries’ capital stocksubsidiaries to any current or former director or executive officer of i-Cube or its subsidiaries of any increase in compensation, bonus or other benefits, except for stock option grants listed on Schedule 3.01(g) and normal increases in cash compensation in the ordinary course of business consistent with past practice or as was required under any employment agreements in effect as of the date of the most recent audited financial statements included in the i-Cube Filed SEC Documents, (ivB) entry any granting by the Company i-Cube or any of its Subsidiaries into subsidiaries to any licensing such current or other agreement with regard to the disposition former director, executive officer or key employee of any material intellectual property other than licensesincrease in severance or termination pay, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except in the ordinary course of business consistent with past practice, (vC) any material entry by i-Cube or any of its subsidiaries into, or any amendments of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or key employee, or (D) any amendment to, or modification of, any i-Cube Stock Option, (5) except insofar as may have been required by a change by the Company in its generally accepted accounting principles, any change in accounting methods, principles or practices, except as required practices by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of i-Cube materially affecting its assets, includingliabilities or business, without limitation, writing down the value of capitalized inventory (6) any tax election that individually or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect aggregate is reasonably likely to the delisting of the Common Stock, (viii) any cancellation by the Company have a material adverse effect on i-Cube or any of its Subsidiaries tax attributes or any settlement or compromise of any debts material income tax liability, or waiver of any claims or rights of material value, (ix7) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) action taken by the Company i-Cube or any of its Subsidiariessubsidiaries during the period from December 31, or (x) any agreement, whether in writing or otherwise, 1998 to take any action described in this section by the Company or any of its Subsidiaries.date

Absence of Certain Changes or Events. Since Except as disclosed in the Company SEC Documents or Schedule 2.9, since the date of the Company Balance Sheet, most recent audited financial statements included in the Company has SEC Documents (the "Company Financial Statement Date") the Company and the Company Subsidiaries have conducted its their business only in the ordinary course (taking into account prior practices, including the acquisition of business consistent with past practice properties and issuance of securities) and there has not been: been (ia) any material adverse change in the business, financial condition or results of operations of the Company and the Company Subsidiaries taken as a whole, except for general economic changes, changes in the United States financial markets generally, changes that affect REITs generally and changes that affect self-storage real estate generally (a "Company Material Adverse Change Change"), nor has there been any occurrence or circumstance that with the passage of time would reasonably be expected to the Companyresult in a Company Material Adverse Change, (iib) subject to Section 5.11, any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with respect to any Company Common Shares, except for regular quarterly distributions (in respect of, any the case of the Company’s or any ) not in excess of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the $0.46 per Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsCommon Share and per Unit with customary record and payment dates, (iiic) any split, combination or reclassification of any of the Company’s Company Common Shares or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for, or giving the right to acquire by exchange or exercise, shares of its Subsidiaries’ capital stockbeneficial interest or any issuance of an ownership interest in, any Company Subsidiary except as contemplated by this Agreement, (ivd) entry any damage, destruction or loss, whether or not covered by insurance, that has or would have a Company Material Adverse Effect, or (e) any change made prior to the date of this Agreement in accounting methods, principles or practices by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of Subsidiary materially affecting its assets, includingliabilities or business, without limitation, writing down the value of capitalized inventory except insofar as may have been disclosed in Company SEC Documents or writing off notes or accounts receivable other than required by a change in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its SubsidiariesGAAP, or (xf) any agreementamendment of any employment, whether in writing consulting, severance, retention or otherwise, to take any action described in this section by other agreement between the Company and any officer or any trustee of its Subsidiariesthe Company.

Absence of Certain Changes or Events. Since the date of the Company Balance SheetOctober 1, 1995, the Company has conducted its business only not (i) incurred any debt, indebtedness or, to the best knowledge of the Company and the Shareholders, other Liability, except current Liabilities incurred in the ordinary course of business consistent with past practice and there has not been: those Environmental Liabilities identified on Exhibit 3.1(g) (i) any Material Adverse Change to which Environmental Liabilities shall, after the Closing Date, be the obligation and responsibility of the Shareholders rather than the Company, ); (ii) any declaration, setting aside delayed or postponed the payment of any dividend on(A) accounts payable or (B), or other distribution (whether in cash, stock or property) in respect ofto the best knowledge of the Company and the Shareholders, any other Liability; (iii) accelerated the collection of the Company’s or any receivable (except as set forth on Exhibit 3.1(h)); (iv) subjected any of its Subsidiaries’ capital stockassets or properties to any Encumbrance; (v) settled, compromised or written off any purchasereceivable (except as set forth on Exhibit 3.1(h)); (vi) leased, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent business, or sold or otherwise transferred (except as otherwise expressly permitted by this Section 3.1(h) or as set forth on Exhibit 3.1(h) with past practicerespect to distributions of certain securities, (vreal estate and cash of the Company to its shareholders) any material change by the Company in of its accounting methodsassets or properties; (vii) canceled, principles compromised, settled, released or practiceswaived any right, debt or claim (except as required by concurrent changes set forth on Exhibit 3.1(h)); (viii) changed in GAAP any manner the way in which it conducts business (except as set forth on Exhibit 3.1(h)); (ix) transferred or by granted any rights under any leases (except to customers in the Commissionordinary course of business), licenses or agreements or with respect to any Intellectual Property; (vix) made or granted any material revaluation by individual wage or salary increase in excess of 10% or any general wage or salary increase (except as set forth on Exhibit 3.1(h) with respect to certain officers of the Company Company), entered into any employment, consulting or agency contract with any shareholder, officer, director, employee or consultant or any relative or Affiliate thereof, changed or increased the rates of compensation payable through bonus, pension, contract or other commitment to any shareholder, officer, director, employee or consultant or any relative or Affiliate thereof for any period before or after the date set forth above (except as set forth on Exhibit 3.1(h) with respect to certain officers of the Company) or made any other change in employment terms for any shareholder, officer, director, employee or consultant or any Affiliate thereof; (xi) adopted, amended, modified or terminated any bonus, profit-sharing, incentive, severance or other plan, contract or commitment for the benefit of any of its assetsshareholders, officers, directors, employees or any relative or Affiliate thereof (or taken any such action with respect to any other Employee Benefit Plan or Benefit Arrangement); (xii) except as otherwise expressly permitted by this Section 3.1(h), entered into, or agreed to enter into, any contracts or agreements, or made any commitments, involving more than $15,000 in the aggregate; (xiii) suffered any material adverse fact or change, including, without limitation, writing down the value of capitalized inventory to or writing off notes in its business, financial condition, prospects, customer relationships or accounts receivable other than in the ordinary course of business consistent with past practice, properties (viiexcept as set forth on Exhibit 3.1(h) any communication from the Nasdaq Global Market with respect to the delisting distributions of certain securities, real estate and cash of the Common StockCompany to its shareholders); (xiv) entered into any contract or commitment to make capital expenditures in excess of $15,000 in the aggregate; (xv) declared, set aside or paid any dividend or made any distribution to its shareholders (viiiwhether in cash or in kind) any cancellation by (except as set forth on Exhibit 3.1(h) with respect to distributions of certain securities, real estate and cash of the Company to its shareholders) or purchased, redeemed or otherwise acquired any shares of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiaries.capital stock

Absence of Certain Changes or Events. Since Except as set forth in Section 3.1(f) of the NEON Disclosure Schedule, and except for actions that would be permitted pursuant to Section 4.1, and except as otherwise contemplated hereby, from the date of the Company Audited Balance Sheet, Sheet to the Company has date hereof: (i) NEON and its Subsidiaries have conducted its their business only in all material respects in the ordinary course of business consistent with past practice and in the same manner as heretofore conducted; (ii) there has not been: (i) been any NEON Material Adverse Change to the CompanyEffect; (iii) NEON has not (A) declared, (ii) any declaration, setting set aside or payment of paid any dividend on, dividends or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock; (B) split, combined or any purchase, redemption or other acquisition by the Company or reclassified any of its Subsidiaries of any of the Company’s capital stock or issued or authorized any issuance of any other securities in respect of, in lieu of the Company or in substitution for shares of, its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by NEON has not changed its methods of accounting for financial accounting or tax purposes in any manner that could be reasonably expected to have a significant adverse effect on its financial statements; (v) NEON has not made or revoked any material express or deemed election relating to Taxes; and (vi) neither NEON nor any of its Subsidiaries has (A) waived in writing any material rights, (B) suffered any extraordinary loss or extraordinary losses (as defined in Opinion No. 30 of the Company Accounting Principles Board of the American Institute of Certified Public Accountants and any amendments or interpretations thereof) which could reasonably be expected to have a NEON Material Adverse Effect, (C)(1) granted any severance or termination payment, (2) entered into any employment, deferred compensation, consulting, severance, indemnification, change in control, retention or other similar agreement or arrangement, (3) increased any compensation or benefits payable or to become payable under any existing severance or termination pay policy or employment, deferred compensation, stock loan, consulting, severance, change in control, retention or other similar agreement or arrangement, or (4) increased the compensation, bonus, incentive or other benefits payable to (or to become payable to) former or current directors, officers, employees or consultants of NEON or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property Subsidiaries, other than licenses, distribution agreements, advertising agreements, sponsorship agreements an increase in annual salary or merchant program agreements entered into hourly wage rates granted to current employees (other than officers) in the ordinary course of business business, consistent with past practicepractice or otherwise not material, (vD) made or agreed to make any increase in any NEON Plan or adopt a new employee benefit plan, which in either case could result in a material change by the Company increase in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commissionliability to NEON, (viE) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practiceor as otherwise not material, (vii) sold or transferred any communication from the Nasdaq Global Market with respect to the delisting of the Common Stockassets of NEON or its Subsidiaries, or (viiiF) made any cancellation by the Company or any capital expenditures in respect of its Subsidiaries of any debts business or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of operations not in the ordinary course of business of any properties or assets otherwise material. NEON and its Subsidiaries have not agreed or committed (real, personal directly or mixed, tangible or intangibleindirectly) by the Company or to do any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesforegoing.

Absence of Certain Changes or Events. Since (a) Except for incurring the expenses, making the payments, or the other transactions contemplated in or by this Agreement, since the date of the Company Reference Balance Sheet, (i) each of the Company and its Subsidiaries has conducted its business only businesses in the ordinary course consistent with past practice and has not incurred any material liability, except in the ordinary course of its business consistent with past practice and practice; (ii) there has not been: (i) been any change in the business, financial condition, Liabilities, assets, technology, Intellectual Property, employee relations, customer relations, supplier relations, manufacturer relations or distributor relations, or results of operations of the Company or its Subsidiaries that has had, or would reasonably be expected to have, a Material Adverse Change to Effect on the Company, (iiiii) there has not been any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) with respect to any shares of Company Common Stock; (iv) there has not been any split, combination or reclassification of any Company Common Stock or any issuance or commitment to issue or the authorization of any issuance of any Company Common Stock or other securities convertible into, in respect of, exchange or in substitution for any shares of Company Common Stock; (v) there has not been (A) any granting by the Company’s Company or any of its Subsidiaries’ capital stock, or Subsidiaries to any purchase, redemption or other acquisition by employee of the Company or any of its Subsidiaries of any increase in compensation, other than in the ordinary course of the Company’s capital stock or business, (B) any other securities of granting by the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stockSubsidiaries to any such employee of any increase in severance or termination pay, (ivC) any entry by the Company or any of its Subsidiaries into any licensing employment, severance or other agreement termination agreement, policy or arrangement with regard to the disposition of any employee; or (D) any transaction with a Company Stockholder, director or employee; (vi) there has not been any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into adverse change in the ordinary course Company’s business relationships with any clients or marina owners (“Customers”), and no event of business consistent default (with past practiceor without notice or lapse of time, (vor both) has occurred under any material change by agreement between the Company and its Customers; and (vii) there has not been any change in its accounting methods, principles or practices, except as required practices by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by either the Company or any of its Subsidiaries of any debts affecting their assets, Liabilities or waiver of any claims or rights of material valuebusiness, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) except insofar as may have been required by the Company or any of its Subsidiaries, or (x) any agreement, whether a change in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesGAAP.

Absence of Certain Changes or Events. Since the date Except as disclosed in Section 3.1(h) of the Company Balance SheetDisclosure Schedule or the Company SEC Documents, since December 31, 1999 the Company has conducted its business only in the ordinary course of business consistent with past practice practice, and there has not been: been (i) as of the date hereof, any change, event or condition with respect to the Company that has had a Material Adverse Change to Effect on the Company, Company and its Subsidiaries taken as a whole; (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s 's capital stock; (iii) (A) any granting by the Company or any of its Subsidiaries’ capital stock, or Subsidiaries to any purchase, redemption or other acquisition by executive officer of the Company or any of its Subsidiaries of any increase in compensation, except in the ordinary course of the Company’s capital stock business consistent with prior practice or any other securities of as was required under employment agreements described in Section 3.1(h) to the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsDisclosure Schedule, (iiiB) any split, combination or reclassification of any of granting by the Company’s Company or any of its Subsidiaries’ capital stockSubsidiaries to any such executive officer of any increase in severance or termination pay, except as was required under employment, severance or termination agreements listed in Section 3.1(h) to the Company Disclosure Schedule, true copies of which have been provided to EarthLink, or (ivC) any entry by the Company or any of its Subsidiaries into any licensing employment, severance or other termination agreement with regard to the disposition any such executive officer, except in each case in this paragraph (iii), for immaterial breaches hereof; (iv) any amendment of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements term of any outstanding equity security of the Company or merchant program agreements entered into in the ordinary course of business consistent with past practice, any Subsidiary; (v) any material change repurchase, redemption or other acquisition by the Company or any Subsidiary of any outstanding shares of capital stock or other equity securities of, or other ownership interests in, the Company or any Subsidiary, except as contemplated by any employee benefit plans of the Company; (vi) any material damage, destruction or other property loss, whether or not covered by insurance; or (vii) any change in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation practices by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by that has had a Material Adverse Effect on the Company or any of and its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) taken as a whole except insofar as may have been required by the Company or any of its Subsidiaries, or (x) any agreement, whether a change in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesgenerally accepted accounting principles.

Absence of Certain Changes or Events. Since Except as described in ------------------------------------------------- the Financial Statements (or in the notes thereto), or as otherwise agreed to in this Agreement or in writing by Buyer, since the date of the Company Balance Sheet, 1995 Financials: (a) the Company has conducted its business only in ordinary and usual course; (b) there has not been any material adverse change in the condition (financial or otherwise), results of operations, businesses, properties, assets, liabilities or earnings of the Company taken as a whole and the Company is not aware of any information (excluding public information regarding economic conditions and similar matters of general application) which reasonably could be expected to result therein; (c) neither the Seller nor the Company has entered into any employment or severance agreements, or granted any increase in compensation, bonuses, severance pay, or other employee benefits, payable to or with respect to any Company Employee (as defined in Section 5.8 of this Agreement), except for any increase in compensation granted in the ordinary course of business consistent with past practice and there practices for the Company Employees or as required under Sections 5.8 or 5.9 of this Agreement. (d) the Company has not been: made any loans or advances to any officer, director, shareholder or Affiliate of the Company (iexcept for ordinary travel and business expense payments); (e) any Material Adverse Change to the Company, (ii) any declaration, setting aside Company has not declared or payment of any dividend onpaid, or other distribution (whether in cash, stock or property) in respect accrued any liability for the payment of, any dividends or made any other distributions to its shareholders with respect to shares of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by Common Stock; (f) the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries has not entered into any licensing material commitment or other agreement with regard to the disposition of transaction (including without limitation any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements borrowing or merchant program agreements entered into in the ordinary course of business consistent with past practice, (vcapital expenditure) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, business; (viig) there has not been any communication from material change in the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation accounting methods or practices followed by the Company except as required by GAAP and disclosed to Buyer; (h) the Company has not incurred any debt, liability or any obligation, whether accrued, absolute, contingent or otherwise, which is material to the business or financial condition of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or the Company other disposition outside of than in the ordinary course of business of any properties or assets business; (real, personal or mixed, tangible or intangiblei) by the Company has not sold, assigned, transferred or granted any exclusive license with respect to any trademark, trade name, service xxxx, copyright, trade secret or other intangible asset; (j) the Company has not issued, redeemed or repurchased any stock, bond or other corporate security; (k) the Company has not experienced any material damage, theft or loss; (l) the Company has not relinquished any material contract or contract right; (m) the Company has not entered into any commitment (contingent or otherwise) to do any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiaries.foregoing. 8

Absence of Certain Changes or Events. Since Except (1) as disclosed in the CT SEC Documents filed and publicly available prior to the date of this Agreement (as amended to the Company Balance Sheetdate of this Agreement, the Company has "CT Filed SEC Documents") or (2) for liabilities incurred in connection with this Agreement or the transactions contemplated hereby, since December 31, 1996, CT and its subsidiaries have conducted its business their businesses only in the ordinary course of business consistent with past practice course, and there has not been: been (i) any Material Adverse Change to the Companymaterial adverse change in CT, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ CT's capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s CT's capital stock or any issuance or the authorization of its Subsidiaries’ any issuance of any other securities in respect of, in lieu of or in substitution for shares of CT's capital stock, (iv) entry (A) any granting by the Company CT or any of its Subsidiaries into subsidiaries to any licensing current or former director, executive officer or other agreement with regard to the disposition key employee of CT or its subsidiaries of any material intellectual property increase in compensation, bonus or other than licensesbenefits, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except for normal increases in the ordinary course of business consistent with past practicepractice or as was required under any employment agreements in effect as of the date of the most recent audited financial statements included in the CT Filed SEC Documents, (B) any granting by CT or any of its subsidiaries to any such current or former director, executive officer or other key employee of any increase in severance or termination pay, except as was required under any employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the CT Filed SEC Documents, or (C) any entry by CT or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or other key employee, (v) except insofar as may have been required by a change in United States generally accepted accounting principles, any material change by the Company in its accounting methods, principles or practicespractices by CT materially affecting its assets, except as required by concurrent changes in GAAP liabilities or by the Commissionbusinesses, (vi) any tax election that individually or in the aggregate would have a material adverse effect on CT or any of its tax attributes or any settlement or compromise of any material income tax liability, (vii) any waiver, settlement, assignment, release or compromise of any material claims or litigation or (viii) any revaluation by the Company in any material respect of any of CT's or its subsidiaries' assets, including, without limitation, including writing down the value of capitalized inventory or writing writing-off of notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesbusiness.

Absence of Certain Changes or Events. Since Except as disclosed in the SEC Documents filed and publicly available prior to the date of this Agreement (the "Filed SEC Documents") or in Section 2.5 of the Disclosure Schedule, since the date of the Company Balance Sheetmost recent audited financial statements included in the Filed SEC Documents, the Company has and its subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice course, and there has not been: been (i) any Material Adverse Change to change which would have a material adverse effect on the Companybusiness, financial condition or results of operations of the Company and its subsidiaries taken as a whole, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ 's outstanding capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s its outstanding capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ outstanding capital stock, (iv) (x) any granting by the Company or any of its subsidiaries to any executive officer or other employee of the Company or any of its subsidiaries of any increase in compensation, except in the ordinary course of business consistent with prior practice or as was required under employment agreements in effect as of the date of the most recent G:\LEGAL\AGREEMNT\MERGER\THI.3RD 9 audited financial statements included in the Filed SEC Documents, (y) any granting by the Company or any of its subsidiaries to any such executive officer or other employee of any increase in severance or termination pay, except in the ordinary course of business consistent with prior practice or as was required under any employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents or (z) any entry by the Company or any of its Subsidiaries subsidiaries into any licensing employment, severance or termination agreement with any such executive officer or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements employee or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation practices by the Company or any of its Subsidiaries of any debts subsidiaries materially affecting its assets, liability or waiver of any claims or rights of material valuebusiness, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) except insofar as may have been required by the Company or any of its Subsidiaries, or (x) any agreement, whether a change in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesgenerally accepted accounting principles.

Absence of Certain Changes or Events. Since the date Balance Sheet Date, (a) there has not been any material adverse change in the condition (financial or otherwise), operations, prospects or results of operations of the Company Balance SheetBusiness or Seller; (b) Seller has not (i) increased or modified the compensation or benefits payable or to become payable by Seller to any current or former directors, employees, consultants or contractors, (ii) increased or modified any employee benefit plan made to, for or with any current or former directors, employees, consultants or contractors, or (iii) entered into any employment, severance or termination agreement; (c) Seller has not mortgaged, pledged or subjected to Liens any assets, properties or rights; (d) Seller has not taken any action outside the Company ordinary course of the Business; (e) Seller has conducted its business only not sold, assigned or transferred any of the Purchased Assets, other than those made in the ordinary course of business consistent with past practice and there practices; (f) Seller has not been: suffered any damage, destruction or loss, whether or not covered by insurance, materially adversely affecting its properties, assets and rights or the Business; (ig) any Material Adverse Change to the CompanySeller has not materially changed its cash management practices and policies, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market practices and procedures with respect to the delisting collection of the Common Stockaccounts receivable, establishment of reserves for uncollectible accounts receivable, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits; and (viiih) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreementSeller has not agreed, whether in writing or otherwise, to take any action described in this section by the Company or do any of its Subsidiariesthe foregoing.

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement, between December 31, 2005 and the date of this Agreement, (a) the Company Balance Sheet, the Company has and its Subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice and practice; (b) there has not been: (i) been any Material Adverse Change to Effect on the Company, ; (iic) there has not been any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, GAAP; (vid) there has not been any material revaluation by the Company of any of its assets, including, without limitation, including a material writing down of the value of capitalized inventory or a material writing off of notes or accounts receivable receivable; (e) to the Knowledge of the Company, no customer which represented five percent or more of the Company’s consolidated product revenue for the year ended December 31, 2005 or the quarter ended March 31, 2006 has materially reduced or communicated to the Company or any of its Subsidiaries (orally, in writing or otherwise) an intent to materially reduce the quantity of its purchases from or materially reduce price or materially change other than quantitative or qualitative terms of its business relationship with the Company or its Subsidiaries; (f) to the Knowledge of the Company, no supplier which provides goods or services to the Company or a Subsidiary of the Company (which cannot be replaced within thirty days without significant incremental cost) has materially reduced its supply to the Company or communicated to the Company or any of its Subsidiaries (orally, in writing or otherwise) an intent to materially increase the ordinary course price, materially reduce supply or materially change the quantitative or qualitative terms of its business consistent relationship with past practicethe Company or its Subsidiaries; (g) to the Knowledge of the Company, no key employee of the Company or its Subsidiaries has communicated to the Company or any of its Subsidiaries (viiorally, in writing or otherwise) an intent to terminate or otherwise significantly decrease his or her contribution to the Company or its Subsidiaries; and (h) there has not been any communication from the Nasdaq Global Market material damage, destruction or other material casualty loss with respect to the delisting of the Common Stockany tangible asset or tangible property owned, (viii) any cancellation leased or otherwise used by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, having a value prior to take any action described in this section by the Company or any of its Subsidiariessuch losses exceeding $25 million.

Absence of Certain Changes or Events. Since the date Except as set forth on Schedule 3.12 of the Company Balance Sheet, Disclosure Schedule or in the Company has conducted its business only in the ordinary course of business consistent with past practice and Financial Statements, or as otherwise expressly permitted or expressly contemplated by this Agreement, since December 31, 2017, there has not been: been (i) any change or development in the business, operations, assets, liabilities, condition (financial or otherwise), results of operations, cash flows or properties of the Company or any of its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Change to the CompanyEffect, (ii) any change by the Company or any of its Subsidiaries in its accounting methods, principles or practices, other than changes required by applicable law or GAAP or regulatory accounting as concurred in by the Company’s independent registered public accounting firm, (iii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, of any capital stock of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any optionsredemption, warrants, calls or rights to acquire any such shares purchase or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company acquisition of any of its assetssecurities, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market practice or with respect to shares tendered in payment for the delisting exercise of stock options or withheld for tax purposes upon the Common Stockvesting of restricted stock awards or performance share awards or upon the exercise of stock options, (viiiiv) establishment or amendment of any cancellation by bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any increase in the compensation payable or to become payable to any directors or executive officers of the Company or any of its Subsidiaries Subsidiaries, or any contract or arrangement entered into to make or grant any severance or termination pay, or the taking of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of action not in the ordinary course of business with respect to the compensation or employment of any properties directors, officers or assets (real, personal or mixed, tangible or intangible) by employees of the Company or any of its Subsidiaries, or (xv) any agreement, whether material change in writing the credit policies or otherwise, to take any action described in this section by procedures of the Company or any of its Subsidiaries, the effect of which was or is to make any such policy or procedure less restrictive in any respect.

Absence of Certain Changes or Events. Since Except as disclosed in the SEC Documents filed and publicly available prior to the date of this Agreement (the "Company Balance SheetFiled SEC Documents") or in Section 4.1(g) of the Disclosure Schedule, since December 31, 1998, the Company has conducted its business only in the ordinary course of business consistent with past practice practice, and there has not been: been (i) any event, occurrence or development of a state of circumstances which has had or could reasonably be expected to have a Material Adverse Change to the CompanyEffect, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s 's capital stock or any of its Subsidiaries’ capital stock, or any purchaserepurchase, redemption or other acquisition by the Company or any of its Subsidiaries subsidiaries of any outstanding shares of the Company’s capital stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementssubsidiaries, (iii) any split, combination or reclassification of any of the Company’s its capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its Subsidiaries’ capital stock, (iv) (A) any granting by the Company or any of its subsidiaries to any current or former director, officer or employee of the Company or any of its subsidiaries of any increase in compensation or benefits, except in the ordinary course of business consistent with past practice, (B) any granting by the Company or any of its subsidiaries to any such director, officer or employee of any increase in severance or termination pay (including the acceleration in the exercisability of Company Options or in the vesting of Shares (or other property) or the provision of any tax gross-up), except as was required under employment, severance or termination agreements or plans in effect as of December 31, 1998 which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect, or (C) any entry by the Company or any of its Subsidiaries subsidiaries into any licensing employment, deferred compensation, severance or other termination agreement with regard to the disposition of any material intellectual property other than licensessuch current or former director, distribution agreementsofficer or employee, advertising agreements, sponsorship agreements or merchant program agreements entered into except in the ordinary course of business consistent with past practice, (v) any material damage, destruction or loss, whether or not covered by insurance, that has had or could have a Material Adverse Effect, (vi) any change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation practices by the Company of or any of its assetssubsidiaries, includingexcept insofar as may have been required by a change in generally accepted accounting principles, without limitation(vii) any amendment of any material term of any outstanding security of the Company or any of its subsidiaries, writing down (viii) any incurrence, assumption or guarantee by the value Company or any of capitalized inventory or writing off notes or accounts receivable its subsidiaries of any material indebtedness for borrowed money other than in the ordinary course of business consistent with past practice, but in no event in the amount of more than $250,000 in the aggregate, (viiix) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation creation or assumption by the Company or any of its Subsidiaries subsidiaries of any debts or waiver of Lien on any claims or rights of material value, (ix) any sale, transfer or asset other disposition outside of than in the ordinary course of business consistent with past practice, but in no event in the amount of more than $250,000 for any one transaction or $500,000 in the aggregate, (x) any making of any properties loan, advance or assets capital contributions to or investment in any person other than (realA) made in the ordinary course of business consistent with past practice, personal but in no event in the amount of more than $100,000 for any one transaction or mixed$150,000 in the aggregate and (B) investments in cash equivalents made in the ordinary course of business consistent with past practice, tangible (xi) any transaction or intangible) commitment made, or any contract or agreement entered into, by the Company or any of its Subsidiaries, subsidiaries relating to its assets or business (xincluding the acquisition or disposition of any assets or the merger or consolidation with any person) or any agreement, whether in writing or otherwise, to take any action described in this section relinquishment by the Company or any of its Subsidiaries.subsidiaries of any contract or other right, in either case, material to the Company or any of its subsidiaries, other than transactions and commitments in the ordinary course of business consistent with past practice and those contemplated by this Agreement, but in no event representing commitments on behalf of the Company or any of its subsidiaries of more than $250,000 for any transaction or $500,000 for any series of transactions, (xii) any material labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company or any of its subsidiaries, which employees were not subject to a collective bargaining agreement at December 31, 1998, or any material lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees or

Absence of Certain Changes or Events. Since December 31, 2006, there has not been any change, effect, event, circumstance, occurrence or state of facts, which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect. From December 31, 2006 to the date of the Company Balance Sheetthis Agreement, except as contemplated by this Agreement, the Company has and its Subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice and and, during such period, there has not been: (i) any Material Adverse Change to the Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock stock, property or property) otherwise in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, except for any dividend or distribution by a Subsidiary of the Company to the Company or another Subsidiary of the Company; (ii) any purchaseredemption, redemption repurchase or other acquisition by the Company or any of its Subsidiaries of (x) any shares of the Company’s capital stock or any other securities of the Company or any of its Subsidiaries or (y) any options, warrants, calls or rights to acquire acquire, or securities that are convertible into or exchangeable for, any such shares of capital stock or other voting securities (except for repurchases from employees following their termination pursuant upon the exercise of options, warrants, calls or rights disclosed to Parent to the terms of their pre-existing stock option extent net exercises are provided for in the plans or purchase agreementsagreements governing such options, warrants, calls or rights); (iii) (x) any split, combination or reclassification of any of granting by the Company’s Company or any of its Subsidiaries’ capital stockSubsidiaries to any of their directors, officers or employees of any material increase in compensation or fringe benefits, except for increases that are required under any Company Plan or, in the case of any employee who is not an executive officer or director, for increases in the ordinary course of business, (ivy) any granting to any director, officer or employee of the right to receive any severance or termination pay not provided for under any Company Plan or, otherwise granted in the ordinary course of business, or (z) any entry by the Company or any of its Subsidiaries into any licensing employment, consulting or other severance agreement or arrangement with regard any director, officer or employee of the Company or its Subsidiaries pursuant to which the disposition total annual compensation or the aggregate severance benefits exceed $200,000, or any adoption of or material amendment of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, Company Plan; (viv) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent may be appropriate to conform to changes in GAAP statutory or regulatory accounting rules or Generally Accepted Accounting Principles or regulatory requirements with respect thereto; (v) any settlement or compromise of any material Tax liability by the Commission, Company or any of its Subsidiaries; (vi) any material revaluation change in Tax accounting principles or Tax elections by the Company or any of its Subsidiaries, except insofar as may have been required by applicable law; (vii) any assumption, incurrence, endorsement or guarantee of any indebtedness (including any obligations of the type described in Section 3.21(a)(ii)); (viii) any acquisition or agreement to acquire any assets, except for acquisitions of inventory in the ordinary course of business and consistent with past practice; (ix) any sale, lease, license, encumbrance or other disposition of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than sales of inventory in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or ; (x) any agreementsettlement or compromise of any material pending or threatened claims, whether in writing litigations, arbitrations or otherwise, to take other proceedings; or (xi) any action described in this section by the Company or any of its Subsidiariesmaterial capital expenditures.

Absence of Certain Changes or Events. Since Except as disclosed in the Company SEC Documents filed with the SEC prior to the date of this Agreement or as set forth in the Company Balance SheetLetter, since December 31, 1998, (A) the Company has conducted not incurred any liability or obligation (indirect, direct or contingent) that would result in a Material Adverse Effect on the Company, or entered into any material oral or written agreement or other transaction that is not in the ordinary course of business or that would result in a Material Adverse Effect on the Company, (B) the Company has not sustained any loss or interference with their business or properties from fire, flood, windstorm, accident or other calamity (whether or not covered by insurance) that has had a Material Adverse Effect on the Company, (C) there has been no change in the capital stock of the Company except for the issuance of shares of the Company Common Stock pursuant to Company Stock Options and no dividend or distribution of any kind declared, paid or made by the Company on any class of its business only stock, (D) there has not been (v) any adoption of a new Company Plan (as hereinafter defined), (w) any amendment to a Company Plan materially increasing benefits thereunder, (x) any granting by the Company to any executive officer or other key employee of the Company of any increase in compensation, except in the ordinary course of business consistent with past prior practice and there has not been: or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the Company Annual Report, (iy) any Material Adverse Change to the Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition granting by the Company to any such executive officer or any of its Subsidiaries other key employee of any increase in severance or termination agreements in effect as of the Company’s capital stock or any other securities date of the most recent audited financial statements included in the Company Annual Report or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iiiz) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing employment, severance or termination agreement with any such executive officer or other agreement with regard key employee, (E) there has not been any material changes in the amount or terms of the indebtedness of the Company from that described in the Company SEC Documents filed prior to the disposition of date hereof and (F) there has been no event causing a Material Adverse Effect on the Company, nor any material intellectual property other than licensesdevelopment that would, distribution agreements, advertising agreements, sponsorship agreements individually or merchant program agreements entered into in the ordinary course of business consistent with past practiceaggregate, (v) any material change by result in a Material Adverse Effect on the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesCompany.

Absence of Certain Changes or Events. Since the date Except as set forth on Schedule 3.9 of the Company Balance SheetDisclosure Schedule, the Company since July 31, 1999, neither HMTHP nor HMHIC has conducted its business only (a) except in the ordinary course of business business, consistent with past practice and there has not been: (i) any Material Adverse Change to the Companypractices sold, (ii) any declaration, setting aside transferred or payment of any dividend onotherwise disposed of, or other distribution (whether in cashagreed to sell, stock transfer or property) in respect of, any of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company otherwise dispose of any of its assets; (b) entered or agreed to enter into any agreement or arrangement granting any preferential rights to purchase any of its assets, includingor requiring the consent of any Person to the transfer or assignment of any of its assets; (c) terminated or amended any Material Contract or any Contract related to a Material Subscriber Group, without limitationMaterial HMTHP Broker, writing down Material HMHIC Broker, Material HMTHP Provider, Material Policyholder, Material HMHIC Broker or Material HMHIC Provider; (d) made any material changes in the value accounting, actuarial, investment, reserving, underwriting or claims administration or servicing policies, practices or procedures, standards, methods, assumptions or principles of capitalized inventory HMTHP or writing off notes HMHIC; (e) taken any action with respect to the payment of any distributions in cash or accounts receivable property to its stockholders; (f) made any change in the authorized or issued capital stock of HMTHP or HMHIC, merged or consolidated with any other entity, repurchased, redeemed or otherwise acquired any outstanding shares of capital stock or other securities of HMTHP or HMHIC, or issued or sold any capital stock or issued or granted any option, warrant, call, commitment, subscription, right to purchase or contract of any character relating to the authorized or issued capital stock of HMTHP or HMHIC or any securities convertible into or exchangeable for shares of capital stock of HMTHP or HMHIC; (g) amended its articles of incorporation, bylaws, or the terms of the its stock; (h) incurred any indebtedness, in any one or more instances, for borrowed money in excess of $20,000; (i) created or assumed any Encumbrance on any Asset of HMTHP or HMHIC; (j) suffered any damage, destruction or other casualty loss affecting HMTHP or HMHIC which, after giving effect to any applicable insurance payment, has had or could reasonably be expected to have a financial impact on HMTHP or HMHIC in excess of $20,000; or (k) entered into any other transaction or taken any other action other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariesbusiness.

Absence of Certain Changes or Events. Since Except as disclosed in the ------------------------------------ Company Disclosure Schedule and the SEC Documents filed and publicly available after the date of the Company Balance Sheet, since the date of the Company Balance Sheet, the Company has conducted its business only in the ordinary course of business course, consistent with past practice and there has not been: been (i) any Material Adverse Change event, occurrence, development or state of circumstances or facts that has had or is reasonably likely to have a material adverse effect on the Company, except for any such event, occurrence, development or state of facts or circumstances attributable to conditions affecting the paperboard or wallboard industries or the U.S. economy as a whole, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ 's capital stock, or (iii) any purchase, redemption or other acquisition granting by the Company or any of its Subsidiaries of subsidiaries to any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any optionsdirector, warrants, calls or rights to acquire any such shares officer or other securities except for repurchases from employees following their termination pursuant to the terms employee of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into subsidiaries of (x) any licensing options or rights to acquire equity securities of the Company, (y) any increase in compensation, bonuses or other agreement with regard to benefits, except the disposition vesting of any material intellectual property benefits and for normal awards, increases and other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into payments in the ordinary course of business consistent with past practicepractice or as was required under employment agreements and Company Plans in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents or (z) severance or termination pay or increase thereof, (iv) any incurrence, assumption or guarantee by the Company or any of its subsidiaries of any indebtedness for borrowed money other than in the ordinary course of business and in amounts and on terms consistent with past practice (it being agreed that the aggregate indebtedness for borrowed money of the Company and its subsidiaries at any time will be no more than $215 million), (v) any material change creation or other incurrence by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value subsidiaries of capitalized inventory or writing off notes or accounts receivable any Lien on any material asset other than in the ordinary course of business consistent with past practice, (vi) any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or the assets of the Company or any of its subsidiaries that has had or would reasonably be expected to have a material adverse effect on the Company, (vii) any communication from material labor dispute involving the Nasdaq Global Market with respect to the delisting employees of the Common StockCompany or any of its subsidiaries, (viii) any cancellation transaction or commitment made, or any contract or arrangement entered into, by the Company or any of its Subsidiaries subsidiaries (including the acquisition or disposition of any debts or waiver of any claims or rights of material value, (ixassets) any sale, transfer or other disposition outside of than in the ordinary course of business consistent with past practice except for the disposition of certain assets of the Company as set forth on the Company Disclosure Schedule, or (ix) any amendment of any properties or assets (real, personal or mixed, tangible or intangible) by term of any outstanding security of the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its Subsidiariessubsidiaries.

Absence of Certain Changes or Events. Since Except for liabilities ------------------------------------- incurred in connection with or expressly permitted by this Agreement and the Option Agreement and except as disclosed in SkyTel SEC Documents filed and publicly available prior to the date of this Agreement (as amended to the Company Balance Sheetdate of this Agreement, the Company has "SkyTel Filed SEC Documents"), since December 31, 1998, SkyTel and its Subsidiaries have conducted its their business only in the ordinary course of business consistent with past practice practice, and there has not been: been (i1) any Material Adverse Change to the Companyin SkyTel, (ii2) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any of the Company’s or any of its Subsidiaries’ SkyTel's capital stock, or any purchase, redemption except for dividends or other acquisition distributions declared, set aside or paid by SkyTel as required by and in accordance with the Company or any respective terms of its Subsidiaries of any such capital stock as of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsdate hereof, (iii3) any split, combination or reclassification of any of the Company’s SkyTel's capital stock or any issuance or the authorization of its Subsidiaries’ any issuance of any other securities in respect of, in lieu of or in substitution for shares of SkyTel's capital stock, (iv4) entry (A) any granting by the Company SkyTel or any of its Subsidiaries into to any licensing current or former director, executive officer or other agreement with regard to the disposition employee of SkyTel or its Subsidiaries of any material intellectual property increase in compensation, bonus or other than licensesbenefits, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into except for normal increases in cash compensation in the ordinary course of business consistent with past practicepractice or as was required under any employment agreements in effect as of the date of the most recent audited financial statements included in SkyTel Filed SEC Documents, (vB) any material granting by SkyTel or any of its Subsidiaries to any such current or former director, executive officer or employee of any increase in severance or termination pay, except as was required under any employment, severance or termination agreements in effect as of the date of the most recent audited financial statements in SkyTel Filed SEC Documents or as expressly permitted by Section 5.07(d), (C) any entry by SkyTel or any of its Subsidiaries into, or any amendments of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or domestic employee, or (D) any amendment to, or modification of, any SkyTel Stock Option or Warrant, (5) any damage, destruction or loss, whether or not covered by insurance, that individually or in the aggregate is reasonably likely to have a Material Adverse Effect on SkyTel, (6) except insofar as may have been required by a change by the Company in its GAAP, any change in accounting methods, principles or practices, except as required practices by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company SkyTel or any of its Subsidiaries materially affecting the consolidated financial position or results of operations of SkyTel or (7) any tax election or any settlement or compromise of any debts income tax liability that individually or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of in the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, aggregate is reasonably likely to take any action described in this section by the Company or any of its Subsidiarieshave a Material Adverse Effect on SkyTel.

Absence of Certain Changes or Events. Since Except as described herein or in the Xxxxxxx Reports: (a) There has not been (i) any material adverse change, financial or otherwise, in the business, operations, properties, assets, or condition of Xxxxxxx (whether or not covered by insurance) materially and adversely affecting the business, operations, properties, assets, or condition of Xxxxxxx; (b) Xxxxxxx has not (i) amended its Articles of Incorporation or by-laws; (ii) declared or made, or agreed to declare or make any payment of dividends or distributions of any assets of any kind whatsoever to shareholders or purchased or redeemed, or agreed to purchase or redeem, any of its capital stock; (iii) waived any rights of value which in the aggregate are extraordinary or material considering the business of Xxxxxxx; (iv) made any material change in its method of management, operation, or accounting; (v) entered into any other material transactions; (vi) made any accrual or arrangement for or payment of bonuses or special compensation of any kind or any severance or termination pay to any present or former officer or employee; (vii) increased the rate of compensation payable or to become payable by it to any of its officers or directors or any of its employees; or (viii) made any increase in any profit sharing, bonus, deferred compensation, insurance, pension, retirement, or other employee benefit plan, payment, or arrangement, made to, for, or with its officers, directors, or employees; (c) Xxxxxxx has not (i) granted or agreed to grant any options, warrants, or other rights for its stocks, bonds, or other corporate securities calling for the issuance thereof; (ii) borrowed or agreed to borrow any funds or incurred, or become subject to, any material obligation or liability (absolute or contingent) except liabilities incurred in the ordinary course of business; (iii) paid or agreed to pay any material obligation or liability (absolute or contingent) other than current liabilities reflected in or shown on the most recent Xxxxxxx balance sheet and current liabilities incurred since that date of the Company Balance Sheet, the Company has conducted its business only in the ordinary course of business consistent and professional and other fees and expenses incurred in connection with past practice the preparation of this Agreement and there has not been: (i) any Material Adverse Change to the Company, (ii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any consummation of the Company’s or any of its Subsidiaries’ capital stock, or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities of the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, transactions contemplated hereby; (iv) entry by the Company sold or any of its Subsidiaries into any licensing transferred, or other agreement with regard agreed to the disposition of any material intellectual property other than licensessell or transfer, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, includingproperty, without limitationor rights (except assets, writing down property, or rights not used or useful in its business which, in the aggregate have a value of capitalized inventory less than $5,000), or writing off notes canceled, or accounts receivable other than in the ordinary course of business consistent with past practiceagreed to cancel, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver claims (except debts or claims which in the aggregate are of a value of less than $5,000); (v) made or permitted any amendment or termination of any claims contract, agreement, or rights license to which it is a party if such amendment or termination is material, considering the business of material valueXxxxxxx; or (vi) issued, (ix) delivered, or agreed to issue or deliver any salestock, transfer bonds, or other disposition outside corporate securities including debentures (whether authorized and unissued or held as treasury stock), except in connection with this Agreement; and 14 (d) To the best knowledge of the ordinary course of business of Xxxxxxx, it has not become subject to any properties law or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiariesregulation which materially and adversely affects, or (x) any agreementin the future may adversely affect, whether in writing the business, operations, properties, assets, or otherwise, to take any action described in this section by the Company or any condition of its Subsidiaries.Xxxxxxx. 3.7

Absence of Certain Changes or Events. Since Except for liabilities incurred in connection with this Agreement or as expressly permitted pursuant to Section 4.01(a)(i) through (xiv), since the date of the most recent financial statements included in the Filed Company Balance SheetSEC Documents, the Company has and its Subsidiaries have conducted its business their respective businesses only in the ordinary course of business consistent with past practice practice, and there has not been: (i) been any Material Adverse Change to Change, and from such date until the Company, date hereof there has not been (iii) any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, to any Capital Stock of the Company’s Company or any of its Subsidiaries’ capital stock, except for dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent, (ii) any purchase, redemption or other acquisition by the Company or any of its Subsidiaries of any of the Company’s capital stock or any other securities Capital Stock of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsCapital Stock, (iii) any split, combination or reclassification of any Capital Stock of the Company’s Company or any of its Subsidiaries’ capital stockSubsidiaries or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for their Capital Stock, (iv) (A) any granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries (each a “Participant”) of any increase in compensation, bonus or fringe or other benefits or any granting of any type of compensation or benefits to any Participant not previously receiving or entitled to receive such type of compensation or benefit, except (1), in the case of employees who are neither directors nor officers, for normal increases in cash compensation in the ordinary course of business consistent with past practice or (2) as was required under any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent financial statements included in the Filed Company SEC Documents, (B) any granting by the Company or any of its Subsidiaries to any Participant of (1) any change of control, severance, termination, retention or any similar compensation or benefits or any increases therein or any payment thereof or (2) any right to receive any change of control, severance, termination, retention or any similar compensation or benefits or any increases therein, (C) any entry by the Company or any of its Subsidiaries into into, or any licensing amendment or other agreement with regard to the disposition termination of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into in the ordinary course of business consistent with past practice, (v1) any material employment, deferred compensation, consulting, severance, change by the Company in its accounting methodsof control, principles termination, retention, indemnification, employee benefit, loan, stock repurchase or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (vii) any communication from the Nasdaq Global Market with respect to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by similar agreement between the Company or any of its Subsidiaries, on the one hand, and any Participant, on the other hand, or (x2) any agreement, whether in writing or otherwise, to take any action described in this section by agreement between the Company or any of its Subsidiaries., on the one hand, and any Participant, on the other hand, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of a nature contemplated by this Agreement (all such agreements under this clause (C), collectively, “Company Benefit Agreements”), (D) any payment of any benefit under, or the grant of any award under, or any amendment to, or termination of, any bonus, incentive, performance or other compensation plan or arrangement, Company Benefit Agreement or Company Benefit Plan (including in respect of Company Stock Options, Company Restricted Shares, Company Stock-Based Awards, “phantom” stock, stock appreciation rights, restricted stock, “phantom” stock rights, restricted stock units, deferred stock units, performance stock units or other stock-based or stock-related awards or the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder) except as required to comply with applicable law or any Company Benefit Agreement or Company Benefit Plan in effect as of the date of the most recent financial statements included in the Filed Company SEC Documents, (E) the taking of any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan or Company Benefit Agreement or (F) the taking of any action to accelerate the vesting or payment of any compensation or benefits under any Company Benefit Plan or Company Benefit Agreement, (v) any damage, destruction or loss to any asset of the Company or any of its Subsidiaries, whether or not covered by insurance, that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect, (vi) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities or businesses, except insofar as may have been required by a change in GAAP or (vii) any material tax election, any change in material method of accounting for tax purposes or any settlement or compromise of any material income tax liability. Table of Contents

Absence of Certain Changes or Events. Since Except as set forth in Section 3.7 of the Company Letter or as disclosed in the Company SEC Documents filed with the SEC prior to the date of this Agreement, since June 30, 2001 (but excluding items disclosed under the heading "Certain Factors" in the Company's Quarterly Report on Form 10-Q for the period ended June 30, 2001, as filed with the SEC and similar disclosures elsewhere in the Company Balance SheetSEC Documents filed prior to the date hereof (collectively, the "RISK FACTOR DISCLOSURES")), (a) the Company has conducted and its business only Subsidiaries have not incurred any liability or obligation (indirect, direct or contingent), or entered into any oral or written agreement or other transaction, that is not in the ordinary course of business consistent or that would result in a Material Adverse Effect on the Company, (b) the Company and its Subsidiaries have not sustained any loss or interference with past practice their business or properties from fire, flood, windstorm, accident or other calamity (whether or not covered by insurance) that has had a Material Adverse Effect on the Company, (c) there has been no change in the capital stock of the Company except for the issuance of shares of the Company Common Stock pursuant to Company Stock Options, the 1987 Plan or the 1994 Employee Stock Purchase Plan, and no dividend or distribution of any kind declared, paid or made by the Company on any class of its stock, (d) there has not been: been (i) any Material Adverse Change to the Companyadoption of a new Company Plan (as hereinafter defined), (ii) any declarationamendment to a Company Plan materially increasing benefits thereunder, setting aside or payment of (iii) any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of granting by the Company’s Company or any of its Subsidiaries’ capital stock, or Subsidiaries to any purchase, redemption executive officer or other acquisition by key employee of the Company or any of its Subsidiaries of any increase in compensation, except in the ordinary course of business consistent with prior practice or as was required under employment agreements in effect as of the Company’s capital stock or any other securities date of the most recent audited financial statements included in the Company or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option or purchase agreementsSEC Documents, (iiiiv) any split, combination or reclassification of any of granting by the Company’s Company or any of its Subsidiaries’ capital stock, Subsidiaries to any such executive officer or other key employee of any increase in severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Company SEC Documents or (ivv) any entry by the Company or any of its Subsidiaries into any licensing employment, severance or termination agreement with any such executive officer or other agreement with regard to the disposition of key employee, (e) there has not been any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into changes in the ordinary course amount or terms of business consistent with past practice, (v) any material change by the indebtedness of the Company in and its accounting methods, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than Subsidiaries from that described in the ordinary course of business consistent with past practice2000 Company Annual Report (excluding the Risk Factor Disclosures), and (viif) there has been no event causing a Material Adverse Effect on the Company, nor any communication from development that would, individually or in the Nasdaq Global Market with respect to aggregate, result in a Material Adverse Effect on the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts or waiver of any claims or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, or (x) any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesCompany.

Absence of Certain Changes or Events. Since September 30, 1997, (a) there has not been any Material Adverse Change, (b) there has not been any damage, destruction or loss, whether covered by insurance or not, having a Material Adverse Effect, (c) there has not been any condition, event or occurrence which, individually or in the date of the Company Balance Sheetaggregate, the Company has could reasonably be expected to have a Material Adverse Effect or give rise to a Material Adverse Change, (d) MedCath and its subsidiaries have conducted its business their respective businesses only in the ordinary course course, taken as a whole, (e) MedCath has not changed its accounting principles or methods in any material respect except insofar as may be required by a change in generally accepted accounting principles, (f) there has been no condition, event or occurrence which could reasonably be expected to prevent, materially hinder or materially delay the ability of business consistent with past practice and MedCath to consummate the Merger or the transactions contemplated by this Agreement, (g) there has not been: (i) any Material Adverse Change to the Company, (ii) been any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in with respect of, any to the equity interests of the Company’s MedCath or any of its Subsidiaries’ capital stocksubsidiaries, other than dividends paid by wholly-owned subsidiaries and (h) MedCath and its subsidiaries have not (i) increased the compensation or any purchase, redemption or other acquisition by the Company or any of its Subsidiaries fringe benefits of any present or former director, officer or employee of the Company’s capital stock or any other securities of the Company MedCath or its Subsidiaries or any options, warrants, calls or rights to acquire any such shares or other securities subsidiaries (except for repurchases from employees following their termination pursuant to the terms of their pre-existing stock option increases in salary or purchase agreements, (iii) any split, combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock, (iv) entry by the Company or any of its Subsidiaries into any licensing or other agreement with regard to the disposition of any material intellectual property other than licenses, distribution agreements, advertising agreements, sponsorship agreements or merchant program agreements entered into wages in the ordinary course of business consistent with past practice), (vii) granted any material change by the Company in severance or termination pay to any present or former director or officer of MedCath or its accounting methodssubsidiaries or, principles or practices, except as required by concurrent changes in GAAP or by the Commission, (vi) any material revaluation by the Company of any of its assets, including, without limitation, writing down the value of capitalized inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practicebusiness, to any other employee of MedCath or its subsidiaries; (viiiii) any communication from the Nasdaq Global Market with respect loaned or advanced money or other property by MedCath or its subsidiaries to the delisting of the Common Stock, (viii) any cancellation by the Company or any of its Subsidiaries of any debts their present or waiver of any claims former directors, officer or rights of material value, (ix) any sale, transfer or other disposition outside of the ordinary course of business of any properties or assets (real, personal or mixed, tangible or intangible) by the Company or any of its Subsidiaries, employees or (xiv) established, adopted, entered into, amended or terminated any agreement, whether in writing or otherwise, to take any action described in this section by the Company or any of its SubsidiariesBenefit Plan.