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

Absence of Certain Changes or Events. Since December 31, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. (a) Since December 31, 1998the date of the Company Balance Sheet, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement Agreement, or disclosed in any SEC Exchange Act Report filed since December 31, 1998 after the date of the Company Balance Sheet and prior to the date of this Agreementhereof, the Company and the Subsidiaries have has conducted their businesses its business only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, practices and there has not been any (i) any Material Adverse Effect with respect to the Company, Effect; (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practicespolicies, with respect to except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, practices; (v) any failure by except as set forth in Section 3.07(v) of the Company to revalue any asset in accordance with GAAP consistent with past practiceDisclosure Schedule, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities, ; (viiivi) other than except as set forth in any contracts (as in effect on Section 3.07(vi) of the date hereof) referred to in Section 3.10Disclosure Schedule, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practicepractices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any entering intoCompany Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, renewaladvance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, modification advances or extension ofcapital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, arrangement License or agreement other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any affiliate provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xxvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, amendment to a Material Adverse Effect with respect Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to the Companyadjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any the Filed Company SEC Report filed Reports since December 31, 1998 and prior 2004, to the date of this Agreement, the Company and the Company Subsidiaries have conducted their respective businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 19982004, there has not been (ia) any change in the financial condition, results of operations, or business of the Company or any of the Company Subsidiaries that would have a Material Adverse Effect with respect to on the Company, ; (iib) any damage, destruction destruction, or loss (whether or not covered by insurance) with respect to any property or asset assets of the Company or any Subsidiary and having, individually or in of the aggregate, Company Subsidiaries that would have a Material Adverse Effect with respect to on the Company, ; (iiic) any material change by the Company or any of the Company Subsidiaries in its their respective accounting methods, principles principles, or practices, except for compliance with respect to applicable new requirements of the Company Financial Accounting Standards Board or GAAP; (ivd) any revaluation by the Company or any of the Company Subsidiaries of any asset of their respective material assets in any material respect; (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than e) except in the ordinary course of business consistent with past practice, (v) any failure by or as set forth in the Company to revalue any asset in accordance with GAAP consistent with past practiceDisclosure Schedule at Section 2.08(e), (vi) any entry by the Company or any Subsidiary of the Company Subsidiaries into any commitment or transaction material to the Company and or any of the Subsidiaries taken Company Subsidiaries; (f) except as a wholeset forth in the Company Disclosure Schedule at Section 2.08(f), (vii) any declaration, setting aside aside, or payment of any dividend dividends or distribution distributions in respect of any capital stock shares of the Company Common Stock (other than regular, quarterly cash dividends paid thereon not in excess of $0.17 per share) or any redemption, purchase purchase, or other acquisition of any of its securities, securities or any of the securities of any of the Company Subsidiaries; or (viiig) other than except as set forth in any contracts (as the Company Disclosure Schedule at Section 2.08(g) other than in effect on the date hereof) referred to in Section 3.10ordinary course of business for employees other than officers of the Company, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), stock purchase 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 customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the CompanyCompany Subsidiaries.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth on Schedule 2.9 hereto, since June 30, 1997, no event or circumstance has occurred resulting or reasonably likely to result in Section 3.08 a Material Adverse Effect. Without limiting the generality of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice andforegoing, since December 31, 1998, that date there has not been (i) any Material Adverse Effect been, with respect to the Company: (a) Any change in its Business, operations (iias now conducted or as presently proposed to be conducted), assets, properties or rights, prospects or condition (financial or otherwise), or combination thereof which reasonably could be expected to result in a Material Adverse Effect; (b) Other than in the usual and ordinary course of business, any damageincrease in amounts payable by the Company to or for the benefit of or committed to be paid by the Company to or for the benefit of any officer, destruction director, stockholder, consultant, agent or loss (whether employee of the Company, in any capacity, or not covered by in any benefits granted under any bonus, stock option, profit sharing, pension, retirement, deferred compensation, insurance) , or other direct or indirect benefit plan with respect to any such person; (c) Any transaction entered into or carried out other than in the ordinary and usual course of its business, including without limitation, any transaction resulting in the incurrence of liabilities or obligations; (d) Any material change made in the methods of doing business or in the accounting principles or practices or the method of application of such principles or practices; (e) Any mortgage, pledge, lien, security interest, hypothecation, charge or other encumbrance imposed or agreed to be imposed on or with respect to any of its properties that will not be discharged prior to the Closing Date except for financing statements filed by personal property lessors as a matter of notification only; (f) Except in the ordinary course of business, any sale, lease or asset of the Company other disposition of, or any Subsidiary and havingagreement to sell, lease or otherwise dispose of any of its properties, assets or services, individually or in the aggregate, a Material Adverse Effect with respect in excess of $100,000; (g) Any purchase of or any agreement to the Companypurchase capital assets or any lease or any agreement to lease, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitationas lessee, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party havingassets, individually or in the aggregate, with a Material Adverse Effect purchase price or carrying value in excess of $100,000; (h) Any modification, waiver, change, amendment, release, rescission or termination of, or accord and satisfaction with respect to, any material term, condition or provision of any contract, agreement, license or other instrument to which the Company is a party, other than any satisfaction by performance in accordance with the terms thereof in the usual and ordinary course of its business; (i) Any declaration of, or dividend or other distribution to the Company's stockholders, purchase, redemption or reclassification of any of the Company's capital stock or stock split, stock dividend, exchange or recapitalization or execution of any agreement in respect of the foregoing; (j) Any damage, destruction or similar loss, whether or not covered by insurance, adversely affecting the Business; or (k) Any commitment by the Company to do any of the foregoing.

Absence of Certain Changes or Events. Since December 31From June 1, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to 2012 through the date of this Agreement, the : (a) The Company and the Company Subsidiaries have conducted their respective businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any all material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than respects in the ordinary course of business consistent with past practicebusiness. (b) There has not occurred, (v) arisen or come into existence any failure by the Company to revalue any asset in accordance with GAAP consistent with past practicefact, (vi) any entry by the Company change, event, development or circumstance, or any Subsidiary into any commitment worsening thereof, which has had or transaction material would reasonably be expected to the have a Company and the Subsidiaries taken as a whole, Material Adverse Effect. (viic) There has not been any declaration, accrual, setting aside or payment of any dividend or other distribution in with respect to any shares of any capital stock of the Company or any redemption, purchase of the Company Subsidiaries (except for dividends or other acquisition of distributions by any of its securities, direct or indirect wholly-owned Company Subsidiary to the Company or to any wholly-owned Company Subsidiary). (viiid) other than as set forth There has not been any material change in any contracts method of financial accounting or financial accounting practice or internal controls (as in effect on including internal controls over financial reporting) by the date hereof) referred to in Section 3.10, any increase in or establishment of any 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, Company or any other Company Subsidiary. (e) Except to the extent required by applicable Laws, there has not been (A) any (x) increase in the compensation payable or to become payable to any the directors, officers or key employees of the Company or the Company Subsidiaries or (y) payment to any Subsidiarydirector or officer of the Company or the Company Subsidiaries of any material bonus, making to any director or officer of the Company or the Company Subsidiaries of any material profit-sharing or similar payment, or grant to any director or officer of the Company or the Company Subsidiaries of any rights to receive severance, termination, retention or Tax gross-up compensation or benefits (in each case, except customary increases in compensation to employees generally incurred for increases, payments or grants in the ordinary course of business and consistent with past practice, ) or (ixB) any entering intoestablishment, renewaladoption, modification entry into or extension ofamendment of any collective bargaining, bonus, profit sharing, thrift, compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any material contractdirector, arrangement officer or agreement with any affiliate employee of the Company, Company or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the CompanyCompany Subsidiary.

Absence of Certain Changes or Events. Since December 31Except for liabilities incurred in connection with this Agreement or the transactions contemplated hereby, 1998, and except as set forth in Section 3.08 3.1(g) of the Company Disclosure Schedule Schedule, or as contemplated by this Agreement or disclosed in any the Company SEC Report Documents filed and publicly available prior to the date hereof (as amended to the date hereof, "Company Filed SEC Documents"), since December 31, 1998 and prior to the date of this Agreement2001, the Company and the Subsidiaries its subsidiaries have conducted their respective businesses only in the ordinary course course, and there has not been: (i) any material adverse change in a manner consistent with past practice andthe Company, including, but not limited to, any material adverse change arising from or relating to fraudulent or unauthorized activity, (ii) any issuance of Company Stock Options or restricted shares of Company Common Stock (in any event identifying in Section 3.1(g) of the Company Disclosure Schedule the issue date, exercise price and vesting schedule, as applicable, for issuances since December 31, 1998, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, 2001), (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, other than regular quarterly cash dividends not to exceed $0.10 on the Company Common Stock in accordance with its terms and regular cash dividends on the REIT Preferred Stock of Preferred Capital Corp. in accordance with its terms, (iv) 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 shares of the Company's capital stock, except for issuances of Company Common Stock (and LTWs, if any) upon the exercise of Company Stock Options awarded prior to the date hereof in accordance with their present terms, (v) prior to the date hereof (A) any capital stock of granting by the Company or any redemptionof its subsidiaries to any current or former director, purchase executive officer or other acquisition Employee of any increase in compensation, bonus or other benefits, except for increases to then current Employees who are not directors or executive officers that were made in the ordinary course of business, (B) any granting by the Company or any of its securitiessubsidiaries to any such current or former director, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, executive officer or Employee of any increase in severance or establishment termination pay, or (C) any entry by the Company or any of its subsidiaries into, or any bonusamendment of, insurance, severanceany employment, deferred compensation, pensionconsulting, retirementseverance, profit sharingtermination or indemnification agreement with any such current or former director, stock option executive officer or any Employee, (vi) except insofar as may have been required by a change in GAAP or regulatory accounting principles, any change in accounting methods, principles or practices by the Company affecting its assets, liabilities or business, including, without limitation, the granting any reserving, renewal or residual method, or estimate of stock optionspractice or policy, (vii) any Tax election or change in any Tax election, stock appreciation rights, performance awards or restricted stock awardsamendment to any Tax Return (as defined in Section 3.1(j)), stock purchase or other employee benefit planclosing agreement with respect to Taxes, or settlement or compromise of any other increase in the compensation payable or to become payable to any officers or key employees of income Tax liability by the Company or any Subsidiaryits subsidiaries, except customary increases in compensation as would not be required to employees generally incurred be disclosed in the ordinary course of business consistent with past practiceCompany SEC Documents, (viii) any material change in investment policies, or (ix) any entering into, renewal, modification agreement or extension of, commitment (contingent or otherwise) to do any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companyforegoing.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure Schedule or as expressly contemplated by this Agreement or disclosed in any SEC Report filed Agreement, since December March 31, 1998 and prior 2007, no events have occurred which have had or would be reasonably expected to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and havinghave, individually or in the aggregate, a Company Material Adverse Effect with respect Effect. From March 31, 2007 to the Companydate of this Agreement, (iiii) any material change by the Company in its accounting methods, principles or practices, with respect to and the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than Subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, and (vii) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, there has been no: (via) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment of any dividend or other distribution in respect of any the capital stock of the Company, other than the declaration and payment by the Company or any redemption, purchase of regular quarterly cash dividends on the shares of Company Common Stock; (b) redemption or other acquisition by the Company of any of its securitiescapital stock; (c) stock split, reverse stock split, combination or reclassification of the shares of Company Common Stock; (viiid) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in the rate or establishment terms of compensation payable by the Company or any of the Company Subsidiaries to any of their respective directors, officers or employees whose annual base compensation exceeds $100,000, or grant or increase in the rate or terms of any 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 severance or other employee benefit plan, policy, agreement or arrangement with, for or in respect of any other increase in the compensation payable or to become payable to any of their respective directors, officers or key employees of the Company or any Subsidiarywhose annual base compensation exceeds $100,000, except customary in any such case for grants or increases (i) required pursuant to the terms of plans or agreements in compensation to employees generally incurred effect on the date of this Agreement, (ii) occurring in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Companybusiness, or (xiii) required by Law; (e) adoption or amendment (except as may be required by Law) of any Company Benefit Plan or any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any employee, director or former director or employee; (f) material change by the Company in accounting methods, principles or practices except as required by GAAP; (g) amendment of any material Company Tax Return or the making of any material Tax election; or (h) any entering intoagreement or commitment, renewalwhether in writing or otherwise, modification or extension of, to take any contract, arrangement or agreement with any other party having, individually or action described in the aggregate, a Material Adverse Effect with respect to the Companyclauses (a) through (g) above.

Absence of Certain Changes or Events. Since December March 31, 19981997, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or as disclosed in any the IHK SEC Report Reports filed since December 31, 1998 and prior to the date of this Agreement, the Company IHK and the IHK Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998such date, there has not been (ia) any IHK Material Adverse Effect with respect to the CompanyEffect, (iib) any change by IHK in its accounting methods, principles or practices, except as may be required by U.S. GAAP, (c) any damage, destruction or loss (whether or not covered by insurance) with respect to any property properties or asset assets of the Company IHK or any IHK Subsidiary and havingthat, individually or in the aggregate, a would result in an IHK Material Adverse Effect with respect to the CompanyEffect, (iiid) any material change by declaration, setting aside or payment of any dividend or distribution in respect of shares of IHK Common Stock or any redemption, purchase or other acquisition of any of its securities other than the Company in its accounting methodspreviously declared regular quarterly dividend of $0.03 per share of IHK Common Stock, principles or practices, with respect to the Company (ive) any revaluation by IHK and the Company IHK Subsidiaries of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vif) any entry by the Company IHK or any IHK Subsidiary into any commitment or transaction material to the Company IHK and the IHK Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment except in the ordinary course 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 securitiesbusiness consistent with past practice, (viiig) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company IHK or any IHK Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.,

Absence of Certain Changes or Events. Since December 31, 19982000, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31of the ancillary agreements to which it is a party, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have B has conducted their businesses its business only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998such date, there has not been (ia) any B Material Adverse Effect with respect or any event or circumstance reasonably likely to the Companyresult in a B Material Adverse Effect, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iiib) any material change by the Company B in its accounting (tax, financial or otherwise) methods, principles or practices, with respect to the Company (ivc) any revaluation by the Company B of any material asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vid) any entry by the Company or any Subsidiary B into any commitment or transaction material to B or any amendment or modification to, or waiver or relinquishment of any rights under, any B Permit or B Material Contract, other than after the Company date hereof in the regular, usual and the Subsidiaries taken as a wholeordinary course of business, (viie) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company B Shares or any redemption, purchase or other acquisition of any of its securities, (viiif) other than as set forth any split, combination or reclassification of any of the capital stock of B or any issuance, or the authorization of any issuance, of any securities in any contracts respect of, in lieu of or in substitution for shares of capital stock of B or (as in effect on the date hereofg) referred to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), stock purchase or other employee benefit planplan relating to any employee of B, or any other increase in the compensation payable or to become payable to any officers or key employees of the Company or any SubsidiaryB, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) as required by any entering into, renewal, modification Law or extension of, any material contract, arrangement existing agreement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companyplan.

Absence of Certain Changes or Events. Since December 31June 30, 19981997, except as contemplated by this Agreement, as set forth in Section 3.08 3.1(i) of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any the SEC Report Reports filed since December 31, 1998 that date and prior up to the date of this Agreement, the Company and the Subsidiaries its subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998such date, there has not been (i) any Material Adverse Effect with respect to the Companycondition, (ii) any damage, destruction event or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and havingoccurrence which, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect with respect Effect, (ii) any termination or cancellation of, or any modification to, any agreement, arrangement or understanding which has had or would reasonably be expected to the Companyhave a Material Adverse Effect, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), its material assets other than in the ordinary course of business business, consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary of its subsidiaries into any commitment or transaction transactions material to the Company and the Subsidiaries taken as a wholeCompany, (viivi) any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of any capital stock the shares of the Company Common Stock or any redemption, purchase or other acquisition of any of its securities, (viiivii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), stock purchase or other employee benefit planplan or agreement or arrangement, 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 customary increases in compensation to employees generally incurred of its subsidiaries other than in the ordinary course of business consistent with past practice or as was required under employment, severance or termination agreements in effect as of June 30, 1997, (viii) any bonus paid to the employees of the Company or its subsidiaries other than in the ordinary course of business and consistent with past practice, (ix) any entering into, renewal, modification sale or extension of, transfer of any material contract, arrangement or agreement with any affiliate assets of the Company, Company or its subsidiaries other than in the ordinary course of business and consistent with past practice or (x) any entering intoloan, renewaladvance or capital contribution to or investment in any person in an aggregate amount in excess of $100,000 by the Company or any subsidiary (excluding any loan, modification advance or extension ofcapital contribution to, or investment in, the Company or any contract, arrangement or agreement with any other party having, individually or in wholly owned subsidiary and except for drawdowns by the aggregate, a Material Adverse Effect with respect to the CompanyCompany under its credit facility).

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any the SEC Report filed Documents, since December 31September 30, 1998 and prior to the date of this Agreement1996, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice andpractice, and there has not occurred any event, condition, circumstance, change or development (whether or not in the ordinary course of business) that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth on Schedule 3.11 hereto or as disclosed in any SEC Documents filed with the SEC and publicly available prior to November 1, 1997, since December 31September 30, 19981996, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (ivii) any revaluation by the Company of any asset (includingof its or any Subsidiary's material assets, without limitationincluding but not limited to, any writing down of the value of inventory or writing off of notes or accounts receivable), any Rights to Receive other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (viiii) any entry outside the ordinary course of business by the Company or any Subsidiary into any commitment commitments or transaction material transactions material, individually or in the aggregate, to the Company and the Subsidiaries taken as a whole, (viiiv) any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of any capital stock the shares of the Company or Common Stock or, any redemption, purchase or other acquisition of any of its securities, (viii) other than as set forth in semi-annual cash dividends of $.02 per share on outstanding Common Stock consistent with past practices, (v) any contracts grant or issuance of any Equity Securities of the Company or any Subsidiary; or (as in effect on the date hereofvi) referred to in Section 3.10, any increase in or in, establishment of or amendment of any Employment, Consulting or Severance Agreement, bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, including without limitation, limitation the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), stock purchase or other employee benefit planplan 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 Subsidiary, except customary for increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31, 1998, except (a) Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any the Seller SEC Report Reports filed prior to and including the date of this Agreement, since December 31September 30, 1998 and prior 2004 to the date of this Agreement, the Company Seller and the Seller Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, except as disclosed in the Seller SEC Reports filed prior to and including the date of this Agreement, since December 31September 30, 19982004 to the date of this Agreement, there has not been (i) any change in the financial condition, results of operations or business of Seller and any of the Seller Subsidiaries having a Material Adverse Effect with respect to on Seller and the CompanySeller Subsidiaries, taken as a whole, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property assets of Seller or asset any of the Company or any Subsidiary and having, individually or in the aggregate, Seller Subsidiaries having a Material Adverse Effect with respect to on Seller and the CompanySeller Subsidiaries, taken as a whole, (iii) any material change by the Company Seller in its accounting methods, principles or practices, with respect except for any change required by reason of a concurrent change to GAAP or Regulation S-X promulgated by the Company SEC, (iv) any revaluation by the Company Seller of any asset (including, without limitation, of its assets in any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practicematerial respect, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of any capital stock shares of the Company Seller Common Stock or any redemption, purchase or other acquisition of any of its securitiessecurities or any of the securities of any Seller Subsidiary, except pursuant to Seller repurchase rights arising upon an individual’s termination of service with Seller or any Seller Subsidiary, (vi) any increase in the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any executive officer, employee, or director from the amount thereof in effect as of January 1, 2004, grant of any severance or termination pay, the entry into of any contract to make or grant any severance or termination pay, or the payment of any bonus, except in the ordinary course and in a manner consistent with past practices or pursuant to agreements outstanding on such date, (vii) any strike, work stoppage or slow-down, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment execution of any bonuscollective bargaining agreement, 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 contract or other employee benefit planagreement or understanding, to which Seller is a party, with a labor union or organization, 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 customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension ofto the knowledge of Seller, any material contractunion organizing activities. (b) To Seller’s knowledge, arrangement no third party has used, without permission, the corporate name, the trademarks, tradenames, service marks, logos, symbols or agreement similar intellectual property of Seller or any Seller Subsidiary in connection with the marketing, advertising, promotion or sale of such third party’s products or services. Neither Seller nor any affiliate of the Company, Seller Subsidiary is a party to any joint marketing or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement other affinity marketing program with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companythird party.

Absence of Certain Changes or Events. (a) Since December 31, 19982009, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this AgreementCompany, the Company Subsidiaries and the Subsidiaries CPS have conducted their respective businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any all material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than respects in the ordinary course of business consistent with past practice. (b) Since December 31, 2009, there has not been any Company Material Adverse Effect or any change, event, development, condition, occurrence or effect that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect. (c) There has not been any action taken by the Company, any Company Subsidiary or CPS from December 31, 2009 through the date of this Agreement to: (i) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the Company or another wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting or registration of its capital stock; (ii) reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or any other securities; (iii) make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (iv) make or change any material tax election or settle or compromise any material liability for Taxes; (v) write up, write down or write off the book value of any failure by assets, in the Company to revalue any asset aggregate, in excess of $500,000, except for depreciation and amortization in accordance with GAAP consistent with past practice, consistently applied; (vi) initiate, compromise or settle any entry by the Company litigation, proceeding or any Subsidiary into any commitment or transaction investigation that is material to the Company, CPS or the Company and the Subsidiaries taken as a whole, other than settlements or compromises of litigation (A) where the amount paid does not exceed $500,000 or (B) that do not involve equitable relief or admission of wrongdoing or misconduct; or (vii) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company except as required to comply with applicable Law or any redemption, purchase or other acquisition of any of its securities, (viii) other than as set forth in any contracts (Company Benefit Plan as in effect on the date hereofas of December 31, 2009, (A) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become benefits payable to any its directors, officers or key employees of the Company or any Subsidiaryemployees, except customary for increases in compensation to employees generally incurred salaries or wages in the ordinary course of business consistent with past practicepractices; (B) grant any material severance or termination pay which will become due and payable on or after the Effective Time; or (C) adopt, (ix) any entering enter into, renewalestablish, modification amend, modify or extension ofterminate any Company Benefit Plan, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or except to reflect changes in the aggregate, a Material Adverse Effect with respect to the Companyplan administration.

Absence of Certain Changes or Events. Since December 31, 1998, except as set forth in Section 3.08 From the date of the Disclosure Schedule or as contemplated by this Agreement or disclosed most recent audited financial statements included in any the Filed Company SEC Report filed since December 31, 1998 and prior Documents to the date of this Agreement, the Company and the Subsidiaries have has conducted their businesses its business only in the ordinary course course, and in a manner consistent with past practice and, since December 31, 1998, during such period there has not been been: (i) any Material Adverse Effect with respect to the Companyevent, (ii) any damagechange, destruction effect, development, condition or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and havingoccurrence that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect Effect; (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Company, (iii) any material change Company Common Stock or any repurchase for value by the Company in its accounting methodsof any Company Common Stock, principles or practices, other than quarterly cash dividends with respect to the Company Common Stock of (A) $0.18 per share with respect to the first quarter of 2005 and (B) $0.09 per share with respect to the second and third quarters of 2005, in each case with usual declaration, record and payment dates; (iii) any split, combination or reclassification of any Company Common 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 Company Common Stock; (iv) (A) any revaluation granting by the Company or any Company Subsidiary to any current or former director, officer, employee or independent contractor of the Company or any Company Subsidiary (each, a "Participant") of any asset loan or any increase in any type of compensation, benefits, perquisites or any bonus or award, except for grants of normal cash bonus opportunities and normal increases of cash compensation (includingincluding compensation in connection with new hires), without limitation, any writing down in each case in the ordinary course of business consistent with past practice or as was required under employment agreements in effect as of the value date of inventory or writing off the most recent audited financial statements included in the Filed Company SEC Documents, (B) any payment of notes or accounts receivable)any bonus to any Participant, other than except for bonuses paid in the ordinary course of business consistent with past practice, (vC) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry granting by the Company or any Company Subsidiary into to any commitment Participant of any severance, change in control, termination or transaction material similar compensation, pay or benefits or increases therein, or of the right to receive any severance, change in control, termination or similar compensation, pay or benefits or increases therein, except (x) 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 Company and the Subsidiaries taken as a wholeSEC Documents, (viiy) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or ordinary course of business consistent with past practice in connection with new hires to become payable to any officers or key replace departed employees and (z) in the ordinary course of the Company or any Subsidiary, except customary increases business consistent with past practice in compensation to employees generally incurred connection with promotions made in the ordinary course of business consistent with past practice, or (ixD) any entering entry by the Company or any Company Subsidiary into, renewal, modification or extension any amendment of, any material contract, arrangement or agreement with any affiliate of the Company, or Company Benefit Agreement; (xv) any entering intodamage, renewaldestruction or loss, modification whether or extension ofnot covered by insurance, any contract, arrangement or agreement with any other party havingthat, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect Effect; (vi) any change in accounting methods, principles or practices by the Company or any Company Subsidiary, except for any change which is not material or which is required by a change in GAAP or applicable Law; (vii) any material elections with respect to Taxes by the CompanyCompany or any Company Subsidiary or settlement or compromise by the Company or any Company Subsidiary of any material Tax liability or refund; or (viii) any revaluation by the Company or any Company Subsidiary of any of the assets of the Company or any Company Subsidiary, except insofar as may have been required by applicable Law or that would not reasonably be expected to have a Company Material Adverse Effect.

Absence of Certain Changes or Events. Since December 31, 19982002, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to as set forth on Schedule 3.08 of the date of this AgreementCompany Disclosure Schedule, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice andpractice, since December 31, 1998, and there has not been (ia) any event or events having a Company Material Adverse Effect with respect to the CompanyEffect, (iib) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (ivc) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vid) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, except in the ordinary course of business and consistent with past practice, (viie) 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, (viiif) any material damage, destruction or loss to property, whether or not covered by insurance, (g) any settlement or compromise of any material litigation, action or claim, or (h) other than as set forth in any pursuant to the contracts (as in effect on the date hereof) and Plans expressly referred to in Section 3.103.10 hereof, any increase in in, establishment or establishment material amendment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), 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 customary for salary increases in compensation to employees generally incurred and benefit accruals in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31September 30, 1998, ------------------------------------ 1996 except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or as disclosed in any Company SEC Report filed since December 31September 30, 1998 and prior to the date of this Agreement1996, the Company and the its Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998such date, there has not been (ia) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (ivb) any revaluation by the Company of any material asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vic) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the its Subsidiaries taken as a whole, except in the ordinary course of business and consistent with past practice, (viid) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company Shares or any redemption, purchase or other acquisition of any of its securities, (viiie) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in the benefits under, or the establishment of or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), 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 SubsidiarySubsidiary except as set forth in Section 3.8 of the Company Disclosure Schedule, except customary increases in compensation to employees generally incurred in (f) any entry by the Company or any Subsidiary into any employment, consulting, termination or indemnification agreement with any officer or key employee of the Company or any Subsidiary or entry into any such agreement with any other person outside the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate except as set forth in Section 3.8 of the CompanyCompany Disclosure Schedule, or (xg) any entering intoagreement by the Company or any Subsidiary to take any of the actions described in this Section 3.8 except as expressly contemplated by this Agreement. Between September 30, renewal1996, modification and the execution and delivery of this Agreement, neither the Company nor any Subsidiary has taken, or extension ofagreed to take, any contract, arrangement or agreement with any other party having, individually or in action that would constitute a breach of Section 5.1 if taken after the aggregate, a Material Adverse Effect with respect to the Companydate of this Agreement.

Absence of Certain Changes or Events. Since Except for (i) matters set forth on SCHEDULE 2.8, (ii) matters disclosed in the Annual Financial Statements or (iii) as contemplated by this Agreement, the Company has not, since December 31, 19981997, except as otherwise specified herein: (a) undergone any change in its condition (financial or otherwise), properties, assets, liabilities, business or operations, except for changes in the ordinary course of business which have not either individually or in the aggregate had a Material Adverse Effect; (b) except as set forth on SCHEDULE 2.8, changed any of its methods of accounting or accounting practices or classifications of assets or liabilities, or failed to maintain its books of account in Section 3.08 the usual, regular and ordinary manner in accordance with GAAP unless required by regulation or GAAP; (c) modified the material terms of, or canceled or terminated, any Material Contract (as defined below) other than in the ordinary course of business; (d) terminated, discharged or received any written notice regarding the Disclosure Schedule resignation, discharge or termination of any officer other than in the ordinary course of business or as contemplated by this Agreement or disclosed in any SEC Report filed Agreement; (e) since December 31, 1998 and prior to 1995, established or adopted any Benefit Plan (as defined below), or increased the date amount of this Agreementthe wages, the Company and the Subsidiaries have conducted their businesses only bonus, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees, except in any case in the ordinary course and of business in a manner consistent accordance with past practice and, in the case of the senior management employees and Shareholders (listed on SCHEDULE 2.8(e)), in an amount not exceeding 3% in any one case or a payment of bonuses in an aggregate amount of $25,000; (f) since December 31, 19981995, there has not been declared, set aside, made or paid any dividend or other distribution in respect of its capital stock or purchased or redeemed, directly or indirectly, any shares of its capital stock, or split up, combined, reclassified, redeemed, repurchased or otherwise reacquired any of its capital stock other than distributions to shareholders to pay income taxes and charged against their respective Accumulated Adjustments Account, if applicable; (g) since December 31, 1995, issued or sold any shares of its capital stock of any class or any subscriptions, options, warrants, calls or other rights to purchase directly or indirectly any such shares or any securities directly or indirectly convertible into or exchangeable for such shares or made any other change in its capital structure; (h) since December 31, 1995, except for borrowings under its normal line of credit and Debt described in SCHEDULE 2.8(h), incurred any direct or contingent liability for borrowed money or guaranteed the monetary obligations of any other person or entity other than indebtedness to be included in the Debt to be discharged at Closing, or made any monetary investment in, advance to or loan to any person or entity other than in the ordinary course of business; (i) mortgaged, pledged or subjected to any Material Adverse Effect material lien, lease, security interest or other charge or encumbrance any of its properties or assets, tangible or intangible, except those securing Debt to be discharged at Closing and except for Permitted Liens (as defined below); (j) made any material change in its practices, operations or policies with respect to the Companymethod for selling goods or services, or other method for accounting for sales, the conduct of accounts receivable collection or accounts payable payment activities or the maintenance of inventory levels other than changes in the ordinary course of business; (iik) since December 31, 1995, merged or consolidated with or into any other entity or initiated or participated in negotiations with any person or entity with respect to any of the foregoing; (l) implemented or adopted any change in its tax methods, principles or elections; (m) since December 31, 1995, acquired or disposed of any material assets or properties or made any capital improvement other than in the ordinary course of business; or (n) suffered any damage, destruction or loss (whether or not covered by insurance) with respect which has had or could reasonably be expected to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, have a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31Except as disclosed in the SEC Documents (including exhibits thereto) filed since January 1, 19981998 and publicly available prior to the date hereof (the "Filed SEC Documents"), and except as set forth in Section 3.08 of the Disclosure on Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed 4.8, since December 31, 1998 and prior to the date of this Agreementthe most recent audited financial statements included in the Filed SEC Documents, the Company and the its Subsidiaries have conducted their respective businesses only in the ordinary course and in a manner consistent with past practice andprior practice, since December 31, 1998, and there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iiia) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practiceadverse change, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viib) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (c) any split, combination or reclassification of any of 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 capital stock, (d) (i) any capital stock of granting by the Company or any redemption, purchase or other acquisition Subsidiary to any officer of any the Company of its securities, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practicepractice 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, (ixii) any entering intogranting by the Company or any Subsidiary to any officer, renewalemployee, modification director or extension ofconsultant of any increase in severance or termination pay, except as was required under any material contractemployment, arrangement severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents or (iii) any entry by the Company or any Subsidiary into any employment, severance or termination agreement with any affiliate of the Companyofficer, employee, director or consultant, (xe) any entering intodamage, renewaldestruction or loss to property, modification whether or extension ofnot covered by insurance, any contractthat, arrangement individually or agreement with any other party havingin the aggregate, has not been cured and would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect with respect material adverse effect, (f) any change in accounting methods, principles or practices by the Company or any Subsidiary, (g) any delivery of a notice of non-renewal or any other failure to renew contracts or agreements to which the CompanyCompany or any Subsidiary is a party which are material, individually or in the aggregate, or (h) any loss of any employee who earned more than $75,000 in the most recent fiscal year (in salary, bonus and other cash compensation).

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any the SEC Report filed Documents, since December 31January 1, 1998 and prior to the date of this Agreement2000, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice andpractice, and there has not occurred any event, condition, circumstance, change or development (whether or not in the ordinary course of business) that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth on Schedule 3.10 hereto or as disclosed in any SEC Documents filed with the SEC and publicly available prior to January 1, 2000, since December 31January 1, 19982000, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (ivii) any revaluation by the Company of any asset (includingof its or any Subsidiary's material assets, without limitationincluding but not limited to, any writing down of the value of inventory or writing off of notes or accounts receivable), any Rights to Receive other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (viiii) any entry outside the ordinary course of business by the Company or any Subsidiary into any commitment commitments or transaction material transactions material, individually or in the aggregate, to the Company and the Subsidiaries taken as a whole, (viiiv) any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of any capital stock the shares of the Company or Common Stock or, any redemption, purchase or other acquisition of any of its securities, (viii) other than as set forth in semi-annual cash dividends of $.02 per share on outstanding Common Stock consistent with past practices, (v) any contracts grant or issuance of any Equity Securities of the Company or any Subsidiary; or (as in effect on the date hereofvi) referred to in Section 3.10, any increase in or in, establishment of or amendment of any Employment, Consulting or Severance Agreement, bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, including without limitation, limitation the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), stock purchase or other employee benefit planplan 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 Subsidiary, except customary for increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any the ------------------------------------ SEC Report Documents filed since December 31, 1998 and publicly available prior to the date of this Agreement (the "Filed SEC Documents") and except as disclosed in writing by Evergreen to the Company prior to the execution and delivery of the Agreement, or as it relates to the Viacom Transaction (as defined in Section 10.9) or as otherwise agreed to in writing after the date hereof by the Company and Evergreen, since the Subsidiaries date of the most recent audited financial statements included in the Filed SEC Documents, Evergreen and its subsidiaries have conducted their businesses business only in the ordinary course course, and in a manner consistent with past practice and, since December 31, 1998, there has not been (i) any change which could reasonably be expected to have an Evergreen Material Adverse Effect with respect to (including as a result of the Companyconsummation of the transactions contemplated by this Agreement), (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect of to any Of Evergreen's currently outstanding capital stock of the Company stock, (iii) any split, combination or any redemption, purchase or other acquisition reclassification of any of its securitiesoutstanding 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 outstanding capital stock, (viiiiv) (x) any granting by Evergreen or any of its subsidiaries to any director, officer or other than as set forth in employee or independent contractor of Evergreen or any contracts (as in effect on the date hereof) referred to in Section 3.10, of its subsidiaries of any increase in compensation or establishment acceleration of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiarybenefits, except customary increases in compensation to employees generally incurred 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 included in the Filed SEC Documents, (ixy) any entering intogranting by Evergreen or any of its subsidiaries to any director, renewalofficer or other employee or independent contractor of any increase in, modification or extension acceleration of benefits in respect of, severance or termination pay, or pay in connection with any material contractchange of control of Evergreen, arrangement 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 Evergreen or any of its subsidiaries into any employment, severance, change of control, or termination or similar agreement with any affiliate of the Companydirector, executive officer or other employee or independent contractor, or (xv) any entering intochange in accounting methods, renewalprinciples or practices by Evergreen or any of its subsidiaries materially affecting its assets, modification liability or extension ofbusiness, any contract, arrangement or agreement with any other party having, individually or except insofar as may have been required by a change in the aggregate, a Material Adverse Effect with respect to the Companygenerally accepted accounting principles.

Absence of Certain Changes or Events. Since December 31, 19982003, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to as set forth on Schedule 3.09 of the date of this AgreementCompany Disclosure Schedule, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice andpractice, since December 31, 1998, and there has not been (ia) any event or events having a Company Material Adverse Effect with respect to the CompanyEffect, (iib) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (ivc) any revaluation by the Company of any material asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vid) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, except in the ordinary course of business and consistent with past practice, (viie) 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, (viiif) any material damage, destruction or loss to material property, whether or not covered by insurance, (g) any settlement or compromise of any material litigation, action or claim, or (h) other than as set forth in any pursuant to the contracts (as in effect on the date hereof) and Plans expressly referred to in Section 3.103.11 hereof, any increase in in, establishment or establishment material amendment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), 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 customary for salary increases in compensation to employees generally incurred and benefit accruals in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. (a) Since December 31, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 19982023, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction no change or loss (whether development or not covered by insurance) with respect to any property combination of changes or asset of the Company or any Subsidiary and havingdevelopments which, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect on Exxxx. (b) Except as set forth in Exxxx Disclosure Schedule 3.10(b), since December 31, 2023, each of Evans and its Subsidiaries has carried on its business only in the ordinary and usual course of business consistent with respect its past practices (except for actions in connection with the transactions contemplated by this Agreement). (c) Except as set forth in Exxxx Disclosure Schedule 3.10(c), since December 31, 2023, none of Exxxx or any of its Subsidiaries has (i) except in the ordinary course of business consistent with past practice (A), increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any current or former employee, director or other individual service provider from the Companyamount thereof in effect as of December 31, 2023, (iiiB) except as disclosed in the Exxxx SEC Documents, granted any material severance, termination pay, bonus, retention bonus, or change by the Company in its accounting methodscontrol benefits, principles entered into any contract to make or practicesgrant any severance, with respect to the Company termination pay, bonus, retention bonus, or change in control benefits, or paid any bonus or retention bonus, or (ivC) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than except in the ordinary course of business consistent with past practice, granted any Exxxx Options, Exxxx Restricted Stock or Exxxx RSUs, (ii) except as disclosed in the Exxxx SEC Documents, declared, set aside or paid any dividend or other distribution (whether in cash, stock or property) with respect to any of Exxxx’x capital stock, (iii) effected or authorized any split, combination or reclassification of any of Exxxx’x capital stock or any issuance or issued any other securities in respect of, in lieu of or in substitution for shares of Exxxx’x capital stock, (iv) except as disclosed in the Exxxx SEC Documents, changed any accounting methods (or underlying assumptions), principles or practices of Exxxx affecting its assets, liabilities or business, including without limitation, any reserving, renewal or residual method, practice or policy, (v) made any failure tax election by the Company to revalue Exxxx or any asset in accordance with GAAP consistent with past practicesettlement or compromise of any income tax liability by Exxxx, (vi) made any entry by the Company material change in Exxxx’x policies and procedures in connection with underwriting standards, origination, purchase and sale procedures or hedging activities with respect to any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a wholeLoans, (vii) suffered any declarationstrike, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any redemptionwork stoppage, purchase slow-down, or other acquisition of any of its securitieslabor disturbance, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred been a party to in Section 3.10a collective bargaining agreement, any increase in or establishment of any 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 contract or other employee benefit plan, agreement or any other increase in the compensation payable understanding with a labor union or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practiceorganization, (ix) had any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, union organizing activities or (x) made any entering into, renewal, modification agreement or extension of, commitment (contingent or otherwise) to do any contract, arrangement or agreement with any other party having, individually or in of the aggregate, a Material Adverse Effect with respect to the Companyforegoing.

Absence of Certain Changes or Events. Since December 31, 1998, Except as described in Section 3.9 of the Company Disclosure Letter and except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any Company SEC Report filed since December 31, 1998 and prior to the date of this Agreementhereof, since March 31, 1999, the Company and the Company Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31such date, 1998, except as permitted by Section 5.1 of this Agreement with respect to clauses (c-i) below there has not been been: (ia) any Material Adverse Effect with respect to on the Company, ; (iib) any damage, destruction or other casualty loss (with respect to any asset or property owned, leased or otherwise used by the Company or any Company Subsidiaries, whether or not covered by insurance) with respect to any property , which damage, destruction or asset of the Company or any Subsidiary and havingloss, individually or in the aggregate, has resulted or could reasonably be expected to result in a Material Adverse Effect with respect to on the Company, ; (iiic) any material change by the Company in its or any Company Subsidiary's accounting methods, principles or practices, with respect to the Company except as required by GAAP or by applicable Law; (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viid) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company Shares or any redemption, purchase or other acquisition of any of its the Company's securities, ; (viiie) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in the compensation or benefits or establishment of any 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 other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, in each case except customary increases in compensation to employees generally incurred the ordinary course of business consistent with past practice or except as required by applicable Law; (i) any incurrence or assumption by the Company or any Company Subsidiary of any indebtedness for borrowed money or (ii) any guarantee, endorsement or other incurrence or assumption material liability (whether directly, contingently or otherwise) by the Company or any Company Subsidiary for the obligations of any other person (other than any wholly owned Company Subsidiary), in each case other than in the ordinary course of business consistent with past practice, ; (ixg) any entering into, renewal, modification creation or extension of, assumption by the Company or any Company Subsidiary of any Lien on any material contract, arrangement or agreement with any affiliate asset of the CompanyCompany or any Company Subsidiary, other than in the ordinary course of business, consistent with past practice; (h) any making of any loan, advance or capital contribution to or investment in any person by the Company or any Company Subsidiary, other than in the ordinary course of business, consistent with past practice; or (i) (i) any Contract entered into by the Company or any Company Subsidiary relating to any material acquisition or disposition of any assets or business, or (xii) any entering intomodification, renewalamendment, modification assignment or extension of, termination of or relinquishment by the Company or any contract, arrangement or agreement with Company Subsidiary of any rights under any other party havingContract (including any insurance policy naming it as a beneficiary or a loss payable payee) that does or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to on the Company, other than transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practice or those contemplated by this Agreement.

Absence of Certain Changes or Events. (a) Since December 31, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 19982021, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction no change or loss (whether development or not covered by insurance) with respect to any property combination of changes or asset of the Company or any Subsidiary and havingdevelopments which, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect on Salisbury. (b) Except as set forth in Salisbury Disclosure Schedule 3.10(b), since December 31, 2021, each of Salisbury and its Subsidiaries has carried on its business only in the ordinary and usual course of business consistent with respect its past practices (except for actions in connection with the transactions contemplated by this Agreement). (c) Except as set forth in Salisbury Disclosure Schedule 3.10(c), since December 31, 2021, none of Salisbury or any of its Subsidiaries has (i) except in the ordinary course of business consistent with past practice (A), increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any current or former employee, director or other individual service provider from the Companyamount thereof in effect as of December 31, 2021, (iiiB) except as disclosed in the Salisbury SEC Documents, granted any material severance, termination pay, bonus, retention bonus, or change by the Company in its accounting methodscontrol benefits, principles entered into any contract to make or practicesgrant any severance, with respect to the Company termination pay, bonus, retention bonus, or change in control benefits, or paid any bonus or retention bonus, or (ivC) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than except in the ordinary course of business consistent with past practice, granted any Salisbury Options, Salisbury Restricted Stock or Salisbury RSUs, (ii) except as disclosed in the Salisbury SEC Documents, declared, set aside or paid any dividend or other distribution (whether in cash, stock or property) with respect to any of Salisbury’s capital stock, (iii) effected or authorized any split, combination or reclassification of any of Salisbury’s capital stock or any issuance or issued any other securities in respect of, in lieu of or in substitution for shares of Salisbury’s capital stock, (iv) except as disclosed in the Salisbury SEC Documents, changed any accounting methods (or underlying assumptions), principles or practices of Salisbury affecting its assets, liabilities or business, including without limitation, any reserving, renewal or residual method, practice or policy, (v) made any failure tax election by the Company to revalue Xxxxxxxxx or any asset in accordance with GAAP consistent with past practicesettlement or compromise of any income tax liability by Xxxxxxxxx, (vi) made any entry by the Company material change in Salisbury’s policies and procedures in connection with underwriting standards, origination, purchase and sale procedures or hedging activities with respect to any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a wholeLoans, (vii) suffered any declarationstrike, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any redemptionwork stoppage, purchase slow-down, or other acquisition of any of its securitieslabor disturbance, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred been a party to in Section 3.10a collective bargaining agreement, any increase in or establishment of any 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 contract or other employee benefit plan, agreement or any other increase in the compensation payable understanding with a labor union or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practiceorganization, (ix) had any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, union organizing activities or (x) made any entering into, renewal, modification agreement or extension of, commitment (contingent or otherwise) to do any contract, arrangement or agreement with any other party having, individually or in of the aggregate, a Material Adverse Effect with respect to the Companyforegoing.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report the Company Reports filed since December 31, 1998 and prior to the date of hereof or in Company Disclosure Schedule 3.10, or as otherwise expressly permitted or expressly contemplated by this Agreement, since September 30, 2013 (the “Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998Balance Sheet Date”), there has not been (i) any Material Adverse Effect with respect to change or development in the Companybusiness, operations, assets, liabilities, condition (ii) any damagefinancial or otherwise), destruction results of operations, cash flows or loss (whether or not covered by insurance) with respect to any property or asset properties of the Company or any Subsidiary and havingof its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to the Company, and to the Knowledge of Company, no fact or condition exists which is reasonably likely to cause a Material Adverse Effect with respect to Company in the future, (iiiii) any material change by the Company or any of its Subsidiaries in its accounting methods, principles or practices, with respect to the Company other than changes required by applicable law or GAAP or regulatory accounting as concurred in by Company’s independent accountants, (iviii) any revaluation entry by the Company or any of its Subsidiaries into any asset contract or commitment of (including, without limitation, any writing down A) more than $100,000 or (B) $50,000 per annum with a term of the value of inventory or writing off of notes or accounts receivable)more than one year, other than loans and loan commitments in the ordinary course of business consistent with past practicebusiness, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viiiv) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any of its Subsidiaries or any redemption, purchase or other acquisition of any of its securities, (viii) other than as set forth in any contracts the ordinary course of business consistent with past practice, (as in effect on the date hereofv) referred to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors, officers or key employees of the Company or any Subsidiaryof its Subsidiaries, except customary increases or any grant of severance or termination pay, or any contract or arrangement entered into to make or grant any severance or termination pay, any payment of any bonus, or the taking of any action not in the ordinary course of business with respect to the compensation or employment of directors, officers or employees of Company or any of its Subsidiaries, (vi) any material election made by Company or any of its Subsidiaries for federal or state income tax purposes, (vii) any material change in the credit policies or procedures of Company or any of its Subsidiaries, the effect of which was or is to employees generally incurred make any such policy or procedure less restrictive, (viii) other than loans and loan commitments and investment securities in the ordinary course of business and consistent with past practice, any material acquisition or disposition of any assets or properties, or any contract for any such acquisition or disposition entered into, or (ix) any material lease of real or personal property entered into, other than in connection with foreclosed property or in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 316.11.1. Except as expressly contemplated or permitted by this Agreement, 1998, except as set forth and other than the reasonable and customary fees and expenses incurred in Section 3.08 of connection with the Disclosure Schedule or as transactions contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, since January 29, 2000, the Company business of Gart and the its Subsidiaries have has been conducted their businesses only in all material respects in the ordinary course and in a manner of business consistent with past practice and, since December 31, 1998, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect neither Gart nor any of its Subsidiaries has engaged in any transaction or series of related transactions material to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory Gart or writing off of notes or accounts receivable), its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practicepractices, and there has not been any event, occurrence or development that, individually or in the aggregate, constitutes or would constitute a Material Adverse Effect on the Company. 6.11.2. Without limiting the generality of the foregoing Section 6.11.1, since January 29, 2000, except as set forth in Section 6.11.2 of the Gart Disclosure Schedule, there has not been: (va) any failure by damage, destruction or loss to any of the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company assets or properties of Gart or any Subsidiary into any commitment of its Subsidiaries that, individually or transaction material to in the Company and the Subsidiaries taken as aggregate, constitutes a whole, Material Adverse Effect on Gart; (viib) any declaration, setting aside or payment of any dividend or distribution (whether in cash, capital stock or property) or capital return in respect of any shares of Gart's capital stock of the Company or any redemption, purchase or other acquisition of by Gart or any of its securities, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment Subsidiaries of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting shares of stock options, stock appreciation rights, performance awards or restricted stock awards), stock purchase or other employee benefit planGart's capital stock, or any repurchase, redemption or other increase in the compensation payable purchase by Gart or any of its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, Gart or any of its Subsidiaries, or any amendment of any material term of any outstanding security of Gart or any of its Subsidiaries; (c) any sale, assignment, transfer, lease or other disposition, or agreement to become payable to sell, assign, transfer, lease or otherwise dispose of, any officers or key employees of the Company assets of Gart or any Subsidiary, except customary increases in compensation to employees generally incurred of its Subsidiaries taken as a whole other than in the ordinary course of business consistent with past practicepractices; (d) any acquisition (by merger, consolidation, or acquisition of stock or assets) by Gart or any of its Subsidiaries of any corporation, partnership or other business organization or division thereof or any equity interest therein for consideration; (e) any (i) incurrence of, (ixii) guarantee with respect to, or (iii) provision of credit support for, any indebtedness by Gart or any of its Subsidiaries other than pursuant to (A) the Gart Credit Facility in the ordinary course of business or (B) lease financings for equipment used in the operation of the businesses of Gart or any of its Subsidiaries in the ordinary course of business; or any creation or assumption by Gart or any of its Subsidiaries of any material Lien, other than any Permitted Lien, on any material asset; (f) any material change in any method of accounting or accounting practice (whether for financial accounting or Tax purposes) used by Gart or any of its Subsidiaries; (g) any revaluing in any material respect of any of the assets of Gart or any of its Subsidiaries on the Gart Financials, including, without limitation, writing down the value of any assets or inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices; (h) any loan, advance or capital contribution made by Gart or any of its Subsidiaries to, or investment in, any Person other than loans, advances or capital contributions, or investments of Gart made in the ordinary course of business consistent with past practices; (i) any waiver, direct or indirect, by Gart or any of its Subsidiaries of (i) any right or rights of material value or (ii) any payment of any material debt, Liability or other obligation owed to Gart or any of its Subsidiaries, except for non-material waivers and payments made in the ordinary course of business consistent with past practices; (j) any change in or amendment to Gart's or any of its Subsidiaries' certificate of incorporation, by-laws or other organizational documents; (k) any payment, loan or advance of any amount to or in respect of, or the sale, transfer or lease of any properties or assets (whether real, personal or mixed, tangible or intangible) to, or entering intointo of any agreement, renewal, modification arrangement or extension transaction with or on behalf of, any material contractofficer, arrangement or agreement with any affiliate of the Companydirector, or employee of Gart, any of its Subsidiaries, or any Affiliate of any of them, or any business or entity in which Gart, any Subsidiary or any Affiliate of any of them, or relative of any such Person, has any material, direct or indirect, interest, except for (xi) directors' fees, (ii) compensation to the officers and employees of Gart (including benefits received by such officers and employees as a result of their participation in Gart Plans) in the ordinary course of business consistent with past practices, and (iii) advancement or reimbursement of expenses in the ordinary course of business consistent with past practices; (l) any entering into, renewal, material modification or extension change in any Gart Insurance Policy that would result in a diminishment of coverage under such Gart Insurance Policy; (m) any acquisition of a fee simple interest or a leasehold or subleasehold interest in, or any sale, assignment, disposition, transfer, pledge, mortgage or lease of, any contractreal property owned or leased by Gart or any of its Subsidiaries; (n) any issuance, arrangement sale or agreement disposition of any capital stock or other equity interest in Gart, except upon the valid exercise of options in accordance with the terms thereof, or any issuance or grant of any options, warrants or other rights to purchase any such capital stock or equity interest, or any securities convertible into or exchangeable for such capital stock or equity interest, or any other party having, individually or change in the aggregateissued and outstanding capitalization of Gart; (o) any amendment, a Material Adverse Effect with respect alteration or modification in the terms of any currently outstanding options, warrants or other rights to purchase any capital stock or equity interest in Gart or any securities convertible into or exchangeable for such capital stock or equity interest, including, without limitation, any reduction in the exercise or conversion price of any such rights or securities, any change to the Companyvesting or acceleration terms of any such rights or securities, or any change to terms relating to the grant of any such rights or securities; (p) any closure, shut down or other elimination of any of Gart's stores or offices or any material change in the basic character of its business, properties or assets, other than any store closures effected or proposed to be effected as set forth in Section 6.11.2 of the Gart Disclosure Schedule; (q) any action that, if it had been taken after the date hereof, would have required the consent of the Company under Section 7.1; and (r) any agreement to take any actions specified in this Section 6.11.2, except for this Agreement.

Absence of Certain Changes or Events. Since December 31, 1998, except (a) Except as may be set forth in Section 3.08 4.9(a) of the Company Disclosure Schedule Schedule, or as contemplated by this Agreement or disclosed in the 2007 Audited Financial Statements or the June 30 Unaudited Financial Statements (together the “Financial Statements”) or any Company Report (as defined in Section 4.5) filed with the SEC Report filed since December 31, 1998 and prior to the date of this Agreement, since December 31, 2007, neither the Company nor any Subsidiary of the Company, as applicable, had any liabilities, obligations or loss contingencies of any nature (whether absolute, accrued, contingent or otherwise) of a type required to be reflected in such Financial Statements or the footnotes thereto or any Company Report which are not fully reflected or reserved against therein or fully disclosed in a footnote thereto, except for liabilities, obligations and loss contingencies which are not material individually or in the Subsidiaries have conducted their businesses only aggregate or which are incurred in the ordinary course and in a manner of business, consistent with past practice andand subject, in the case of any unaudited statements, to normal, recurring audit adjustments and the absence of footnotes. (b) Except as may be set forth in Section 4.9(b) of the Company Disclosure Schedule or as disclosed in the Financial Statements or any Company Report filed with the SEC prior to the date of this Agreement, since December 31, 19982007 the Company and its Subsidiaries have carried on their respective businesses in the ordinary course consistent with their past practices. (c) Except as may be set forth in Section 4.9(c) of the Company Disclosure Schedule, there since December 31, 2007 neither the Company nor any of its Subsidiaries has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property executive officer or asset director, increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable from the amount thereof in effect as of the Company December 31, 2007 (other than increases in wages or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect salaries with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivablesuch individual equaling less than 10%), other than granted any severance or termination pay, entered into any contract to make or grant any severance or termination pay, or paid any bonus (except for bonus payments and severance or termination payments made in the ordinary course of business consistent with past practicepractices), (vii) suffered any failure by the Company to revalue any asset in accordance with GAAP consistent with past practicestrike, work stoppage, slowdown, or other labor disturbance, (viiii) any entry by the Company or any Subsidiary into any commitment or transaction material been a party to the Company and the Subsidiaries taken as a wholecollective bargaining agreement, (vii) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any redemption, purchase contract or other acquisition of any of its securities, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in agreement or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards understanding with a labor union or restricted stock awards), 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 customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Companyorganization, or (xiv) had any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companyunion organizing activities.

Absence of Certain Changes or Events. Since December 31Except as disclosed in the Company SEC Documents filed with the SEC prior to the date hereof or in SCHEDULE 3.1.6 to the Company Disclosure Letter, 1998, except as set forth in Section 3.08 since the date of the Disclosure Schedule or as contemplated by this Agreement or disclosed most recent financial statements included in any the Company SEC Report filed since December 31, 1998 and prior Documents (the "Financial Statement Date") to the date of this Agreement, the Company and the Company Subsidiaries have conducted their businesses business only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, there has not been (i) any change that would have a Material Adverse Effect (a "Material Adverse Change"), nor has there been any occurrence or circumstance that with respect the passage of time would reasonably be expected to the Companyresult in a Material Adverse Change, (ii) any damage, destruction or loss except for (whether or x) regular quarterly dividends not covered by insurancein excess of $.395 per share of Common Shares with customary record and payment dates and (y) with respect to any property or asset the payment of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect preferred share purchase right dividend pursuant to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to Rights Agreement between the Company and BankBoston, N.A., dated May 23, 1997 (the Subsidiaries taken as a whole"Rights Agreement"), (vii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's beneficial interests, other than any dividend required to be paid pursuant to SECTION 2.2.4, (iii) 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 any or in substitution for, or giving the right to acquire by exchange or exercise, shares of its capital stock or any issuance of an ownership interest in, any Company Subsidiary except as permitted by SECTION 4.1 after the date hereof, (iv) any damage, destruction or loss, whether or not covered by insurance, that has or would have or is reasonably likely to have a Material Adverse Effect or (v) any change in accounting methods, principles or practices by the Company or any redemption, purchase or other acquisition of any of its securities, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases insofar as required by a change in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the CompanyGAAP.

Absence of Certain Changes or Events. Since December Except as set forth on Schedule 5.7 of the Disclosure Schedules, since August 31, 19982014, the Company has conducted its business only in the ordinary course consistent with past practice and there has been no Material Adverse Effect. Without limiting the foregoing, except as set forth in Section 3.08 on Schedule 5.7 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed Schedules, since December August 31, 1998 and prior to the date of this Agreement2014, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice andhas not: (a) purchased or redeemed any of its securities (including shares of Common Stock), since December 31or granted or issued any option, 1998warrant or other right to purchase or acquire any such securities; (b) paid, there has not been (i) cancelled, incurred, waived, settled, discharged or satisfied any Material Adverse Effect with respect to the CompanyDebt, (ii) any damageclaim, destruction action, liability or loss other obligation (whether absolute, accrued, contingent or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivableotherwise), other than except in the ordinary course of business consistent with past practice, ; (vc) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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 encumbered any of its securitiesproperties or assets, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in tangible or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiaryintangible, except customary increases in compensation to employees generally for Encumbrances incurred in the ordinary course of business consistent with past practice; (d) granted any increase in the salaries or other compensation payable or to become payable to, or any advance or loan to, the Stockholders or any officer, director or employee of the Company (ixother than normal increases for employees other than officers not in excess of five percent (5%) made in the ordinary course of business and consistent with past practice); (e) entered into (or amended) any entering intoemployment, renewalseverance or similar agreement with any Stockholder, modification director, officer or extension employee or hired any new employee (other than to replace a terminated employee); (f) adopted or amended any Benefit Plan or any employment policy relating to vacation pay, sick pay, disability coverage, severance pay or otherwise relating to any employee of the Company or failed to make contributions to any Benefit Plan in accordance with past practice; (g) suffered any change or, to the knowledge of the Stockholders or the Company, received any threat of any change in any of its relations with, or any loss or, to the knowledge of the Stockholders or the Company, threat of loss of, any of the suppliers, clients, distributors, customers or employees that are material contract, arrangement or agreement with any affiliate to the business of the Company, including any threat made on or prior to the Closing Date of any loss or change which may result from the transactions contemplated by this Agreement; (xh) disposed of or failed to keep in effect any entering intorights in, renewalto or for the use of any franchise, modification license, permit or extension ofcertificate material to the business of the Company; (i) changed any method of keeping of their respective books of account or accounting practices; (j) disposed of or failed to keep in effect any rights in, to or for the use of any contractof the Intellectual Property Rights material to the business of the Company; (k) sold, transferred or otherwise disposed of any assets, properties or rights of any of the business of the Company, except inventory sold in the ordinary course of business consistent with past practice; (l) entered into any transaction, agreement or arrangement or agreement with any Stockholder, director, officer, employee or other party having, individually Affiliate of the Company or any “associates” (as defined in the aggregaterules and regulations of the Securities and Exchange Commission) of the Company other than the payment of salaries to employees in the ordinary course of business; (m) changed or modified in any manner its existing capital expenditure policies, a Material Adverse Effect procedures and practices, including the deferral of any capital expenditures contemplated by the Company’s 2014 budget or operating plans; (n) changed or modified in any manner its existing credit, collection, and payment policies, procedures, and practices with respect to accounts receivable and accounts payable, respectively, including acceleration of collections of receivables, failure to make or delay in making collections of receivables (whether or not past due), acceleration of payment of payables or failure to pay or delay in payment of payables; (o) incurred any material damage, destruction, theft, loss or business interruption; (p) made any declaration, payment or setting aside for payment of any dividend or other distribution (whether in cash, equity or property) with respect to any securities of the Company; (q) made any change in its Tax elections or accounting methods, received a ruling, entered into any closing agreement, settlement or compromise of any claim or assessment, in each case, in respect of Taxes; (r) waived or released any material right or claim of the Company or incurred any modifications, amendments or terminations of any Contracts which are in the aggregate materially adverse to the Company; or (s) agreed to do any of (a) through (r) above.

Absence of Certain Changes or Events. Since December 31Except as disclosed in the Company Reports, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed as set forth on Schedule 4.1(g) of the Company Disclosure Schedules, since December 31September 30, 1998 and prior to the date of this Agreement2005, the Company and the Subsidiaries have has conducted their its businesses only in the ordinary course and in a manner consistent with past practice andpractice, since December 31, 1998, and there has not been been: (i) any Material Adverse Effect with respect event that has had, or could reasonably be expected to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and havinghave, individually or in the aggregate, a Company Material Adverse Effect with respect to the Company, Effect; (iiiii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company practices except for any such change required by reason of a concurrent change in U.S. GAAP; (iviii) any revaluation by the Company of any material asset (including, without limitation, including any writing writing-down of the value of inventory or writing writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, ; (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viiiv) 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 by the Company or any of its Subsidiaries of any of its securities; (v) any amendment of any material term of any outstanding security of the Company or any of its Subsidiaries; (vi) any settlement or compromise of any material litigation, action or claim; (viiivii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in establishment or establishment material amendment of any 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)option, stock purchase or other employee benefit plan, plan or any other material increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiaryof its Subsidiaries, except customary for salary increases and benefit accruals pursuant to the Company Compensation and Benefit Plans in compensation to employees generally incurred the ordinary course of business; (viii) 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; (ix) any creation or other incurrence by the Company or any of its Subsidiaries of any Lien on any material asset other than in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or ; (x) any entering intomaking of any material loan, renewaladvance or capital contributions to or investment in any Person other than loans, modification advances or extension ofcapital contributions to or investments in its wholly-owned Subsidiaries in the ordinary course of business consistent with past practice; or (xi) any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or assets of the Company or any contractof its Subsidiaries that has had, arrangement or agreement with any other party havingcould reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect with respect to the CompanyEffect.

Absence of Certain Changes or Events. Since December 31, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this AgreementLatest Balance Sheet Date, the Surviving Company and the Subsidiaries have has conducted their businesses its business only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, and there has not been been: (i) any Material Adverse Effect with respect to the Company, (iia) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset material assets of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Surviving Company, ; (iiib) any material change by the Surviving Company in its accounting methods, principles or practices, with respect to the Company ; (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viic) any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of any shares of the capital stock of the Surviving Company or any redemption, purchase or other acquisition by the Surviving Company of any of its securities, ; (viiid) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in the benefits under, or the establishment of or amendment of, any 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 sharing or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors, officers or key employees of the Company or any SubsidiarySurviving Company, except customary for annual bonuses or merit increases in salaries or wages in the ordinary course of business and consistent with past practice; (e) any payment or other transfer of assets by the Surviving Company, other than compensation payments in the ordinary course of business and consistent with past practice; (f) any revaluation by the Surviving Company of any of its assets, including the writing down or off of notes or accounts receivable, other than in the ordinary course of business and consistent with past practices; (g) any entry by the Surviving Company into any commitment or transaction material to employees generally the Surviving Company including, without limitation, incurring or agreeing to incur capital expenditures in excess of $10,000; (h) any incurrence of indebtedness for borrowed money other than trade payables incurred in the ordinary course of business consistent with past practice, business; (ixi) the termination of employment (whether voluntary or involuntary) of any officer or key employee of the Surviving Company; or (j) any entering intochange, renewal, modification occurrence or extension of, any material contract, arrangement circumstance having or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party havingreasonably likely to have, individually or in the aggregate, a Material Adverse Effect with respect to material adverse effect on the business, operations, assets, financial condition, results of operations or prospects of the Surviving Company.

Absence of Certain Changes or Events. (a) Since December 31, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 19982013, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction no change or loss (whether development or not covered by insurance) with respect to any property combination of changes or asset of the Company or any Subsidiary and havingdevelopments which, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect with respect to the Companyon QBT. (b) Since December 31, (iii) any material change by the Company in 2013, QBT has carried on its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than business only in the ordinary and usual course of business consistent with its past practicepractices (except for the incurrence of expenses in connection with this Agreement). (c) Except as set forth in QBT Disclosure Schedule 3.09, since December 31, 2013, QBT has not (i) increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any officer, employee or director from the amount thereof in effect as of December 31, 2013, granted any severance or termination pay, entered into any contract to make or grant any severance or termination pay, or paid any bonus, (ii) declared, set aside or paid any dividend or other distribution (whether in cash, stock or property) with respect to any of QBT’s capital stock, (iii) effected or authorized any split, combination or reclassification of any of QBT’s capital stock or any issuance or issued any other securities in respect of, in lieu of or in substitution for shares of QBT’s capital stock, (iv) changed any accounting methods (or underlying assumptions), principles or practices of QBT affecting its assets, liabilities or business, including without limitation, any reserving, renewal or residual method, practice or policy, (v) made any failure tax election by the Company to revalue QBT or any asset in accordance with GAAP consistent with past practicesettlement or compromise of any income tax liability by QBT, (vi) made any entry by the Company material change in QBT’s policies and procedures in connection with underwriting standards, origination, purchase and sale procedures or hedging activities with respect to any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a wholeLoans, (vii) suffered any declarationstrike, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any redemptionwork stoppage, purchase slow-down, or other acquisition of any of its securitieslabor disturbance, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred been a party to in Section 3.10a collective bargaining agreement, any increase in or establishment of any 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 contract or other employee benefit plan, agreement or any other increase in the compensation payable understanding with a labor union or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practiceorganization, (ix) had any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, union organizing activities or (x) made any entering into, renewal, modification agreement or extension of, commitment (contingent or otherwise) to do any contract, arrangement or agreement with any other party having, individually or in of the aggregate, a Material Adverse Effect with respect to the Companyforegoing.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report the Company Reports filed since December 31, 1998 and prior to the date of hereof or in Company Disclosure Schedule 3.10, or as otherwise expressly permitted or expressly contemplated by this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December March 31, 19982011 (the “Company Balance Sheet Date”), there has not been (i) any Material Adverse Effect with respect to change or development in the Companybusiness, operations, assets, liabilities, condition (ii) any damagefinancial or otherwise), destruction results of operations, cash flows or loss (whether or not covered by insurance) with respect to any property or asset properties of the Company or any Subsidiary and havingof its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to the Company, and to the Knowledge of Company, no fact or condition exists which is reasonably likely to cause a Material Adverse Effect with respect to Company in the future, (iiiii) any material change by the Company or any of its Subsidiaries in its accounting methods, principles or practices, with respect to the Company other than changes required by applicable law or GAAP or regulatory accounting as concurred in by Company’s independent accountants, (iviii) any revaluation entry by the Company or any of its Subsidiaries into any asset contract or commitment of (including, without limitation, any writing down A) more than $100,000 or (B) $50,000 per annum with a term of the value of inventory or writing off of notes or accounts receivable)more than one year, other than loans and loan commitments in the ordinary course of business consistent with past practicebusiness, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viiiv) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any of its Subsidiaries or any redemption, purchase or other acquisition of any of its securities, (viii) other than as set forth in any contracts the ordinary course of business consistent with past practice, (as in effect on the date hereofv) referred to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors, officers or key employees of the Company or any Subsidiary, except customary increases in compensation of its Subsidiaries (other than normal salary adjustments to employees generally incurred made in the ordinary course of business consistent with past practices), or any grant of severance or termination pay, or any contract or arrangement entered into to make or grant any severance or termination pay, any payment of any bonus, or the taking of any action not in the ordinary course of business with respect to the compensation or employment of directors, officers or employees of Company or any of its Subsidiaries, (vi) any material election made by Company or any of its Subsidiaries for federal or state income tax purposes, (vii) any material change in the credit policies or procedures of 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, (viii) any material acquisition or disposition of any assets or properties, or any contract for any such acquisition or disposition entered into other than loans and loan commitments, or (ix) any material lease of real or personal property entered into, other than in connection with foreclosed property or in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31July 30, 19981995, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report Document filed since December 31July 30, 1998 1995 and prior to the date of this Agreement, the Company and the its Subsidiaries have conducted their respective businesses only in the ordinary course and in a manner consistent with past practice andpractice, since December 31, 1998, and there has not been (i) any damage, destruction or loss, whether covered by insurance or not, having or which, insofar as reasonably can be foreseen, in the future would have a Material Adverse Effect with respect to the CompanyEffect, (ii) any damagedeclaration, destruction setting aside or loss payment of any dividend (whether in cash, stock or not covered by insuranceproperty) with respect to Common Stock, or any property redemption, purchase or asset other acquisition of any of its securities, (iii) any change in the business, operations, properties, financial condition, assets or liabilities (including, without limitation, contingent liabilities) of the Company or any Subsidiary and having, individually or in the aggregate, having a Material Adverse Effect with respect Effect, (iv) any labor dispute, other than routine matters, none of which is material to the CompanyCompany and its Subsidiaries taken as a whole, (iiiv) any entry into any material commitment or transaction (including, without limitation, any borrowing or capital expenditure) other than in the ordinary course of business consistent with past practice, (vi) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (ivvii) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), 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 customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December Except as set forth in Schedule 5.15, since March 31, 19981997, Seller has not suffered any adverse change or loss or termination of, or breach or default of any Contract, and there has been no adverse change Threatened or anticipated in the results of operations or business or assets of Seller or in any of its properties, and Seller knows of no event, in each case, which has had, or which might be expected to have, a material adverse effect on the results of operations, businesses or properties of Seller. Since March 31, 1997, Seller has conducted its business only in the Ordinary Course of Business. Without limiting the generality of the foregoing, except as set forth in Section 3.08 of the Disclosure on Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 19985.15, there has not not, since March 31, 1997, been any: (ia) change in Seller's authorized or granted partnership interests; grant of any Material Adverse Effect option or right to purchase any partnership interest in Seller; issuance of any security convertible into any such interest; grant of any registration rights; purchase, redemption, retirement, or other acquisition by Seller of any such interest; or declaration or payment of any dividend or other distribution or payment in respect of such interest; (b) amendment to the articles of limited partnership or partnership agreement of Seller; (c) entry by Seller into any employment, severance or similar contract with any director, officer or (except in the Ordinary Course of Business) employee or payment by Seller to or increase by Seller of any bonuses, salaries, or other compensation with respect to any partner, director, officer or (except in the CompanyOrdinary Course of Business) employee of Seller ; (d) except as required by Section 8.6, adoption of, increase in the contributions or other payments to or benefits under (iiincluding, without limitation, accelerated payment or vesting of benefits), making of any new grants or awards under, or the establishment, amendment or termination of, any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, Seller Plan or other Employee Benefit Plan; (e) any damage, destruction or loss (whether or not covered by insurance) with respect to any property assets of Seller involving cost or asset loss (not covered by insurance) in excess of the Company or any Subsidiary and having, individually or $25,000 in the aggregate; (f) entry into, a Material Adverse Effect with respect to the Companytermination of, or receipt of notice of termination of (iiii) any license, distributorship, dealer, sales representative, joint venture, credit or similar agreement, or (ii) any Contract or transaction involving a total remaining commitment by or to Seller of at least $25,000; (g) sale (other than sales of inventory in the Ordinary Course of Business), lease, or other disposition of any asset or property of Seller or mortgage, pledge, or imposition of any lien or other encumbrance on any material asset or property of Seller, including the sale, lease, or other disposition of any of the Intellectual Property of Seller; (h) cancellation, waiver or compromise of any claims or rights with a value to Seller in excess of $25,000; (i) change by the Company Seller in its accounting methods, principles or practices; or (j) agreement, with respect whether oral or written, by Seller to the Company (iv) do any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companyforegoing.

Absence of Certain Changes or Events. Since Except as set forth on Schedule 3.7, since December 31, 19982020, each of the Company and Subsidiary has conducted its business only in the Ordinary Course of Business and there has not been a Material Adverse Effect. Without limiting the foregoing, except as set forth in Section 3.08 of the Disclosure on Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and3.7, since December 31, 19982020, there neither the Company nor Subsidiary has not been (a) issued, purchased or redeemed any of its equity securities, or granted or issued any option, warrant or other right to purchase or acquire any such equity securities, (b) incurred or discharged any Liabilities, except Liabilities incurred or discharged in the Ordinary Course of Business, (c) encumbered any of its properties or assets, tangible or intangible, except for Encumbrances incurred in the Ordinary Course of Business, (d) (i) granted any Material Adverse Effect increase in the salaries (other than normal increases for employees averaging not in excess of ten percent per annum made in the Ordinary Course of Business) or other material compensation or benefits payable or to become payable to, or any advance (excluding advances for ordinary business expenses consistent with respect to past practice) or loan to, any officer, director, shareholder, member, partner, employee or independent contractor of the CompanyCompany or Subsidiary, (ii) made any damagepayments to any pension, destruction retirement, profit-sharing, bonus or similar plan except payments in the Ordinary Course of Business made pursuant to the Benefit Plans, (iii) granted or made any other material payment of any kind to or on behalf of any officer, director, member, partner, shareholder, employee or independent contractor other than payment of base compensation, commissions in accordance with existing policies and reimbursement for reasonable expenses in the Ordinary Course of Business, or (iv) adopted, amended or terminated any employee benefit plan (including any Benefit Plan) or any stay bonus, retention bonus, transaction bonus or change in control bonus plan or arrangement, other than, in any case, annual health and welfare benefit renewals and amendments required by applicable Law, (e) suffered any material change or, to the knowledge of Sellers, received any threat of any change in any of its relations with, or any loss or, to the knowledge of Sellers, threat of loss of, any of the suppliers, clients, distributors, customers or employees that are material to the Business, including any loss or change which may result from the transactions contemplated by this Agreement, (f) disposed of or failed to keep in effect any rights in, to or for the use of any Permit material to the Business, (g) changed any method of keeping of its books of account or accounting practices, (h) disposed of or failed to keep in effect any rights in, to or for the use of any of the Intellectual Property material to the Business, (i) sold, transferred or otherwise disposed of any assets, properties or rights of the Business with a value in excess of $25,000, except inventory sold in the Ordinary Course of Business, (j) entered into any transaction or Contract outside the Ordinary Course of Business or with any partner, shareholder, member, officer, director or other Affiliate of the Company, Subsidiary or any Seller, (k) made or authorized any single capital expenditure in excess of $25,000, or capital expenditures in excess of $50,000 in the aggregate, (l) changed or modified in any manner its existing credit, collection and payment policies, procedures and practices with respect to accounts receivable and accounts payable, respectively, including acceleration of collections of receivables, failure to make or delay in making collections of receivables (whether or not covered by insurancepast due), acceleration of payment of payables or failure to pay or delay in payment of payables, (m) incurred any material damage, destruction, theft, loss or business interruption, (n) made any declaration, payment or setting aside for payment of any distribution (whether in equity or property) with respect to any property securities or asset interests of the Company or Subsidiary, (o) made (except as consistent with past practice) or revoked any Tax election or settled or compromised any material Liability for Taxes with any Taxing Authority, (p) waived or released any material right or claim of the Company or Subsidiary and havingor incurred any modifications, individually amendments or terminations of any Contracts which are in the aggregate, a Material Adverse Effect with respect aggregate materially adverse to the Company, Subsidiary or the Business, or (iiiq) instituted any material change by in its conduct of the Company Business or any material change in its accounting methods, principles practices or practices, with respect to the Company (iv) any revaluation by the Company methods of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companycash management.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 on Schedule 3.12 of the Company Disclosure Schedule or as contemplated by this Agreement in the Company SEC Documents filed or disclosed in any SEC Report filed since December 31, 1998 and furnished prior to the date of hereof, or as otherwise expressly permitted or expressly contemplated by this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 19982010, there has not been (i) any Material Adverse Effect with respect to change or development in the Companybusiness, operations, assets, liabilities, condition (ii) any damagefinancial or otherwise), destruction results of operations, cash flows or loss (whether or not covered by insurance) with respect to any property or asset properties of the Company or any Subsidiary and havingof its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect with respect to the CompanyEffect, (iiiii) any material change by the Company or any of its Subsidiaries in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation other than changes required by applicable law or GAAP or regulatory accounting as concurred in by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practiceCompany's independent registered public accounting firm, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (viiii) any entry by the Company or any Subsidiary of its Subsidiaries into any contract or commitment of (A) more than $250,000 or transaction material to (B) $100,000 per annum with a term of more than one year, other than loans and loan commitments in the Company and the Subsidiaries taken as a wholeordinary course of business, (viiiv) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any of its Subsidiaries or any redemption, purchase or other acquisition of any of its securities, (viii) other than as set forth in any contracts the ordinary course of business consistent with past practice or with respect to shares tendered in payment for the exercise of stock options or withheld for tax purposes upon the vesting of restricted stock awards or performance share awards or upon the exercise of stock options, (as in effect on the date hereofv) referred to in Section 3.10, any increase in establishment or establishment amendment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors or executive officers of the Company or any of its Subsidiaries, or any contract or arrangement entered into to make or grant any severance or termination pay, or the taking of any action not in the ordinary course of business with respect to the compensation or employment of directors, officers or key employees of the Company or any Subsidiaryof its Subsidiaries, except customary increases (vi) any material closing agreement, settlement, election or other action made by Company or any of its Subsidiaries for federal or state income tax purposes, (vii) any material change in compensation the credit policies or procedures of the Company or any of its Subsidiaries, the effect of which was or is to employees generally incurred make any such policy or procedure less restrictive in any respect, (viii) any material acquisition or disposition of any assets or properties, or any contract for any such acquisition or disposition entered into, other than loans and loan commitments, or (ix) any material lease of real or personal property entered into, other than in connection with foreclosed property or in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth disclosed in Section 3.08 of the Company Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed Letter, since December 31June 30, 1998 and prior to 2009 through the date of this Agreementhereof, the Company and the Company Subsidiaries have conducted conducted, in all material respects, their businesses only business in the ordinary course consistent with past practice, and since such date through the date hereof, (a) there has not occurred any Company Material Adverse Effect and (b) the Company and the Company Subsidiaries have not (i) except for borrowings under the Credit Agreement, dated as of February 9, 2009, among the Company, Bank of America N.A., and the other lenders party thereto, as amended (the “Credit Agreement”), incurred any material Indebtedness, (ii) increased the compensation or benefits payable to or to become payable to its directors, officers or employees, except for increases in a manner the ordinary course of business consistent with past practice and, since December 31, 1998, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction in salaries or loss (whether or not covered by insurance) with respect to any property or asset wages of employees of the Company or any Subsidiary and havingCompany Subsidiary, individually or in granted any rights to severance or termination pay to, or entered into any employment or severance agreement with, any director, officer or other employee of the aggregateCompany or any Company Subsidiary, a Material Adverse Effect with respect or taken any affirmative action to the Companyamend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Benefit Plan, (iii) made or changed any material change election in respect of Taxes, adopted or changed any material accounting method in respect of Taxes or, except in the ordinary course of business consistent with past practice, settled or compromised any material claim, notice, audit report or assessment in respect of Taxes, (iv) made any material change, other than changes required by the Company in its accounting methods, principles or practicesGAAP, with respect to accounting policies or procedures of the Company or any Company Subsidiary, (ivv) pre-paid any revaluation by the Company of material Indebtedness or paid, discharged or satisfied any asset material claims, liabilities or obligations (includingabsolute, without limitationaccrued, any writing down of the value of inventory contingent or writing off of notes or accounts receivableotherwise), other than except for such payments, discharges or satisfaction of claims in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) suffered any entry material damage, destruction or loss, whether or not covered by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a wholeinsurance, (vii) any declarationdeclared, setting set aside or payment of paid any dividend or other distribution in respect of any capital stock of the Company Capital Stock (except for quarterly dividends of $0.025 per share of Common Stock), or made any direct or indirect redemption, purchase repurchase or other acquisition of any of its securitiesCompany Capital Stock, (viii) written up, written down or written off the book value of any material assets, or a material amount of any other assets, other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practiceor except as required by GAAP or Law, (ix) wound-up, liquidated, or dissolved any entering intobusiness, renewalsubsidiary, modification or extension of, any material contract, arrangement or agreement with any affiliate joint venture of the CompanyCompany or any Company Subsidiary, or (x) made any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or material changes in the aggregate, a Material Adverse Effect with respect to the Company’s disclosure controls and procedures or internal control over financial reporting.

Absence of Certain Changes or Events. Since From December 31, 19981998 to the date hereof, except as set forth in Section 3.08 of the Disclosure Schedule contemplated or as contemplated permitted by this Agreement or as disclosed in any SEC Report filed since December 31, 1998 and prior to the date execution and delivery of this AgreementAgreement or in the Company Disclosure Schedule, the Company and the Company Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, and there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset other than as described in Section 5.7 of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, Disclosure Schedule) (iiia) any material change by the Company in its accounting methods, principles or practicespractices except as required by generally accepted accounting principles and disclosed in any SEC Report filed since December 31, with respect to the Company 1998, (ivb) any material revaluation by the Company of any material asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practicepractice after the date of the most recent SEC Report filed prior to the date hereof, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vic) any entry by the Company or any Company Subsidiary into any commitment or transaction material to the Company and the Company Subsidiaries taken as a whole, except in the ordinary course of business and consistent with past practice, (viid) any declaration, setting aside or payment of any dividend or distribution in respect of any shares of the Company's capital stock of the Company or any redemption, purchase or other acquisition of any of its the Company's securities, (viiie) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any material increase in the benefits under, or establishment of the establishment, material amendment or termination of, any 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 planplan covering employees of the Company or any Company Subsidiary, or any other material increase in the compensation payable or to become payable to or any other material change in the employment terms for any directors or officers or key employees of the Company or any SubsidiaryCompany Subsidiary or any other employee earning noncontingent cash compensation in excess of $100,000 per year, except customary increases (f) any entry by the Company or any Company Subsidiary into any employment, consulting, severance, termination or indemnification agreement with any director or officer of the Company or any Company Subsidiary or entry into any such agreement with any other person for a noncontingent cash amount in compensation to employees generally incurred in excess of $100,000 per year or outside the ordinary course of business consistent with past practicebusiness, (ixg) any entering intoissuance by the Company or any Company Subsidiary of any notes, renewalbonds or other debt securities or any capital stock or other equity securities or any securities convertible, modification exchangeable or extension ofexercisable into any capital stock or other equity securities, except for the issuance of any material contractshares of Common Stock pursuant to the exercise of any stock options and the issuance of any capital stock expressly contemplated by this Agreement, arrangement (h) any agreement by the Company or agreement with any affiliate Company Subsidiary to take any of the Companyactions described in this Section 5.7 except as expressly contemplated by this Agreement, or (xi) any entering intoevent, renewal, modification change or extension of, any contract, arrangement circumstance that has or agreement with any other party having, individually or in the aggregate, is reasonably likely to have a Company Material Adverse Effect with respect Effect. Item (i) set forth above shall, as of the Effective Time, also apply to the Companyperiod beginning on the date hereof and ending immediately prior to the Effective Time.

Absence of Certain Changes or Events. Since December 31From January 1, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to 2010 until the date of this Agreement, except as contemplated by this Agreement and except for any redemption of Convertible Notes pursuant to the Indenture, the Company and the Subsidiaries have has conducted their its businesses only in the ordinary course and in a manner consistent with past practice andpractices, since December 31, 1998, and there has not been any (ia) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and havingevent that has had, individually or in the aggregateaggregate with all such other events, a Company Material Adverse Effect with respect to the CompanyEffect, (iiib) any material change by the Company in its accounting methods, principles or practicespractices materially affecting the consolidated assets, liabilities, results of operations or Taxes of the Company and its consolidated Company Subsidiaries, except insofar as may have been required by a change in GAAP or the rules and regulations of the SEC, (c) change in an existing election with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practiceTaxes, (vd) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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 for value of any of its securitiescapital stock, (viiie) incurrence, assumption or guarantee by the Company of any indebtedness for borrowed money, other than as set forth in the ordinary course of business and in amounts and on terms consistent with past practices not exceeding $1,000,000 in the aggregate, (f) creation or assumption by the Company or any contracts (as in effect on the date hereof) referred to in Section 3.10Company Subsidiary of any material lien, encumbrance or charge on, or sale, assignment or other transfer of, any increase in material amount of their respective tangible or establishment of any bonusintangible assets, 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 g) purchase or other employee benefit planacquisition of, or commitment for, any other increase amount of tangible or intangible assets outside of the ordinary course of business and for more than $750,000 in the compensation payable aggregate, (h) (1) grant of any severance or to become payable termination pay to any officers or key employees employee of the Company or any Company Subsidiary except in accordance with existing contractual arrangements or severance or termination pay policies, (2) entry into, or amendment of, any employment, deferred compensation, severance or other similar plan or agreement with any employee, director or consultant of the Company or any Company Subsidiary, except customary increases (3) change in compensation benefits payable under existing severance or termination pay policies of the Company or any Company Subsidiary or employment agreements to employees generally incurred which any employee of the Company or any Company Subsidiary is a party, or (4) change in compensation, bonus or other benefits payable to any employee, director or consultant of the Company or any Company Subsidiary, other than in the ordinary course of business consistent with past practicepractices, (ixi) commencement or notice or threat of commencement of any entering intolitigation, renewalproceeding, modification investigation or extension inquiry against, or investigation by any governmental authority of, the Company or any material contractCompany Subsidiary that would reasonably be expected to have a Company Material Adverse Effect, arrangement or agreement with any affiliate settlement of any such matter by the Company or any Company Subsidiary outside of the Companyordinary course, or (xj) dispute or disagreement between the Company or any entering intoCompany Subsidiary, renewalon the one hand, modification and any material vendor of products or extension ofservices to the Company or any Company Subsidiary, any contracton the other hand, arrangement or agreement with any other party having, individually or in the aggregate, that would reasonably be expected to have a Company Material Adverse Effect with respect to the CompanyEffect.

Absence of Certain Changes or Events. Since December 31June 27, 19982010, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31Section 2.9 of the Parent Disclosure Letter, 1998 and prior to the date each of this Agreement, the Company and the Company Subsidiaries have has conducted their businesses its business only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, and there has not been (i) any Material Adverse Effect with respect event, circumstance, change, occurrence or state of facts that has had, or could reasonably be expected to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and havinghave, individually or in the aggregate, a Material Adverse Effect with respect to Effect. Since June 27, 2010, except as contemplated by this Agreement or disclosed in Section 2.9 of the CompanyParent Disclosure Letter, there has not been (iiiu) any material change by the Company in any of its Tax methods or elections or in any of its accounting methods, principles or practicespractices materially affecting the consolidated assets, with respect to liabilities or results of operations of the Company (iv) any revaluation and its consolidated Company Subsidiaries, except insofar as may have been required by the Company of any asset (includinga change in GAAP, without limitation, any writing down of the value of inventory applicable Law or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practiceregulatory guidelines, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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 for value of any of its securitiesthe Company’s capital stock, (viiiw) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of by the Company or any Subsidiary, except customary increases of the Company Subsidiaries of any increase in compensation or fringe benefits to employees generally incurred any employee, officer or director (except for increases in the ordinary course of business consistent with past practice), (ix) or any entering into, renewal, modification payment by the Company or extension of, any material contract, arrangement or agreement with any affiliate of the CompanyCompany Subsidiaries of any bonus (except for bonuses made in the ordinary course of business consistent with past practice), or any entry by the Company or any of the Company Subsidiaries into any contract (or amendment of an existing contract) to grant or provide severance, acceleration of vesting, termination pay or other similar benefits (except in the ordinary course of business consistent with past practice), (x) any entering intorevaluation by the Company or any of the Company Subsidiaries of any of their respective assets, renewalincluding writing off notes or accounts receivable or any sale of assets of the Company or any of the Company Subsidiaries, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in excess of $75,000 in the aggregate, a Material Adverse Effect (y) any sale, transfer or other disposition outside of the ordinary course of business of any material property or material assets (whether real, personal or mixed, tangible or intangible) by the Company or any of the Company Subsidiaries, or (z) any commitment or agreement with respect to the Companyitems described in the preceding clauses (u) through (y).

Absence of Certain Changes or Events. Since December 31, 1998, except (a) Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or publicly disclosed in any SEC Report Company Reports filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice andhereof, since December 31, 19981999, there has not been (i) any Material Adverse Effect with respect to the Companyno event or events have occurred that have had, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, either individually or in the aggregate, a Material Adverse Effect with respect material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole, other than any event or events attributable to (i) the Companyexecution of this Agreement and the announcement thereof, (ii) any change in law, rule or regulation or GAAP or any interpretation thereof, or (iii) any material change by the Company in its accounting methods, principles economic or practices, with respect to the Company (iv) any revaluation by the Company of any asset business conditions generally (including, without limitation, changes in interest rates) or in the banking industry specifically and not disproportionately affecting the Company or its Subsidiaries. (b) Except as publicly disclosed in Company Reports filed prior to the date hereof, since December 31, 1999, the Company and its Subsidiaries have carried on their respective businesses in all material respects in the ordinary course. (c) Since December 31, 1999, neither the Company nor any writing down of its Subsidiaries has (i) except for normal increases for employees (other than directors and officers subject to the re- porting requirements of Section 16(a) of the value of inventory or writing off of notes or accounts receivable), other than Exchange Act) made in the ordinary course of business consistent with past practicepractice or as required by applicable law, (v) any failure by increased the Company to revalue any asset in accordance with GAAP consistent with past practicewages, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a wholesalaries, (vii) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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, fringe benefits or any other increase in the compensation payable or to become perquisites payable to any officers executive officer, employee, or key employees director from the amount thereof in effect as of the Company December 31, 1999, granted any severance or any Subsidiary, termination pay (except customary increases in compensation to employees generally incurred payments made in the ordinary course of business consistent with past practice under a previously disclosed severance plan or policy), entered into any contract to make or grant any severance or termination pay, or paid any bonus other than the customary year-end bonuses for fiscal 2000 and 1999 in amounts consistent with past practice, (ixii) granted any entering intostock appreciation rights or granted any rights to acquire any shares of its capital stock to any executive officer, renewal, modification director or extension of, any material contract, arrangement or agreement with any affiliate employee other than grants to employees (other than directors and officers subject to the reporting requirements of Section 16(a) of the CompanyExchange Act) made in the ordinary course of business consistent with past practice under the Company Stock Plans and except as permitted by Section 5.2(b)(iii), or (xiii) suffered any entering intostrike, renewalwork stoppage, modification slow-down, or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companylabor disturbance.

Absence of Certain Changes or Events. Since December 31, 19982004, except as set forth in Section 3.08 of the Disclosure Schedule specifically contemplated by, or as contemplated by disclosed in, this Agreement or disclosed in any SEC Report filed since December 31Section 3.10 of the Company Disclosure Schedule, 1998 and prior to the date each of this Agreement, the Company and its Subsidiaries has conducted its business in, and has not engaged in any material transaction other than according to, the Subsidiaries have conducted their businesses only in the usual and ordinary course and in a manner consistent with past practice and, since December 31, 1998such date, there has not been been: (ia) any Material Adverse Effect with respect to the CompanyCompany circumstance, occurrence or development (ii) including any damage, destruction or loss (whether or not covered by insurance) adverse change with respect to any property circumstance, occurrence or asset of the Company development existing on or any Subsidiary and havingprior to December 31, 2004) which, individually or in the aggregate, would have a Material Adverse Effect with respect to the Company, ; (iiib) any material change by the Company in its accounting methodsdamage, principles destruction or practices, other casualty loss with respect to the Company (iv) any revaluation by the Company of any material asset (includingor property owned, without limitation, any writing down of the value of inventory leased or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry otherwise used by the Company or any Subsidiary into any commitment of its Subsidiaries, whether or transaction material to the not covered by insurance; (c) other than regular quarterly dividends on Company and the Subsidiaries taken as a wholeShares of not in excess of $0.15 per Share, (vii) any declaration, setting aside or payment of any dividend or other distribution in cash, stock or property in respect of any the capital stock of the Company or any redemption, purchase or other acquisition of any of its securities, Subsidiaries; (viiid) other than as set forth any material change in any contracts method of accounting or accounting practice by the Company or its Subsidiaries; (as in effect on the date hereofe) referred to in Section 3.10, any increase in or establishment of any 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 other material increase in the compensation payable or to that could become payable by the Company to officers or key employees or any amendment of any of the Benefit Plans other than (i) increases or amendments in the ordinary and usual course consistent with past practice or (ii) pursuant to any employment agreements already in existence prior to the date hereof that the Company or any of its Subsidiaries has with any officers or key employees employees; or (f) any agreement to do any of the Company or any Subsidiaryforegoing, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companyunless otherwise permitted herein.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any the SEC Report Documents filed since December 31, 1998 and on or prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice andhereof, since December 31, 1998, the Company has conducted its business only in the ordinary course consistent with past practice, and there has not been (i) any Material Adverse Effect material adverse change with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment of any dividend (whether in cash, stock or distribution in property) with respect to any of any the Company's capital stock other than the regular quarterly dividends on Shares in the amount of $.045 per Share (the "Company's regular dividend"), (iii) (A) any granting by the Company or any of its subsidiaries to any officer, director or employee of the Company or any redemption, purchase or other acquisition of any of its securities, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, subsidiaries of any increase in or establishment of any 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 bonus 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 Subsidiarybenefits, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practiceprior practice or as was required under employment agreements in effect as of December 31, 1998, (ixB) any entering intogranting by the Company or any of its subsidiaries to any such officer, renewal, modification director or extension employee of, or any material contractincrease in, severance or termination pay, except as was required under employment, severance or termination agreements in effect as of December 31, 1998, or any amendment to any existing arrangement with such officer, director or employee, (C) except in accordance with past practice as to officers, directors or employees of the Company or any of its subsidiaries, any entry by the Company or any of its subsidiaries into any employment, deferred compensation, severance, termination or other similar agreement (or any amendment to such existing agreement) with any affiliate such officer, director or employee, or (D) any establishment, adoption or amendment (except as required by applicable law) of any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any director, officer or employee of the Company or any of its subsidiaries, (iv) any damage, destruction or loss, whether or not covered by insurance, affecting the business or assets of the Company or any of its subsidiaries that has or reasonably could be expected to have a material adverse effect on the Company, (v) any change in accounting methods, principles or practices or any change in any method of tax accounting by the Company materially affecting the assets, liabilities or business of the Company and its subsidiaries, taken as a whole, except insofar as may have been required by a change in generally accepted accounting principles, or (xvi) any entering intoevent which, renewalif it had taken place following the execution of this Agreement, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companywould not have been permitted by Section 4.1.

Absence of Certain Changes or Events. Since December 31, 1998, except (i) Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only reflected in the ordinary course and in a manner consistent with past practice andCompany’s unaudited balance sheet as of June 30, 2004, since December 31September 30, 19982003, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction no change or loss (whether development or not covered by insurance) with respect to any property combination of changes or asset of the Company or any Subsidiary and havingdevelopments which, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect with respect to on the Company. (ii) Since September 30, 2003, the Company and its Subsidiaries have carried on their respective businesses only in the ordinary and usual course of business consistent with their past practices (except for the incurrence of expenses in connection with this Agreement and the transactions contemplated hereby). (iii) any material change by Except as set forth in Section 5.01(h)(iii) of the Company in its accounting methodsDisclosure Schedule, principles or practicessince September 30, with respect to 2003 through the date hereof, neither the Company nor any of its Subsidiaries has (ivA) increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any revaluation by officer, employee or director from the Company amount thereof in effect as of any asset (includingSeptember 30, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), 2003 other than in the ordinary course of business consistent with past practice, (v) granted any failure by severance or termination pay under which the Company to revalue has any asset in accordance with GAAP consistent with past practicecontinuing obligation, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practiceto non-officer employees, entered into any contract to make or grant any severance or termination pay under which the Company has any continuing obligation, or paid any bonus to any director or officer, (ixB) declared, set aside or paid any entering intodividend or other distribution (whether in cash, renewal, modification stock or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (xproperty) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to any Company Stock, other than regular quarterly cash dividends on the Company Common Stock, (C) effected or authorized any split, combination or reclassification of any Company Stock, or issued, granted or authorized any Rights or Company Stock, or issued any other securities in respect of, in lieu of or in substitution for shares of Company Stock, other than Company Common Stock issued in the ordinary course of business upon the exercise of Company Options set forth in Section 5.01(b) of the Company Disclosure Schedule, (D) changed in any material respect any accounting methods (or underlying assumptions), principles or practices of the Company or its Subsidiaries affecting its assets, liabilities or businesses, including without limitation, any reserving, renewal or residual method, practice or policy, (E) made any material tax election by the Company or its Subsidiaries or any settlement or compromise of any material income tax liability by the Company or its Subsidiaries, (F) made any material change in the Company’s policies and procedures in connection with underwriting standards, origination, purchase and sale procedures or hedging activities with respect to any Loans, (G) suffered any strike, work stoppage, slow-down or other like labor disturbance, (H) been a party to a collective bargaining agreement, contract or other agreement or understanding with a labor union or organization, (I) had any union organizing activities, (J) made any contribution to or in respect of the Company ESOP or (K) made any agreement or commitment (contingent or otherwise) to do any of the foregoing.

Absence of Certain Changes or Events. Since December 31, 19981996, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to or as set forth in Section 3.07 of the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998Disclosure Schedule, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction event or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and change having, individually or in the aggregate, a Material Adverse Effect with respect to Effect, except for general economic changes and changes that may affect generally the Companyindustries in which the Company operates, (iiiii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viiiii) 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, (viiiiv) other than as set forth in any contracts entry into any agreement or understanding, whether written or (as in effect if enforceable) oral, between the Company or any Subsidiary on the one hand, and any of their respective employees, on the other hand, providing for the employment of any such employees or any severance or termination benefits payable or to become payable by the Company or any Subsidiary to any employee, or (v) except as permitted by this Agreement and except for increases made prior to the date hereof) referred to of this Agreement in Section 3.10accordance with past practices, any increase (including any increase effective in the future) in (A) the compensation, severance or establishment termination benefits payable or to become payable by the Company or any Subsidiary to any employee (or any increase in benefits under any change in control severance arrangement applicable to employees of the Company and the subsidiaries, generally) or (B) any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option pension or other employee benefits (including, including without limitation, limitation the granting of stock options, stock appreciation rights, performance awards rights or restricted stock awards)) made to, stock purchase for or other employee benefit planwith any employee. All contracts, agreements or any other increase in the compensation payable understandings, whether written or to become payable to any officers or key employees of (if enforceable) oral, between the Company or any SubsidiarySubsidiary on the one hand, and any of their respective employees on the other hand, are set forth in Schedule 3.07 of the Disclosure Schedule and have been furnished to Parent prior to the date hereof. At April 30, 1997, the working capital (current assets minus current liabilities) of the Company was $10.1 million, of which $9.9 million consisted of cash, and the long-term indebtedness of the Company was less than $2.4 million. Since such date, except customary increases as contemplated by this Agreement or as set forth in compensation to employees generally incurred Section 3.07 of the Disclosure Schedule, there has not been (i) any decrease in the working capital of the Company other than such as may result from actions taken in the ordinary course of business consistent with past practice, of the Company or (ixii) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate increase in the long-term indebtedness of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 on Schedule 3.7 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed Schedules, since December 31, 1998 and prior to the date of this AgreementBalance Sheet Date, the Company and the Subsidiaries have has conducted their businesses its business only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998to the Company’s knowledge, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect Effect. Without limiting the foregoing, except as set forth on Schedule 3.7 or as reflected in the Balance Sheet, since the Balance Sheet Date, the Company has not (a) purchased or redeemed any shares of its stock, or granted or issued any option, warrant or other right to the Companypurchase or acquire any such shares, (iiib) incurred or discharged any material change by the Company in its accounting methodsliabilities or obligations (whether absolute, principles accrued, contingent or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivableotherwise), other than except liabilities and obligations incurred or discharged in the ordinary course of business consistent with past practice, (vc) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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 encumbered any of its securitiesproperties or assets, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in tangible or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiaryintangible, except customary increases in compensation to employees generally for Encumbrances incurred in the ordinary course of business consistent with past practice, (ixd) granted any entering intoincrease in the salaries or other compensation payable or to become payable to, renewalor any advance (excluding advances for ordinary business expenses consistent with past practice) or loan to, modification any officer, director or extension employee of the Company (other than normal increases for employees averaging not in excess of five percent (5%) per annum made in the ordinary course of business and consistent with past practice), or any increase in, or any addition to, other benefits (including any bonus, profit-sharing, pension or other plan) to which any of the officers, directors and employees may be entitled, or any payments to any pension, retirement, profit-sharing, bonus or similar plan except payments in the ordinary course of business and consistent with past practice made pursuant to the Benefit Plans, or any other payment of any kind to or on behalf of any officer or employee other than payment of base compensation, normal and customary bonuses and reimbursement for reasonable expenses in the ordinary course of business consistent with past practice, (e) suffered any change or, to the Company’s knowledge, received any threat of any change in any of its relations with, or any loss or, to the Company’s knowledge, threat of loss of, any of the suppliers, clients, distributors, customers or employees that are material contractto the Company’s business, arrangement including any loss or change which may result from the transactions contemplated by this Agreement, (f) disposed of or has failed to keep in effect any rights in, to or for the use of any franchise, license, permit or certificate material to the Company’s business, (g) changed any method of keeping of their respective books of account or accounting practices, (h) disposed of or failed to keep in effect any rights in, to or for the use of any of the Intellectual Property (as hereinafter defined) material to the Company’s business, (i) sold, transferred or otherwise disposed of any assets, properties or rights of the Company’s business, except inventory sold in the ordinary course of business consistent with past practice, (j) entered into any transaction, agreement or event outside the ordinary course of the conduct of the Company’s business or with any officer, director, stockholder, or other affiliate of the Company or any “associates” (as defined in the rules and regulations of the Securities and Exchange Commission) of any of the forgoing, (k) made nor authorized any single capital expenditure in excess of $25,000, or capital expenditures in excess of $100,000 in the aggregate, (l) changed or modified in any manner its existing credit, collection and payment policies, procedures and practices with respect to accounts receivable and accounts payable, respectively, including acceleration of collections of receivables, failure to make or delay in making collections of receivables (whether or not past due), acceleration of payment of payables or failure to pay or delay in payment of payables, (m) incurred any material damage, destruction, theft, loss or business interruption, (n) made any declaration, payment or setting aside for payment of any dividend or other distribution (whether in cash, stock or property) with respect to any securities of the Company, (o) made (except as consistent with past practice) or revoked any Tax election or settled or compromised any material Tax liability with any Taxing Authority, or (xp) waived or released any entering intomaterial right or claim of the Company or incurred any modifications, renewal, modification amendments or extension of, terminations of any contract, arrangement or agreement with any other party having, individually or Contracts which are in the aggregate, a Material Adverse Effect with respect aggregate materially adverse to the CompanyCompany or its business.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 on SCHEDULE 3.9, since the date of the Disclosure Schedule or as contemplated by this Agreement or disclosed most recent ------------ financial statements included in any the SEC Report filed since December 31, 1998 and Documents that have been publicly available prior to the date of this Agreementhereof, the Company and its Subsidiaries (only from the Subsidiaries date such Subsidiary was acquired by the Company) have conducted their respective businesses only in the ordinary course and in a manner consistent with past practice andprior practice, since December 31, 1998, and there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iiia) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practiceadverse change, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viib) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (c) any split, combination or reclassification of any of the capital stock of the Company or any redemption, purchase issuance or other acquisition the authorization of any issuance of its securitiesany other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, (viiid) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10incurrence, any increase in assumption or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of guarantee by the Company or any SubsidiarySubsidiary of any indebtedness for borrowed money, except customary increases in compensation to employees generally incurred other than in the ordinary course of business and in amounts and on terms consistent with past practicepractices; (e) (i) any granting by the Company or any Subsidiary to any officer of the Company of any material increase in compensation, (ixii) any entering intogranting by the Company or any Subsidiary to any officer, renewaldirector or consultant or an employee who earned more than $200,000 in the most recent fiscal year or is currently earning (on an annualized basis) more than $200,000 (in salary, modification or extension ofbonus and other cash compensation), of any material contractincrease in severance or termination pay or (iii) any entry by the Company or any Subsidiary into any written or oral employment agreement, or any severance or termination agreement or arrangement or agreement with any affiliate of officer, director or consultant or an employee who earned more than $200,000 in the Companymost recent fiscal year or is currently earning (on an annualized basis) more than $200,000 (in salary, or bonus and other cash compensation), (xf) any entering intodamage, renewaldestruction or loss to property, modification whether or extension ofnot covered by insurance, any contractthat, arrangement individually or agreement with any other party havingin the aggregate, has not been cured and may be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect with respect Effect, (g) any material change in accounting methods, principles or practices by the Company or any Subsidiary other than those required by GAAP, (h) any delivery of a notice of non-renewal or any other failure to renew Contracts between the CompanyCompany or any Subsidiary, on the one hand, and its customers, on the other hand, which are material, individually or in the aggregate or (i) any loss of any employee who earned more than $200,000 in the most recent fiscal year (in salary, bonus and other cash compensation).

Absence of Certain Changes or Events. Since December 31Except (i) as expressly permitted or otherwise provided in this Agreement, 1998, except (ii) as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report Reports filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only (iii) as set forth in the ordinary course and Interim Financial Statements, or (iv) as set forth in a manner consistent with past practice andSchedule 4.6 hereto, since December 31, 1998, the business of the Company and the Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been been: (ia) any Material Adverse Effect with respect to the Company, Effect; (iib) any damage, destruction or loss (whether or not covered by insurance) with respect to any property of the assets of the Company, any of its Subsidiaries or asset any Managed Provider having a Material Adverse Effect; (c) any redemption or other acquisition of Company Common Stock by the Company or any Subsidiary and havingof the Subsidiaries or any declaration or payment of any dividend or other distribution in cash, individually stock or in the aggregate, a Material Adverse Effect property with respect to Company Common Stock, except for purchases heretofore made pursuant to the terms of the Company, 's employee benefit plans; (iiid) any material change by the Company in its accounting methods, principles or practices, with respect to the Company ; (ive) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, ; (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vif) any entry by the Company or Company, any Subsidiary or, to the knowledge of the Company, any Managed Provider into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) other than as set forth commitments or transactions entered into in any contracts the ordinary course of business consistent with past practice; (as in effect on the date hereofg) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any directors, officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, ; (ixh) any entering intoentry by the Company or any Subsidiary into any employment, renewalconsulting, modification severance, termination or extension of, any material contract, arrangement or indemnification agreement with any affiliate director, officer or key employee of the Company or any Subsidiary or any entry into any such agreement with any other person; (i) any settlement or compromise by the Company, any Subsidiary or, to the knowledge of the Company, any Managed Provider of any claim, litigation or other legal proceeding, other than in the ordinary course of business consistent with past practice in an amount not involving more than $100,000 or (xii) any entering intopayment, renewal, modification discharge or extension of, satisfaction by the Company or any contract, arrangement or agreement with Subsidiary of any other party havingclaims, individually liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (A) in the aggregate, a Material Adverse Effect ordinary course of business and consistent with past practice or (B) with respect to any other such claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company; or (j) any agreement, in writing or otherwise, by the Company or any Subsidiary to take any of the actions described in this Section 4.6 or, to the knowledge of the Company, by any Managed Provider to take any of the actions described in Sections 4.6(b), (f) or (i), except as expressly contemplated by this Agreement.

Absence of Certain Changes or Events. Since December 31July 1, 19982000, except as set forth in Section 3.08 of the Disclosure Schedule or as expressly contemplated by this Agreement or as disclosed in any SEC Report filed since December 31, 1998 and prior pursuant to Section 3.08 of the date of this AgreementCompany Disclosure Schedule, the Company and the Company Subsidiaries have conducted their businesses business only in the ordinary course and in a manner consistent with past practice and, since December 31July 1, 19982000, there has not been (ia) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction event or loss events (whether or not covered by insurance) with respect that could reasonably be expected to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, have a Material Adverse Effect with respect to on the Company, (iiib) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vic) any entry by the Company or any Company Subsidiary into any commitment or transaction material to the Company Company, except in the ordinary course of business and the Subsidiaries taken as a wholeconsistent with past practice, (viid) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock or equity interests of the Company or the Company Subsidiaries or any redemption, purchase or other acquisition of any of its the Company’s or the Company Subsidiaries’ securities, (viiie) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in in, amendment to or establishment of any 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)option, stock purchase or other employee benefit plan, or (f) any other general increase in the compensation payable compensation, bonus, severance or to become termination pay or other benefits payable to any officers or key the employees of the Company or any Subsidiarythe Company Subsidiaries or, except customary for increases in compensation to employees generally incurred in the ordinary course of business in connection with periodic reviews and in amounts consistent with past practice, any specific increase in the compensation, bonus or other benefits payable to such employees, (ixg) any entering into, renewal, modification payment by the Company or extension of, any material contract, arrangement or agreement with Company Subsidiary of a bonus to any affiliate employee of the CompanyCompany or any Company Subsidiary, (h) any operation of the business of the Company and the Company Subsidiaries other than in the ordinary course, consistent with past practice; (i) any incurrence of indebtedness for borrowed money or assumption or guarantee of indebtedness for borrowed money by the Company or any Company Subsidiary (other than loans from the Company to any wholly owned Company Subsidiary or from any wholly owned Company Subsidiary to the Company or any other wholly owned Company Subsidiary), or the grant of any lien on the assets of the Company or the Company Subsidiaries to secure indebtedness for borrowed money, (j) any sale or transfer of any assets of the Company or the Company Subsidiaries other than in the ordinary course of business and consistent with past practice, or (xk) any entering intoloan, renewaladvance or capital contribution to or investment in any person in an aggregate amount in excess of $100,000 by the Company or any Company Subsidiary (excluding any loan, modification advance or extension ofcapital contribution to, or investment in, the Company or any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companywholly owned Company Subsidiary).

Absence of Certain Changes or Events. Since ------------------------------------ December 31, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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 securitiessecurities or any securities of any Subsidiary or of Durakon Mexican S.A. de C.V., (viii) other than as set forth in any contracts contract (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 ------------------------------------ ------- 4.13 of the Company Disclosure Schedule or Schedule, since March 31, 2000, except as ---- contemplated by this Agreement or disclosed in any SEC Report Document filed since December March 31, 1998 2000 and prior to the date of this Agreement, the Company and the its Subsidiaries have conducted their respective businesses only in the ordinary course and in a manner consistent with past practice andpractice, since December 31, 1998, and there has not been (i) any damage, destruction or loss, whether covered by insurance or not, having or which, insofar as reasonably can be foreseen, in the future could have a Material Adverse Effect with respect to the CompanyEffect, (ii) any damagedeclaration, destruction setting aside or loss payment of any dividend (whether in cash, stock or not covered by insuranceproperty) with respect to Common Stock, or any property redemption, purchase or asset other acquisition of any of its securities, (iii) any change in the business, operations, properties, prospects, financial condition, assets or liabilities (including, without limitation, contingent liabilities) of the Company or any Subsidiary and having, individually or in the aggregate, which could have a Material Adverse Effect with respect Effect, (iv) any labor dispute, other than routine matters, none of which is material to the CompanyCompany and its Subsidiaries taken as a whole, (iiiv) any entry into any material commitment or transaction (including, without limitation, any borrowing or capital expenditure) other than in the ordinary course of business consistent with past practice, (vi) any change by the Company in its accounting methods, principles or practices, with respect to the Company (ivvii) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), 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 customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31From June 30, 19981997 to the date hereof, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or as disclosed in any SEC Report filed since December 31June 30, 1998 1997 and prior to the date execution and delivery of this AgreementAgreement or in the Company Disclosure Schedule, the Company and the Company Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, and there has not been (ia) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (ivb) any revaluation by the Company of any material asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vic) any entry by the Company or any Company Subsidiary into any commitment or transaction material to the Company and the Company Subsidiaries taken as a whole, except in the ordinary course of business and consistent with past practice, (viid) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company Shares or any redemption, purchase or other acquisition of any of its securities, (viiie) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10except for increases required by existing employment agreements, any increase in the benefits under, or the establishment of or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), 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 SubsidiaryCompany Subsidiary or any other employee earning in excess of $100,000 per year, except customary increases (f) any entry by the Company or any Company Subsidiary into any employment, consulting, severance, termination or indemnification agreement with any officer of the Company or any Company Subsidiary or entry into any such agreement with any other person for an amount in compensation to employees generally incurred in excess of $100,000 per year or outside the ordinary course of business consistent with past practicebusiness, (ixg) any entering into, renewal, modification Company Material Adverse Effect or extension of, (h) any material contract, arrangement agreement by the Company or agreement with any affiliate Company Subsidiary to take any of the Companyactions described in this Section 3.7 except as expressly contemplated by this Agreement, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party havingthan for such events that would not, individually or in the aggregate, have a Company Material Adverse Effect with respect to the CompanyEffect.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report the Company Reports filed since December 31, 1998 and prior to the date of hereof or in Company Disclosure Schedule 3.10, or as otherwise expressly permitted or expressly contemplated by this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December March 31, 19982012 (the “Company Balance Sheet Date”), there has not been (i) any Material Adverse Effect with respect to change or development in the Companybusiness, operations, assets, liabilities, condition (ii) any damagefinancial or otherwise), destruction results of operations, cash flows or loss (whether or not covered by insurance) with respect to any property or asset properties of the Company or any Subsidiary and havingof its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to the Company, and to the Knowledge of Company, no fact or condition exists which is reasonably likely to cause a Material Adverse Effect with respect to Company in the future, (iiiii) any material change by the Company or any of its Subsidiaries in its accounting methods, principles or practices, with respect to the Company other than changes required by applicable law or GAAP or regulatory accounting as concurred in by Company’s independent accountants, (iviii) any revaluation entry by the Company or any of its Subsidiaries into any asset contract or commitment of (including, without limitation, any writing down A) more than $100,000 or (B) $50,000 per annum with a term of the value of inventory or writing off of notes or accounts receivable)more than one year, other than loans and loan commitments in the ordinary course of business consistent with past practicebusiness, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viiiv) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any of its Subsidiaries or any redemption, purchase or other acquisition of any of its securities, (viii) other than as set forth in any contracts the ordinary course of business consistent with past practice, (as in effect on the date hereofv) referred to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors, officers or key employees of the Company or any Subsidiaryof its Subsidiaries, except customary increases or any grant of severance or termination pay, or any contract or arrangement entered into to make or grant any severance or termination pay, any payment of any bonus, or the taking of any action not in the ordinary course of business with respect to the compensation or employment of directors, officers or employees of Company or any of its Subsidiaries, (vi) any material election made by Company or any of its Subsidiaries for federal or state income tax purposes, (vii) any material change in the credit policies or procedures of Company or any of its Subsidiaries, the effect of which was or is to employees generally incurred make any such policy or procedure less restrictive in any material respect, (viii) other than loans and loan commitments, any material acquisition or disposition of any assets or properties, or any contract for any such acquisition or disposition entered into, or (ix) any material lease of real or personal property entered into, other than in connection with foreclosed property or in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report Reports filed since subsequent to December 31, 1998 2006 and prior to the date of this Agreement, as set forth in Section 4.08 of the Company Disclosure Letter, or as expressly contemplated by this Agreement, since December 31, 2006 and prior to the date of this Agreement, each of the Company and the Subsidiaries have has conducted their businesses only its business in the ordinary course and in a manner consistent with past practice and, since December 31, 1998practice. Without limiting the foregoing, there has not been not, directly or indirectly, occurred: (i) any Material Adverse Effect with respect to the Companyevent, (ii) change, effect or circumstance, including any damagedamage to, destruction or loss of any asset of the Company or a Subsidiary (whether or not covered by insurance) with respect constituting or that could reasonably be expected to result in a Material Adverse Effect; (ii) any property amendment or asset change in the organizational documents of the Company or any Subsidiary; (iii) any change in the accounting reporting methods, principles, periods, practices, policies or procedures of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect (other than as required by GAAP subsequent to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company date of this Agreement); (iv) any revaluation acquisition, lease or license from any person (by merger, consolidation, acquisition of stock or assets or otherwise) or sale, lease, license, disposal or Encumbrance (by merger, consolidation, sale of stock or assets or otherwise), of any assets other than in the ordinary course of business; (v) any waiver of a valuable right or of a debt owed to the Company or any Subsidiary or satisfaction or discharge of any asset (including, without limitation, Encumbrance or payment of any writing down liability of the Company or any Subsidiary, except in the ordinary course of business in an aggregate amount that is not material; (vi) change in any compensation arrangement or contract with any present or former employee, officer, director, consultant, stockholder or other service provider of the Company or any Subsidiary or grant of any severance or termination pay to any such present or former employee, officer, director, consultant, stockholder or other service provider or increase of any benefits payable under any severance or termination pay policies or the establishment, amendment or termination of any Plan or any increase in benefits made or proposed to be made under such Plan, except as required by applicable Law or grant of any Company Stock Awards or other awards under any Company Stock Award Plan, other than (A) required pursuant to the terms of any Plan as in effect on the date of this Agreement or (B) required by Law; (vii) declaration, setting aside or payment of any dividend or other distribution with respect to Equity Interests of the Company or any Subsidiary; (viii) split, combination or reclassification of Equity Interests of the Company or any Subsidiary or any issuance of or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for, shares of its Equity Interests of the Company or any Subsidiary; (ix) write up, write down or write off of the book value of inventory any assets of the Company and or writing off of notes or accounts receivable)any Subsidiary, other than in the ordinary course of business consistent with past practiceor as required by GAAP; (x) making, (v) any failure revoking or changing by the Company or any Subsidiary of any Tax election, changing by the Company or any Subsidiary of any method of Tax accounting, settlement or compromise by the Company or any Subsidiary of any liability for Taxes, filing by the Company or any Subsidiary of any amended Tax Return or claim for refund, surrendering any right of the Company or any Subsidiary to revalue claim a Tax refund, or consent by the Company or any asset Subsidiary to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (xi) loans, advances or capital contributions by the Company or any Subsidiary to, or investments in, any other Person, except for (A) loans, advances, capital contributions or investments between any wholly owned Subsidiary and the Company or another wholly owned Subsidiary, or (B) employee advances for expenses in accordance with GAAP consistent with past practice, the ordinary course of business; (vixii) any authorization or entry by the Company or any Subsidiary into any commitment or transaction material with respect to the Company and the Subsidiaries taken as a whole, any capital expenditure; (viixiii) any declaration, setting aside or payment of other action that would require Parent's consent under Section 6.01; or (xiv) any dividend or distribution in respect of any capital stock of contract by the Company or any redemption, purchase or other acquisition of the Subsidiaries to do any of its securities, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companyforegoing.

Absence of Certain Changes or Events. Since December 31Except as and to the extent set forth on the Financial Statements and elsewhere in the PPM, 1998to the extent contained in this Agreement, except or as set forth in Section 3.08 on Schedule 4.1(g), between March 31, 2006 (the date of the Disclosure Schedule most recent Financial Statements) and the Closing, there will not be (i) any material adverse change in the business, assets, properties, results of operations, financial condition or prospects of RE3W; (ii) any entry by RE3W into any material commitment or transaction which is not in the ordinary course of business; (iii) any change by RE3W in accounting principles or methods except insofar as contemplated may be required by this Agreement a change in generally accepted accounting principles; (iv) any declaration, payment or disclosed setting aside for payment of any dividends or other distributions (whether in cash, stock or property) in respect of RE3W Capital Stock, or any SEC Report filed since December 31direct or indirect redemption, 1998 and purchase or any other type of acquisition by RE3W, or any direct or indirect redemption, purchase or any other type of acquisition by RE3W of any shares of its capital stock or any other securities for an aggregate sum not in excess of $10,000; (v) any agreement by RE3W, whether in writing or otherwise, to take any action which, if taken prior to the date of this Agreement, the Company and the Subsidiaries would have conducted their businesses only made any representation or warranty in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, there has not been this Section 4.1 untrue or incorrect; (ivi) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset acquisition of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company assets of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable)RE3W, other than in the ordinary course of business and consistent with past practice, (v) any failure by practice and not in excess of $25,000 in the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company aggregate; or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment execution of any dividend agreement with any Person who serves as an executive officer of RE3W providing for his or distribution in respect of any capital stock of the Company or any redemption, purchase or other acquisition of any of its securities, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 planher employment, or any other increase in the compensation or in severance or termination benefits payable or to become payable by RE3W or RE3W, Inc., to any officers officer or key employees employee, or any material increase in benefits under any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, insurance or other plan or arrangement or understanding (whether or not legally binding) providing benefits to any present or former employee of RE3W or RE3W, Inc. Since the date of the Company Financial Statements, there has not been and there is not threatened, any change in financial condition, business, results of operations or prospects of the business or any Subsidiary, except customary increases in compensation material physical damage or loss to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Companyproperties or assets of the business or to the premises occupied in connection with the business, whether or (x) any entering into, renewal, modification not such loss is covered by insurance or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, which would constitute a Material Adverse Effect with respect to the CompanyEvent.

Absence of Certain Changes or Events. Since December 31June 30, 19982004, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed set forth in any SEC Report filed since December 31, 1998 and prior to Section 3.11 of the date of this AgreementDisclosure Schedule, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31June 30, 19982004, there has not been (i) any change in the business, operations, properties, condition (financial or otherwise), assets or liabilities (including, without limitation, contingent liabilities) of the Company or any Subsidiary (assessed on a consolidated basis) having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, Effect; (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, Effect; (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company ; (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, ; (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, ; (viivi) 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, (viii) securities other than as set forth in any contracts (as in effect regular quarterly dividends on the date hereofPreferred Shares not in excess of $1.65 per share; or (vii) referred to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), 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 customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or Except as contemplated by this Agreement or disclosed as set forth in any SEC Report filed Schedule 3.08 to the HVE Disclosure Schedule, since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have HVE has conducted their businesses its business only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, and there has not been (i) been: any Material Adverse Effect with respect to the Company, (ii) any material damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset material assets of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) HVE; any material change by the Company HVE in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) ; any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of any capital stock shares of the Company HVE Common Stock, or any redemption, purchase or other acquisition by HVE of any of its HVE's securities, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, ; any increase in the benefits under, or the establishment of or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors, officers or key employees of HVE; any revaluation by HVE of any of its assets, including the Company writing down of the value of inventory or any Subsidiarythe writing down or off of notes or accounts receivable, except customary increases in compensation to employees generally incurred other than in the ordinary course of business and consistent with past practice, practices; any entry by HVE into any commitment or transaction material to HVE (ix) any entering into, renewal, modification or extension of, other than this Agreement and the transactions contemplated hereby); any material contract, arrangement increase in indebtedness for borrowed money; or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a an HVE Material Adverse Effect with respect to the CompanyEffect.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 on Schedule 3.12 of the Company Disclosure Schedule or in the Company Financial Statements, or as otherwise expressly permitted or expressly contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 19982016, there has not been (i) any Material Adverse Effect with respect to change or development in the Companybusiness, operations, assets, liabilities, condition (ii) any damagefinancial or otherwise), destruction results of operations, cash flows or loss (whether or not covered by insurance) with respect to any property or asset properties of the Company which has had, or any Subsidiary and havingwould reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect with respect to the CompanyEffect, (iiiii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation other than changes required by applicable law or GAAP or regulatory accounting as concurred in by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practiceCompany’s independent registered public accounting firm, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (viiii) any entry by the Company or any Subsidiary into any contract or commitment of more than (A) $100,000 in the aggregate or transaction material to (B) $50,000 per annum with a term of more than one year, other than loans and loan commitments in the Company and the Subsidiaries taken as a wholeordinary course of business, (viiiv) 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, (viii) other than as set forth in any contracts the ordinary course of business consistent with past practice or with respect to shares tendered in payment for the exercise of stock options or withheld for tax purposes upon the vesting of restricted stock awards or performance share awards or upon the exercise of stock options, (as in effect on the date hereofv) referred to in Section 3.10, any increase in establishment or establishment amendment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors or executive officers of the Company, or any contract or arrangement entered into to make or grant any severance or termination pay, or the taking of any action not in the ordinary course of business with respect to the compensation or employment of directors, officers or key employees of the Company, (vi) any material closing agreement, settlement, election or other action made by the Company for federal or state income tax purposes, (vii) any material change in the credit policies or procedures of the Company, the effect of which was or is to make any such policy or procedure less restrictive in any respect, (viii) any material acquisition or disposition of any assets or properties, or any Subsidiarycontract for any such acquisition or disposition entered into, except customary increases other than loans and loan commitments, or (ix) any material lease of real or personal property entered into, other than in compensation to employees generally incurred connection with foreclosed property or in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31, 1998, except (a) Except as set forth disclosed in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice andSection 3.09(a), since December 31the Balance Sheet Date, 1998, there each Seller and High Plains Entity has not been (i) any Material Adverse Effect with respect to operated the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than Stations in the ordinary course of business consistent with past practicepractices. (b) Since the Balance Sheet Date through the date hereof, and except as set forth in Disclosure Schedule Section 3.09(b) or as contemplated by this Agreement, there has not been in respect of the Business: (i) any Material Adverse Effect; (ii) any damage, destruction or loss, whether or not covered by insurance, with respect to any of its property and assets having a replacement cost of more than $100,000 per Market; (iii) (x) the entry into (including renewals or amendments to existing Contracts) or relinquishment of any individual Program Rights agreement with a term of one (1) year or more or that involves cash payments or cash receipts of $50,000, or (y) the entry into (including renewals or amendments to existing Contracts) of any other agreement or commitment (other than advertising sales contracts for cash only) with a term of one (1) year or more or that involves cash payments or cash receipts of $50,000 or more per year, in the case of clause (x) or (y), other than agreements and commitments specifically contemplated by this Agreement; (iv) any material change in the programming policies of the Stations; (v) the creation or other incurrence by Seller or a High Plains Entity of any failure by the Company to revalue Lien on any asset in accordance with GAAP consistent with past practice, Purchased Asset other than Permitted Liens; (vi) any entry by the Company or (x) with respect to any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a wholeEmployee, (vii) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any bonus, insuranceemployment, 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 retirement or other employee benefit planplan (or any amendment to any such existing agreement), (y) grant of any severance or termination pay to any Employee, or any other (z) increase in or change to the rate or nature of the compensation payable or to become (including wages, employee benefits, salaries and bonuses) payable to any officers or key employees of the Company or any SubsidiaryEmployee, except customary increases in compensation to employees generally incurred each case, (A) as may be required by Law or existing contracts or applicable collective bargaining agreements and (B) in the ordinary course of business consistent with past practicepractices; (vii) any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any Employees of Seller or a High Plains Entity, which Employees were not subject to a collective bargaining agreement at the Balance Sheet Date, or any lockouts, strikes, concerted work stoppages or slowdowns, or threats thereof by or with respect to any Employees of Seller or a High Plains Entity; (viii) any sale of Owned Real Property or other transfer, conveyance or termination of leasehold rights in, such Owned Real Property or Real Property Leases; (ix) any entering into, renewal, modification change in any method of accounting or extension of, accounting practice by Seller except for any material contract, arrangement or agreement with any affiliate such change required by reason of the Company, or a concurrent change in GAAP; or (x) any entering into, renewal, modification agreement or extension of, any contract, arrangement or agreement with any other party having, individually or commitment to do anything set forth in the aggregate, a Material Adverse Effect with respect to the Companythis Section 3.09(b).

Absence of Certain Changes or Events. Since From December 31, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior 2005 to the date of this Agreementhereof, (a) the Company and the each of its Subsidiaries have has conducted their businesses its business only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, practice; there has not been (i) any Material Adverse Effect with respect change, event or condition that would reasonably be expected to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and havinghave, individually or in the aggregate, a Company Material Adverse Effect Effect; and (b) there has not been: (i) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Company, (iii) any material change by the Company in its accounting methods, principles Common Stock or practices, with respect to the Company (iv) any revaluation repurchase for value by the Company of any asset Company Common Stock or Company Stock Options, Restricted Stock Units or Company Warrants; (includingii) any split, without limitationcombination or reclassification of any Company Common 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 Company Common Stock; (iii) (A) any writing down granting by the Company or any of its Subsidiaries to any current or former director, officer, employee or independent contractor of the value Company or any of inventory its Subsidiaries (each, a "PARTICIPANT") of any loan or writing off any increase in any type of notes compensation, benefits, perquisites or accounts receivableany bonus or award, except for grants of normal cash bonus opportunities and normal increases of cash compensation (including compensation in connection with new hires), other than in each case in the ordinary course of business consistent with past practice or as was required under employment agreements in effect as of December 31, 2005, (B) any payment of any bonus to any Participant, except for bonuses paid in the ordinary course of business consistent with past practice, (vC) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry granting by the Company or any Subsidiary into of its Subsidiaries to any commitment Participant of any severance, change in control, termination or transaction material similar compensation, pay or benefits or increases therein, or of the right to the Company and the Subsidiaries taken receive any severance, change in control, termination or similar compensation, pay or benefits or increases therein, except (x) as a wholewas required under any employment, severance, termination or equity agreements in effect as of December 31, 2005, (viiy) any declaration, setting aside in the ordinary course of business consistent with past practice in connection with new hires (i) to replace departed employees or payment of any dividend or distribution (ii) otherwise in respect of any capital stock a manner that did not involve an aggregate liability of the Company or any redemption, purchase or other acquisition of any of its securities, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred with respect to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensationchange in control, pension, retirement, profit sharing, stock option termination or similar benefits in excess of $750,000 and (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 other increase z) in the compensation payable or to become payable to any officers or key employees ordinary course of the Company or any Subsidiary, except customary increases business consistent with past practice in compensation to employees generally incurred connection with promotions made in the ordinary course of business consistent with past practice, (ixD) any entering entry by the Company or any of its Subsidiaries into, renewal, modification or extension any amendment of, (i) any material contractemployment, arrangement deferred compensation, severance, change in control, termination, employee benefit, loan, indemnification, retention, stock repurchase, stock option, consulting or similar agreement, commitment or obligation between the Company or any of its Subsidiaries, on the one hand, and any Participant, on the other hand, and (ii) any agreement with between the Company or any affiliate 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 transactions involving the Company or any of its Subsidiaries of the Company, nature contemplated by this Agreement or (xE) except as disclosed in the Company SEC Documents filed after December 31, 2005 but prior to the date hereof, granting or other issuance of any Company Stock Options or Restricted Stock Units; (iv) any entering intodamage, renewaldestruction or loss, modification whether or extension ofnot covered by insurance, any contract, arrangement or agreement with any other party havingthat, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect Effect; (v) any change in accounting methods, principles or practices by the Company or any of its Subsidiaries, except for any change which is not material or which is required by a change in GAAP or applicable Laws and Regulations; (vi) any material elections with respect to Taxes by the CompanyCompany or any of its Subsidiaries or settlement or compromise by the Company or any of its Subsidiaries of any material Tax liability or refund; (vii) any entry into, or amendment, termination or waiver of, any Material Contract; or (viii) any revaluation by the Company or any of its Subsidiaries of any of the assets of the Company or any of its Subsidiaries, except insofar as may have been required by applicable Laws and Regulations or that would not reasonably be expected to have a Company Material Adverse Effect.

Absence of Certain Changes or Events. Since December 31June 30, 19981997, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31SCHEDULE 3.16, 1998 and prior to the date of this Agreement, the Company Xxxxxxxx and the Subsidiaries have conducted their businesses only business, in all material respects, in the ordinary course and in a manner consistent with past practice and(except in connection with the negotiation and execution and delivery of this Agreement), and since December 31June 30, 19981997, except as disclosed in SCHEDULE 3.16, and except as permitted in this Agreement, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction event or loss events (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having), individually or in the aggregate, having a Xxxxxxxx Material Adverse Effect with respect to the CompanyEffect, (iiiii) any material change by the Company Xxxxxxxx in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (viiii) any entry by the Company Xxxxxxxx or any Subsidiary into any commitment or transaction material to Xxxxxxxx, except in the Company ordinary course of business and consistent with past practice or except in connection with the Subsidiaries taken as a wholenegotiation and execution and delivery of this Agreement, (viiiv) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company Xxxxxxxx or any redemption, purchase purchases or other acquisition of any of Xxxxxxxx'x or its securitiesSubsidiaries' securities (except for cash dividends paid to Xxxxxxxx by its wholly-owned Subsidiaries with regard to their capital stock, and the declaration and payment to the holders of Xxxxxxxx Shares regular quarterly dividends to stockholders of record with such record dates and payment dates as are consistent with past practice), (viiiv) other than pursuant to the Plans or as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10required by law, any increase in in, amendment to, or establishment of any 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)option, stock purchase or other employee benefit plan (other than a multiemployer plan), or (vi) granted any other general increase in the compensation payable compensation, bonus or to become other benefits payable to any officers or key the employees of the Company Xxxxxxxx or any Subsidiaryits Subsidiaries, except customary for increases in compensation to employees generally incurred occurring in the ordinary course of business in accordance with its customary practice, (vii) paid any bonus to the employees of Xxxxxxxx or its Subsidiaries except for bonuses accrued on Xxxxxxxx'x unaudited balance sheet for the quarter ending June 30, 1997, (viii) any incurrence of indebtedness for borrowed money or assumption or guarantee of indebtedness or borrowed money by Xxxxxxxx or any of its Subsidiaries (other than loans from Xxxxxxxx to any wholly-owned Subsidiary or from any wholly-owned Subsidiary to Xxxxxxxx or any other wholly-owned Subsidiary), or the grant of any lien on the material assets of Xxxxxxxx or its Subsidiaries to secure indebtedness for borrowed money except, in any such case, any drawdowns by Xxxxxxxx under its revolving credit facility consistent with past practice, (ix) any entering into, renewal, modification sale or extension of, transfer of any material contract, arrangement assets of Xxxxxxxx or agreement its Subsidiaries other than in the ordinary course of business and consistent with any affiliate of the Companypast practice, or (x) any entering intoloan, renewaladvance or capital contribution to or investment in any person in an aggregate amount in excess of $100,000 by Xxxxxxxx or any Subsidiary (excluding any loan, modification advance or extension ofcapital contribution to, or investment in, Xxxxxxxx or any contract, arrangement or agreement wholly-owned Subsidiary and except for drawdowns by Xxxxxxxx under its revolving credit facility consistent with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companypast practice).

Absence of Certain Changes or Events. Since December 31, 1998, except (a) Except as set forth in Section 3.08 of the Disclosure Schedule or as otherwise contemplated by this Agreement Agreement, during the period from the date of the Audited Balance Sheet to the date of this Agreement, (i) the Company and each Company Subsidiary have conducted their respective businesses in the ordinary course of business in all material respects (including with respect to the issuance of bonds and letters of credit), (ii) the Company and each Company Subsidiary have not suffered any material loss, damage, destruction or disclosed in other material casualty affecting any SEC Report filed since December 31of their respective material properties or assets, 1998 whether or not covered by insurance, and prior (iii) there has been no Material Adverse Effect. (b) During the period from the date of the Audited Balance Sheet to the date of this Agreement, the Company and the Subsidiaries each Company Subsidiary have conducted their businesses only in the ordinary course and in a manner consistent with past practice andnot made or changed any Tax election, since December 31filed any amended Tax Return, 1998adopted or changed any Tax accounting method or changed any Tax accounting period, there has not been (i) settled any Material Adverse Effect with respect Tax claim or assessment relating to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary Company Subsidiary, surrendered any right to claim a refund of Taxes, consented to any extension or waiver of the limitations period applicable to any Tax claim or assessment relating to any Company Subsidiary, failed to pay any Tax that became due and havingpayable (including estimated tax payments), individually prepared or filed a Tax Return in the aggregatea manner inconsistent with past practice or taken any other similar action, a Material Adverse Effect with respect or omitted to take any action relating to the Companyfiling of any Tax Return or the payment of any Tax. (c) Without limiting the generality of Section 5.21(a), except as set forth on Section 5.21(b) of the Company Disclosure Schedules, since the date of the Interim Balance Sheet, neither the Company nor any of the Company Subsidiaries has taken or failed to take any action that, if taken or failed to be taken after the date hereof, would require consent of the Buyer pursuant to Section 7.1(b) (determined without regard to clauses (i) - (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value prefatory paragraph of inventory or writing off of notes or accounts receivableSection 7.1(b), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 3.07 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed Schedule, since December 31, 1998 and prior to the date of this AgreementCompany Balance Sheet Date, the Company and the Subsidiaries Company Subsidiary have conducted their respective businesses only in the ordinary course and in a manner consistent with past practice andpractice, and there has not been any material adverse change (as defined in Section 9.03) with respect to the Company and the Company Subsidiary, taken as a whole. Except as set forth in Section 3.07 of the Disclosure Schedule, since December 31, 1998the Company Balance Sheet Date, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment of any dividend or other distribution in with respect of any to the Company’s capital stock of the Company or any redemption, purchase or other acquisition of any of its securitiescapital stock, (viiiii) 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 shares of its capital stock, (iii) any material change in accounting methods, principles or practices by the Company or the Company Subsidiary, (iv) (w) any granting by the Company or the Company Subsidiary to any executive officer of the Company or the Company Subsidiary of any increase in compensation, except in the ordinary course of business consistent with past practice or as was required under employment agreements in effect as of the Company Balance Sheet Date, (x) any granting by the Company or the Company Subsidiary to any such officer of any increase in severance or termination pay, except as part of a standard employment package to any person promoted or hired, or as was required under employment, severance or termination agreements in effect as of the Company Balance Sheet Date, (y) except employment arrangements in the ordinary course of business consistent with past practice with employees other than as set forth in any contracts executive officer of the Company or the Company Subsidiary, any entry by the Company or the Company Subsidiary into any employment, severance or termination agreement with any such employee or executive officer, or (as in effect on the date hereofz) referred to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit profit-sharing, stock option (including, without limitation, including the granting of stock options, stock appreciation rights, performance awards or restricted stock awards or the amendment of any existing stock options, stock appreciation rights, performance awards or restricted stock awards), stock purchase or other employee benefit planplan or agreement or arrangement, (v) any damage, destruction or any other increase in the compensation payable loss, whether or not covered by insurance, that has or reasonably could be expected to become payable to any officers or key employees of have a material adverse effect on the Company or any the Company Subsidiary, except customary increases taken as a whole, (vi) any amendments or changes in compensation to employees generally incurred the Certificate of Incorporation or Bylaws of the Company, (vii) any material revaluation by the Company or the Company Subsidiary of any of its assets, including writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Companybusiness, or (xviii) any entering into, renewal, modification other action or extension of, any contract, arrangement event that would have required the consent of Parent pursuant to Section 5.01 had such action or agreement with any other party having, individually or in event occurred after the aggregate, a Material Adverse Effect with respect to the Companydate of this Agreement.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure on Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and4.8, since December 31, 19982004, the business of the Company has been conducted only in the Ordinary Course of Business and there has been no Material Adverse Change. Without limiting the generality of the foregoing, and except as set forth on Schedule 4.8, since December 31, 2004, the Company has not: (a) borrowed any amount or incurred any material expenses or obligations of any kind (whether contingent or otherwise), except in the Ordinary Course of Business; (b) entered into any material transactions or waived any material rights or entered into any transactions or waived any rights other than in the Ordinary Course of Business; (c) increased the level of benefits under any Employee Benefit Plan, the salary or other compensation (including severance) payable or to become payable to employee or obligated itself to pay any bonus or other additional salary or compensation to any employee, other than, with respect to employees who are not been officers, directors or senior managers of the Company, in the Ordinary Course of Business; (d) entered into or amended any employment agreement or arrangement in excess of $100,000 annually, or any severance or retention agreement or promoted any of the employees of the Company’s business; (e) amended, rescinded or terminated (and not renewed) any existing material Contract; (f) permitted any material Contract to expire or terminate (and not be renewed) by its terms; (g) made any capital expenditure (or series of related capital expenditures) that is either material or outside the Ordinary Course of Business; (h) made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans and acquisitions); (i) sold, transferred, disposed of, or agreed to sell, transfer, or dispose of, any Material Adverse Effect with respect to of its assets, properties, Intellectual Property, other than in the CompanyOrdinary Course of Business; (j) created or incurred, or discharged or satisfied, any material Encumbrance upon any of its assets or properties; (iik) made any damagechange in its method of accounting or accounting practices; (l) suffered the loss, damage or destruction of any material asset or loss property (whether or not covered by insurance); (m) with respect failed to repay any property material obligation when due; (n) initiated, compromised, or asset settled any material litigation or arbitration proceeding; (o) made a material revaluation of any of its assets or liabilities, including any material write-offs, material increases or decreases in any reserves or any material write-up of the Company value of inventory, property, plant, equipment or any Subsidiary and havingother asset; (p) made a material change in Tax methods, individually material Tax elections or in the aggregateamendments or revocation thereof, a Material Adverse Effect or settled or compromised any material Tax dispute with respect to the Company; (q) amended, or proposed to amend, the Organizational Documents of the Company; (iiir) adopted, implemented or amended any material change by the Company stockholder rights plan; (s) declared, set aside or paid any dividend or other distribution or payment (whether in its accounting methodscash, principles stock or practices, property) with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock or other equity securities of the Company or made any redemption, redemption purchase or other acquisition of any of its securities, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate securities of the Company, or made any other payment to any stockholder of the Company in its capacity as a stockholder; (t) accelerated collection of account receivables or delayed or failed to pay accounts payable, other than in the Ordinary Course of Business, or any account payable contested in good faith; (u) restructured or reorganized any of the business divisions or units of the Company; (v) materially changed the amount of insurance coverage provided by its insurance policies; (w) issued or committed to issue any Equity Interest or Equity Commitment; or (x) entered into any entering into, renewal, modification commitment (contingent or extension of, otherwise) to do any contract, arrangement or agreement with any other party having, individually or in of the aggregate, a Material Adverse Effect with respect to the Companyforegoing.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure on Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and------------------------------------ 3.8, since December 31, 1998, there has not been occurred nor has any fact or circumstance arisen which may be expected to lead to, (i) any Material Adverse Effect with respect to the Companyexcept as permitted by Section 5.2, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to Seller's capital stock or any purchase by Seller of any shares of capital stock of the Company or Seller; (ii) any redemption, purchase or other acquisition of any of its securities, increase (viii) other than as set forth increases in any contracts (as accordance with past custom and practice or in accordance with agreements in effect on at December 31, 1998) in the date hereof) referred to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option compensation (including, without limitation, bonuses and compensatory options) payable or to become payable by Seller to any of its shareholders or directors or to any of its officers or employees who received or were entitled to receive compensation during the granting fiscal year ended December 31, 1998 in excess of stock optionsSeventy-five Thousand Dollars ($75,000); (iii) any payment by Seller of, stock appreciation rightsor agreement by Seller to pay, performance awards any pension, retirement allowance or restricted stock awards)other employee benefit to any of its past or present shareholders, stock purchase directors, officers or employees, except as required by previously existing plans, agreements or arrangements and in accordance with past custom and practice; (iv) any establishment by Seller of any additional pension, profit sharing, bonus, incentive, deferred compensation, group insurance, retirement or other employee benefit plan, or of any other increase employment or consulting agreement with or for the benefit of any Person; (v) any sale, assignment or transfer of any of the property, assets or business of Seller not in the compensation payable ordinary course of business; (vi) cancellation of any of the Claims of Seller in excess of Twenty-five Thousand Dollars ($25,000) in the aggregate; (vii) any change or amendment to become payable the Articles of Incorporation or Bylaws (or similar governing documents) of Seller; (viii) any discharge or satisfaction of any lien or payment of any material obligation or liability (fixed or contingent) by Seller not in the ordinary course of business; (ix) any mortgaging, pledging or subjecting to any officers lien of any assets or key employees properties of Seller not in the Company ordinary course of business; (x) any new investment of a capital nature by Seller in any Person, either by purchase of stock or any Subsidiarysecurities, except customary increases in compensation contribution to employees generally incurred capital, property transfer, purchase of property or assets or otherwise, not in the ordinary course of business consistent with past practice, or not reflected in the Financial Statements; (ixxi) any entering intowaiver or release of any rights by Seller not in the ordinary course of business; (xii) any new loan to, renewal, modification or extension ofany new transaction of any other nature with, any material contractshareholder, arrangement director, officer or agreement with employee of Seller; (xiii) entering into any affiliate written or oral contracts not in the ordinary course of business; (xiv) any transaction whether or not covered by the foregoing not in the ordinary course of business; or (xv) any commitment by Seller to do any of the Companythings specified in clauses (i) through (xiv) above, inclusive; or (xxvi) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or Material Adverse Change in the aggregatebusiness, a Material Adverse Effect with respect operations or condition (financial or other) of Seller. Since May 1, 1998, Seller has not sold any tangible personal property to the Companyany Person.

Absence of Certain Changes or Events. Since December March 31, 19982000, except as set forth each of OP and its Subsidiaries has conducted its business in Section 3.08 the ordinary course and there has not occurred: (a) Any material change with respect to OP or its Subsidiaries or their respective business, operations, assets or financial condition; (b) Any amendments or changes in the Amended and Restated Certificate of Incorporation or Bylaws of OP or the Disclosure Schedule or as contemplated by this Agreement or disclosed constituency documents of any Subsidiary other than in any SEC Report filed since December 31, 1998 and connection with a consolidation of its business units prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only Agreement in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, there has not been previously disclosed to VC; (ic) any Material Adverse Effect with respect to the Company, (ii) any Any damage, destruction or loss (loss, whether or not covered by insuranceinsurance or not, in excess of $250,000 in the aggregate or $50,000 for any single occurance ; (d) with respect to any property or asset Except as set forth on Section 3.8(d) of the Company OP Disclosure Schedule, any redemption, repurchase or other acquisition of shares of capital stock of OP or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any equity securities of any capital stock of the Company OP or any redemption, purchase or other acquisition of any of its securities, such Subsidiary; (viiie) other than Except as set forth in any contracts (as in effect on Section 3.8(e) of the date hereof) referred to in Section 3.10OP Disclosure Schedule, any increase in or establishment modification of any 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 other increase in the compensation or benefits payable or to become payable by OP or its Subsidiaries to any officers of its directors or key employees of the Company or any Subsidiaryemployees, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, ; (ixf) any entering into, renewal, modification or extension ofExcept as set forth in Section 3.8(f) of the OP Disclosure Schedule, any increase in or modification of any bonus, pension, insurance or other employee benefit plan, payment or arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any of its employees, except in the ordinary course of business consistent with OP's past practice; (g) Except as set forth in Section 3.8(g) of the OP Disclosure Schedule, any acquisition or sale of a material contractamount of property or assets of OP or any of its Subsidiaries; (h) Except as set forth in Section 3.8(h) of the OP Disclosure Schedule, arrangement any alteration in any term of any outstanding security of OP or any of its Subsidiaries or the issuance of any equity interest or any agreement with to issue any equity interest in OP or any of its Subsidiaries; (i) Any (A) incurrence, assumption or guarantee by OP or any of its Subsidiaries of any debt for borrowed money; (B) issuance or sale of any securities convertible into or exchangeable for debt securities of OP or any of its Subsidiaries; or (C) issuance or sale of options or other rights by OP or any Subsidiary or any affiliate of OP or any Subsidiary to acquire from OP or such Subsidiary, directly or indirectly, debt securities of OP or any of its Subsidiaries or any securities convertible into or exchangeable for any such debt securities; (j) Any creation or assumption by OP or any of its Subsidiaries of any mortgage, pledge, security interest or lien or other encumbrance on any asset of OP or any of its Subsidiaries (other than liens arising under existing lease financing arrangements or liens arising in the Companyordinary course of OP's or any of its Subsidiaries' business which in the aggregate are not material and liens for taxes not yet due and payable) which are being contested in good faith and for which adequate reserves have been established; (k) Any making of any loan, advance or capital contribution to or investment in any person, other than (A) travel loans or advances made in the ordinary course of business of OP or any of its Subsidiaries or (xB) any entering loans to entities affiliated with its employees prior to the date of this Agreement which do not exceed in the aggregate $25,000; (l) Any entry into, renewal, modification or extension amendment of, relinquishment, termination or non- renewal by OP or any of its Subsidiaries of any contract, arrangement lease transaction, commitment or agreement with other right or obligation requiring aggregate payments by OP or any of its Subsidiaries in excess of $25,000 other party having, individually or than in the aggregateordinary course of business; (m) Except as set forth on Schedule 3.8(m), any transfer or grant of a Material Adverse Effect right under the OP Intellectual Property Rights (as defined in Section 3.16), other than those transferred or granted in the ordinary course of business consistent with respect past practice; (n) Except in connection with the consummation of the transactions contemplated under the Illinois Cable Agreement (as defined in Section 5.2(a)(vi)), any transfer or grant of a right under the FCC Rights (as defined in Section 3.19); (o) Any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of OP or any of its Subsidiaries; or (p) Any agreement or arrangement made by OP or any of its Subsidiaries to take any action which, if taken prior to the Companydate hereof, would have made any representation or warranty set forth in this Section 3.8 untrue or incorrect as of the date when made.

Absence of Certain Changes or Events. Since December (i) Except as reflected in the Company’s unaudited balance sheet as of March 31, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and2004, since December 31, 19982003, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction no change or loss (whether development or not covered by insurance) with respect to any property combination of changes or asset of the Company or any Subsidiary and havingdevelopments which, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect with respect to on the Company. (ii) Since December 31, 2003, the Company and its Subsidiaries have carried on their respective businesses only in the ordinary and usual course of business consistent with their past practices (except for the incurrence of expenses in connection with this Agreement and the transactions contemplated hereby). (iii) any material change by Except as set forth in Section 5.01(h)(iii) of the Company Disclosure Schedule or disclosed in its accounting methods, principles or practices, with respect the Company SEC Reports filed prior to the Company (iv) any revaluation by date hereof, since December 31, 2003 through the date hereof, neither the Company nor any of its Subsidiaries has (A) increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any asset (includingofficer, without limitationemployee or director from the amount thereof in effect as of December 31, any writing down of the value of inventory or writing off of notes or accounts receivable), 2003 other than in the ordinary course of business consistent with past practice, (v) granted any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company severance or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) termination pay other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practiceto non-officer employees, entered into any contract to make or grant any severance or termination pay, or paid any bonus to any director or officer, (ixB) declared, set aside or paid any entering intodividend or other distribution (whether in cash, renewal, modification stock or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (xproperty) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to any Company Stock, other than regular quarterly cash dividends on the Company Common Stock, (C) effected or authorized any split, combination or reclassification of any Company Stock, or issued, granted or authorized any Rights or Company Stock, or issued any other securities in respect of, in lieu of or in substitution for shares of Company Stock, other than Company Common Stock issued in the ordinary course of business upon the exercise of Company Options set forth in Section 5.01(b) of the Company Disclosure Schedule, (D) changed in any material respect any accounting methods (or underlying assumptions), principles or practices of the Company or its Subsidiaries affecting its assets, liabilities or businesses, including without limitation, any reserving, renewal or residual method, practice or policy, (E) made any material tax election by the Company or its Subsidiaries or any settlement or compromise of any material income tax liability by the Company or its Subsidiaries, (F) made any material change in the Company’s policies and procedures in connection with underwriting standards, origination, purchase and sale procedures or hedging activities with respect to any Loans, (G) suffered any strike, work stoppage, slow-down or other like labor disturbance, (H) been a party to a collective bargaining agreement, contract or other agreement or understanding with a labor union or organization, (I) had any union organizing activities, (J) made any contribution to or in respect of the Company Employee Stock Ownership Plan or (K) made any agreement or commitment (contingent or otherwise) to do any of the foregoing.

Absence of Certain Changes or Events. (a) Since December 31November 20, 19982003, except (i) as disclosed in any Regulatory Reporting Document filed since November 20, 2003 and prior to the date hereof or (ii) as set forth in Section 3.08 5.16 of the Bank Disclosure Schedule or as contemplated by this Agreement or disclosed Schedule, neither the Bank nor any of its Subsidiaries has (a) incurred any liability which has had a Bank Material Adverse Effect, (b) suffered any change in any SEC Report filed since December 31its Condition which would have a Bank Material Adverse Effect, 1998 and prior to other than changes after the date of this Agreementhereof which affect the banking industry as a whole, the Company and the Subsidiaries have conducted their businesses only (c) failed to operate its business, in all material respects, in the ordinary course and in a manner consistent with past practice andand prudent banking practices or (d) changed any accounting practices. (b) Except as set forth in Section 5.16 of the Bank Disclosure Schedule, since December 31, 19982005, there has not been neither the Bank nor any of its Subsidiaries has: (i) entered into any Material Adverse Effect with respect to the Companyagreement, (ii) any damage, destruction commitment or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), transaction other than in the ordinary course of business consistent with past practiceprudent banking practices; (ii) incurred, assumed or become subject to, whether directly or by way of any guaranty or otherwise, any obligations or liabilities (vabsolute, accrued, contingent or otherwise) any failure by other than in the Company to revalue any asset in accordance with GAAP ordinary course of business and consistent with past practice, prudent banking practices; (viiii) any entry by the Company permitted or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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 allowed any of its securitiesproperty or assets to become subject to any mortgage, pledge, lien, security interest, encumbrance, restriction or charge of any kind (viiiother than Permitted Liens) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees ordinary course of the Company or any Subsidiary, business and consistent with prudent banking practices; (iv) except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past prudent banking practices, canceled any debts, waived any claims or rights, or sold, transferred or otherwise disposed of any its properties or assets; (v) except for regular salary increases granted in the ordinary course of business consistent with prior practice, granted any increase in compensation or paid or agreed to pay or accrue any bonus, percentage compensation, service award, severance payment or like benefit to or for the credit of any director, officer, employee or agent, or entered into any employment or consulting contract or other agreement with any director, officer or employee or adopted, amended or terminated any Bank Benefit Plan; (vi) directly or indirectly declared, set aside or paid any dividend or made any distribution in respect with capital stock, or redeemed, purchased or otherwise acquired any shares of its capital stock or other of its securities, except for dividends paid to the Bank by its Subsidiaries; (vii) organized or acquired any capital stock or any other equity securities or acquired any equity or ownership interest in any Person (except for settlement of indebtedness, foreclosure or the exercise of creditors’ remedies or in a fiduciary capacity, the ownership of which does not expose the Bank or its Subsidiaries to any liability from the business, operations or liabilities of such Person); (viii) except for the transactions contemplated by this Agreement or as otherwise permitted hereunder, entered into any transaction, or entered into, modified or amended any contract or commitment, other than in the ordinary course of business and consistent with prudent banking practices; or (ix) agreed, whether in writing or otherwise, to take any entering into, renewal, modification or extension of, action the performance of which would change the representations contained in this Section 5.16(b) in the future so that any such representation would not be true in all material contract, arrangement or agreement with any affiliate respects as of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the CompanyClosing.

Absence of Certain Changes or Events. Since December March 31, 19982000, except as contemplated by this Agreement, except as disclosed in the Target SEC Reports or as set forth in Schedule 4.9 and except as permitted pursuant to Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 316.1, 1998 Target and prior to the date of this Agreement, the Company and the its Subsidiaries have conducted their businesses business only in the ordinary course and in a manner consistent with past practice andusual course, since December 31, 1998, and there has not been (i) any Material Adverse Effect with respect to the Company, on Target; (ii) any material change by Target in its accounting methods, principles or practices; (iii) any revaluation by Target or any of its Subsidiaries of any of their respective assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business; (iv) any entry by Target or any of its Subsidiaries into any commitment or transaction material to Target and its Subsidiaries, taken as a whole; (v) any declaration, setting aside or payment of any dividends or distributions in respect of Target Common Stock or any redemption, purchase or other acquisition of any of its securities or any securities of any of its Subsidiaries; (vi) any damage, destruction or loss (whether or not covered by insurance) with respect to any property materially adversely affecting the properties or asset business of the Company or any Subsidiary Target and havingits Subsidiaries, individually or in the aggregate, taken as a Material Adverse Effect with respect to the Company, whole; (iiivii) any material change by the Company increase in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), indebtedness for borrowed money other than an increase as a result of borrowings incurred in the ordinary course of business consistent with past practice, business; (vviii) any failure by the Company to revalue granting of a security interest in or lien on any asset in accordance with GAAP consistent with past practicematerial property or assets of Target and its Subsidiaries, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, ; or (viiix) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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, plan or any other increase in the compensation payable or to become payable to any officers or key employees of the Company Target or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any its Subsidiaries other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companythan those that are required under existing contractual arrangements.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 on Schedule 4.07 of the Company Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed Schedule, since December March 31, 1998 and prior to the date of this Agreement1999, the Company and the Subsidiaries have has conducted their businesses its business only in the ordinary course course, and there has not been any material adverse change (as defined in a manner consistent Section 10.03) with past practice andrespect to the Company. Except as set forth on Schedule 4.07 of the Company Disclosure Schedule, since December March 31, 19981999, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment of any dividend or other distribution in with respect of any to its capital stock of the Company or any redemption, purchase or other acquisition of any of its securitiescapital stock (or securities convertible into its capital stock), (viiiii) any split, combination or reclassification of any of 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 capital stock, (iii) (w) any granting by the Company to any officer or director of the Company of any increase in compensation other than as set forth in the ordinary course of business, (x) any contracts granting by the Company to any such officer or director of any increase in severance or termination pay, (as y) except employment arrangements in effect on the date hereofordinary course of business consistent with past practice with employees other than any executive officer of the Company, any entry by the Company into any employment, severance or termination agreement with any such employee or executive officer or director or (z) referred to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit profit-sharing, stock option (including, without limitation, including the granting of stock options, stock appreciation rights, performance awards or restricted stock awards or the amendment of any existing stock options, stock appreciation rights, performance awards or restricted stock awards), stock purchase or other employee benefit planplan or agreement or arrangement, (iv) any damage, destruction or loss, whether or not covered by insurance, that has or reasonably could be expected to have a material adverse effect on the Company, (v) any other increase in the compensation payable or payment to become payable to any officers or key employees an affiliate of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred other than in the ordinary course of business consistent with past practice, (ixvi) any entering intorevaluation by the Company of any of its material assets, renewal(vii) mortgage, modification lien, pledge, encumbrance, charge, agreement, claim or extension of, restriction placed upon any of the material contract, arrangement properties or agreement with any affiliate assets of the Company, (viii) any material change in accounting methods, principles or practices by the Company or (xix) (A) any entering into, renewal, modification licensing or extension of, any contract, arrangement or other agreement with regard to the acquisition or disposition of any Intellectual Property Rights (as defined in Section 4.18) or rights thereto other party having, individually than licenses or other agreements in the aggregate, a Material Adverse Effect ordinary course of business consistent with past practice or (B) any amendment or consent with respect to any licensing agreement filed, or required to be filed, by the CompanyCompany with the SEC.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 2.5 of the Company Disclosure Schedule Letter or as contemplated by this Agreement or disclosed in any the Company SEC Report Reports filed since December 31, 1998 and publicly available prior to the date of this Agreementhereof (the "Filed Company SEC Reports"), since March 31, 1998, the Company and the Subsidiaries have has conducted their businesses only its business in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, and there has not been occurred: (i) any Company Material Adverse Effect with respect to the Company, Effect; (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company ; (iviii) any revaluation by the Company of any asset (of the Company's or any subsidiary's assets, including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), receivable other than in the ordinary course of business; (iv) any sale, pledge, disposition of or encumbrance upon a material amount of property of the Company or of any subsidiary, except in the ordinary course of business and consistent with past practice, ; (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any class of capital stock, (vi) any split, combination or reclassification of any of 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 capital stock, (vii) except as reflected in Section 2.2 of the Company Disclosure Letter, (x) any capital stock granting by the Company or any of its subsidiaries to any executive officer of the Company or any redemption, purchase or other acquisition Interactive Media Corporation of any of its securities, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary for normal increases in compensation to employees generally incurred in the ordinary course of business consistent with past practicepractice or as required under employment agreements in effect as of March 31, 1998, (y) any granting by the Company or any of its subsidiaries to any such executive officer of any increase in severance or termination pay, except as was required under any employment, severance or termination agreements in effect as of March 31, 1998 or (z) any entry by the Company or any of its subsidiaries into any employment, severance or termination agreement with any such executive officer, (viii) any damage, destruction or loss, whether or not covered by insurance, that has had or could reasonably be expected to have a Company Material Adverse Effect; (ix) any entering into, renewal, modification establishment or extension of, increase of benefits under any material contract, arrangement or agreement with any affiliate of the Company, plan that would constitute a Company Employee Plan under Section 2.9; or (x) any entering into, renewal, modification material Tax (as defined below) election inconsistent with past practices or extension of, the settlement or compromise of any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companymaterial Tax liability.

Absence of Certain Changes or Events. Since December 31September 30, 19982001, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or except as disclosed in any the Cidco SEC Report filed since December 31Reports or Disclosure Schedules hereto, 1998 and prior except as permitted pursuant to the date of this AgreementSection 5.1, the Company and the Subsidiaries have Cidco has conducted their businesses its business only in the ordinary course and in a manner consistent with past practice andusual course, since December 31, 1998, and there has not been (i) any Material Adverse Effect with respect to the Company, on Cidco; (ii) any material change by Cidco in its accounting methods, principles or practices; (iii) any revaluation by Cidco of any of its assets, including, without limitation, writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business; (iv) any entry by Cidco into any material commitment or transaction; (v) any declaration, setting aside or payment of any dividends or distributions in respect of Shares or any redemption, purchase or other acquisition of any of its securities or any securities of Cidco; (vi) any damage, destruction or loss (whether or not covered by insurance) with respect to any property materially adversely affecting the properties or asset business of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, Cidco; (iiivii) any material change by the Company increase in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), indebtedness for borrowed money other than an increase as a result of borrowings incurred in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, business; (viii) other than as set forth any granting of a security interest in or lien on any contracts material property or assets of Cidco; or (as in effect on the date hereofix) referred to in Section 3.10, any increase in or establishment of any 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, 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 customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any Cidco other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companythan those that are required under existing contractual arrangements.

Absence of Certain Changes or Events. Since December 31, 1998, except Except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated expressly permitted by this Agreement or Agreement, as disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, or as set forth in Schedule 4.6 hereto, since February 28, 2003, the business of the Company and the Subsidiaries have has been conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, and there has not been been: (ia) any Material Adverse Effect with respect to the Company, Effect; (iib) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the assets of the Company or any Subsidiary and having, individually or in of the aggregate, Subsidiaries having a Material Adverse Effect Effect; (c) any redemption or other acquisition of Company Common Stock by the Company or any of the Subsidiaries or any declaration or payment of any dividend or other distribution in cash, stock or property with respect to Company Common Stock, except for purchases heretofore made pursuant to the terms of the Company, 's employee benefit plans; (iiid) any material change by the Company in its accounting methods, principles or practices, with respect to the Company ; (ive) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, ; (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vif) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) other than as set forth commitments or transactions entered into in any contracts the ordinary course of business consistent with past practice; (as in effect on the date hereofg) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any directors, officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, ; (ixh) any entering intoentry by the Company or any Subsidiary into any employment, renewalconsulting, modification severance, termination or extension of, any material contract, arrangement or indemnification agreement with any affiliate director, officer or key employee of the Company or any Subsidiary; (i) (i) any settlement or compromise by the Company or any Subsidiary of any claim, litigation or other legal proceeding, other than in the ordinary course of business consistent with past practice in an amount involving more than $50,000 or (ii) any payment, discharge or satisfaction by the Company or any Subsidiary of any other claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (A) in the ordinary course of business and consistent with past practice or (B) with respect to any other such claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company, or ; or (xj) any entering intoagreement, renewalin writing or otherwise, modification by the Company or extension ofany Subsidiary to take any of the actions described in this Section 4.6, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companyexcept as expressly contemplated by this Agreement.

Absence of Certain Changes or Events. (a) Since December 31June 30, 19982012, except as set forth in Section 3.08 of the Disclosure Schedule contemplated by or as contemplated by disclosed in this Agreement Agreement, or as disclosed in any Digerati SEC Report filed since December 31June 30, 1998 2012, Digerati and prior to the date of this Agreement, the Company and the Digerati Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998such date, there has not been (ia) any Digerati Material Adverse Effect with respect to the CompanyEffect, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iiib) any material change by the Company Digerati in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viic) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company Digerati Securities or any redemption, purchase or other acquisition of any of its securities, Digerati’s securities or (viiid) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any executive officers or key employees of the Company Digerati or any Digerati Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, . (ixb) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate The Digerati Board of Directors authorized a reverse stock split of the Companycommon stock of Digerati effective as of the close of business on November 16th, or 2012. Pursuant to this reverse stock split, each one hundred and fifteen (x115) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in shares of common stock of Digerati issued and outstanding as of the aggregate, date following the reverse stock split will be converted into one (1) share of Digerati common stock. Holders of pre-split shares of Digerati common stock who otherwise would have been entitled to receive a Material Adverse Effect with respect to fractional share as a result of the Companyreverse stock split will receive the next highest one hundred (100) shares such that each shareholder will own a whole number of shares divisible by one hundred (100).

Absence of Certain Changes or Events. (a) Since December 31, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 19982015, there has not been (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction no change or loss (whether development or not covered by insurance) with respect to any property combination of changes or asset of the Company or any Subsidiary and havingdevelopments which, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect with respect to the Companyon WFD. (b) Since December 31, (iii) any material change by the Company in 2015, WFD has carried on its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than business only in the ordinary and usual course of business consistent with its past practicepractices (except for the incurrence of expenses in connection with this Agreement). (c) Except as set forth in WFD Disclosure Schedule 4.11(c), since December 31, 2015, WFD has not (i) increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any officer, employee or director from the amount thereof in effect as of December 31, 2015, granted any severance or termination pay, entered into any contract to make or grant any severance or termination pay, or paid any bonus, (ii) declared, set aside or paid any dividend or other distribution (whether in cash, stock or property) with respect to any of WFD’s capital stock, (iii) effected or authorized any split, combination or reclassification of any of WFD’s capital stock or any issuance or issued any other securities in respect of, in lieu of or in substitution for shares of WFD’s capital stock, (iv) changed any accounting methods (or underlying assumptions), principles or practices of WFD affecting its assets, liabilities or business, including without limitation, any reserving, renewal or residual method, practice or policy, except in accordance with GAAP, (v) made any failure tax election by the Company to revalue WFD or any asset in accordance with GAAP consistent with past practicesettlement or compromise of any income tax liability by WFD, (vi) made any entry by the Company material change in WFD’s policies and procedures in connection with underwriting standards, origination, purchase and sale procedures or hedging activities with respect to any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a wholeLoans, (vii) suffered any declarationstrike, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any redemptionwork stoppage, purchase slow-down, or other acquisition of any of its securitieslabor disturbance, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred been a party to in Section 3.10a collective bargaining agreement, any increase in or establishment of any 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 contract or other employee benefit plan, agreement or any other increase in the compensation payable understanding with a labor union or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practiceorganization, (ix) had any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, union organizing activities or (x) made any entering into, renewal, modification agreement or extension of, commitment (contingent or otherwise) to do any contract, arrangement or agreement with any other party having, individually or in of the aggregate, a Material Adverse Effect with respect to the Companyforegoing.

Absence of Certain Changes or Events. Since December March 31, 19982005, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed as set forth in any SEC Report filed since December 31, 1998 and prior to the date of this AgreementCompany Disclosure Schedule 3.7, the Company and the Subsidiaries have conducted their businesses its business only in the ordinary course and in a manner consistent with past practice and, since December March 31, 19982005, there has not been (i) any Material Adverse Effect Change with respect regard to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company other than changes required by GAAP, (iviii) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practicepractice and in accordance with GAAP, (iv) any issuance by the Company of any stock, bonds or other corporate securities, (v) borrowing of any failure amount or incurrence of any material obligation or material liability (absolute, accrued or contingent) by the Company, except current liabilities incurred and liabilities under contracts entered into in the ordinary course of business, (vi) discharge or satisfaction of any material lien or material encumbrance or payment of any material obligation or material liability (absolute, accrued or contingent) by the Company, other than current liabilities shown on the Company Interim Financial Statements and current liabilities incurred since the date of the Company Interim Financial Statements in the ordinary course of business, (vii) mortgage, pledge, encumbrance or lien on any of the material assets of the Company, tangible or intangible, other than liens for current real property taxes not yet due and payable, (viii) sale, assignment or transfer of any of the material tangible assets of the Company except in the ordinary course of business, or cancellation by the Company of any material debt or material claim except in the ordinary course of business, (ix) sale, assignment, transfer or grant of any exclusive license with respect to any Intellectual Property (as defined in Section 3.13 hereof) or other intangible asset of the Company, (x) any loss of property or waiver of any right of substantial value, whether or not in the ordinary course of business, (xi) any action by any of the largest twenty customers or largest twenty suppliers of the Company (as measured by amounts received by the Company from such customers or amounts paid by the Company to revalue any asset in accordance with GAAP consistent with past practicesuch suppliers during the twelve month period ending on the date of the Company Interim Financial Statements) to terminate, materially reduce or threaten to terminate its purchases from or provision of products or services to the Company, as the case may be, (vixii) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a wholeCompany, (viixiii) 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, (viiixiv) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), 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 SubsidiaryCompany, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, or (ixxv) any entering into, renewal, modification or extension of, commitment to do any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Companyforegoing.

Absence of Certain Changes or Events. Since December 31, 1998, except (a) Except as otherwise set forth in Section 3.08 on SCHEDULE 4.08 of the Company Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed Schedule, since December 31September 30, 1998 2001 and prior to the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998hereof, there has not been (i) any Material Adverse Effect with respect event that could reasonably be expected to prevent or materially delay the performance of Company's obligations pursuant to this Agreement and the consummation of the Merger by Company, (ii) any damage, destruction or loss (whether or not covered material change by insurance) with respect to any property or asset of the Company or any Company Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viiiii) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock the shares of the Company Common Stock or Company Preferred Stock or any redemption, purchase or other acquisition by Company of any of its Company's securities, (viiiiv) other than as set forth except in any contracts (as in effect on the date hereof) referred to in Section 3.10ordinary course of business consistent with past practice, any increase in the compensation or benefits or establishment of any bonus, insurance, severance, change in control, 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 other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except customary increases in compensation (v) any issuance or sale by Company or any Company Subsidiary of any stock, notes, bonds or other securities other than pursuant to employees generally incurred the exercise of outstanding securities, or entering into any agreement with respect thereto, (vi) any amendment to Company's Certificate of Incorporation or bylaws, (vii) other than in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension ofbusiness, any material contract, arrangement or agreement with any affiliate of the Company, or (x) purchase, sale, assignment or transfer of any entering intomaterial assets by Company or any Company Subsidiary, renewal(y) mortgage, modification pledge or extension ofthe institution of any lien, encumbrance or charge on any contractmaterial assets or properties, arrangement tangible or agreement with intangible, of Company or any Company Subsidiary, except for liens for Taxes not yet delinquent and such other party havingliens, encumbrances or 19 charges which do not have, and could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect Effect, or (z) waiver by Company or any Company Subsidiary of any rights of material value or cancellation or any material debts or claims, or (viii) any entering into by Company or any Company Subsidiary of any transaction of a material nature other than in the ordinary course of business, consistent with past practices. (b) Except as otherwise set forth on SCHEDULE 4.08 of the Company Disclosure Schedule, since September 30, 2001, Company and the Company Subsidiaries have conducted their businesses only in the ordinary course consistent with past practice and, since such date, there has not been (i) any Company Material Adverse Effect, (ii) any incurrence by Company or any Company Subsidiary of any damage, destruction or similar loss, whether or not covered by insurance, materially affecting the business or properties of Company or any Company Subsidiary, (iii) any incurrence by Company or any Company Subsidiary of any material liability (absolute or contingent), except for current liabilities and obligations incurred in the ordinary course of business, consistent with past practice, or (iv) to the Knowledge of Company, any impairment, modification or event, or notice of any pending or threatened impairment, modification or event which could be reasonably expected to result in a loss, impairment, or diminution in value on a going forward basis of the contractual and business relationships of Company or any Company Subsidiary with any of its material customers, material vendors or material suppliers, other than any impairment, modification or event which could not reasonably be expected to result in a loss of the relationship of Company or any Company Subsidiary with such customer, vendor or supplier or a loss of a material amount of business or a material change in profit margins with respect to the Companysuch customer, vendor or supplier.

Absence of Certain Changes or Events. Since December 31Other than as disclosed in the Twister Current Reports, 1998, except as set forth or otherwise disclosed in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to Section 4.9 of the date of this Agreement, the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice andTwister Disclosure Schedule, since December 31, 19981996 and through the date hereof, the business of Twister and of each of the Twister Subsidiaries has been conducted in the ordinary course, and there has not been (i) any Material Adverse Effect with respect to the Company, on Twister; (ii) any material indebtedness incurred by Twister or any Twister Subsidiary for money borrowed, except under credit facilities disclosed in the Twister SEC Current Reports, if any; (iii) any material transaction or commitment, except in the ordinary course of business or as contemplated by this Agreement, entered into by Twister or any of the Twister Subsidiaries; (iv) any damage, destruction or loss (loss, whether or not covered by insurance) with respect to any property insurance or asset of the Company or any Subsidiary and havingnot, which, individually or in the aggregate, would have a Material Adverse Effect with respect to the Company, on Twister; (iiiv) any material change by the Company Twister in its accounting methods, principles or practicesmethods except insofar as may be required by a change in generally accepted accounting principles; (vi) any declaration, setting aside or payment of any dividend (whether in cash, securities or property) with respect to the Company Twister Common Stock; or (ivvii) any material agreement to acquire any assets or stock or other interests of any third-party; (viii) any increase in the compensation payable or to become payable by Twister or any Twister Subsidiary to any employees, officers, directors, or consultants or in any bonus, insurance, welfare, pension or other employee benefit plan, payment or arrangement made to, for or with any such employee, officer, director or consultant (other than as provided in employment agreements, consulting agreements and welfare and benefit plans set forth on the Twister Disclosure Schedule, and except for increases consistent with past practice); (ix) any material revaluation by the Company Twister or any Twister Subsidiary of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable); (x) any mortgage or pledge of any of the assets or properties of Twister or any Twister Subsidiary or the subjection of any of the assets or properties of Twister or any Twister Subsidiary to any material liens, charges, encumbrances, imperfections of title, security interest, options or rights or claims of others with respect thereto other than in the ordinary course consistent with past practice; or (xi) any assumption or guarantee by Twister or a Twister Subsidiary of the indebtedness of any person or entity, other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (vii) 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, (viii) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in or establishment of any 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 other increase in the compensation payable or to become payable to any officers or key employees of the Company or any Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ix) any entering into, renewal, modification or extension of, any material contract, arrangement or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party having, individually or in the aggregate, a Material Adverse Effect with respect to the Company.

Absence of Certain Changes or Events. Since December 31, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this AgreementLatest Balance Sheet Date, the Merging Company and the Subsidiaries have has conducted their businesses its business only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998, and there has not been been: (i) any Material Adverse Effect with respect to the Company, (iia) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset material assets of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Merging Company, ; (iiib) any material change by the Merging Company in its accounting methods, principles or practices, with respect to the Company ; (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viic) any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of any shares of the capital stock of the Merging Company or any redemption, purchase or other acquisition by the Merging Company of any of its securities, ; (viiid) other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.10, any increase in the benefits under, or the establishment of or amendment of, any 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 sharing or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors, officers or key employees of the Company or any SubsidiaryMerging Company, except customary for annual bonuses or merit increases in salaries or wages in the ordinary course of business and consistent with past practice; (e) any payment or other transfer of assets by the Merging Company, other than compensation payments in the ordinary course of business and consistent with past practice; (f) any revaluation by the Merging Company of any of its assets, including the writing down or off of notes or accounts receivable, other than in the ordinary course of business and consistent with past practices; (g) any entry by the Merging Company into any commitment or transaction material to employees generally the Merging Company including, without limitation, incurring or agreeing to incur capital expenditures in excess of $10,000; (h) any incurrence of indebtedness for borrowed money other than trade payables incurred in the ordinary course of business consistent with past practice, business; (ixi) the termination of employment (whether voluntary or involuntary) of any officer or key employee of the Merging Company; or (j) any entering intochange, renewal, modification occurrence or extension of, any material contract, arrangement circumstance having or agreement with any affiliate of the Company, or (x) any entering into, renewal, modification or extension of, any contract, arrangement or agreement with any other party havingreasonably likely to have, individually or in the aggregate, a Material Adverse Effect with respect to material adverse effect on the business, operations, assets, financial condition, results of operations or prospects of the Merging Company.

Absence of Certain Changes or Events. Since December 31September 30, 19981999, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or as disclosed in any Company SEC Report filed since December 31September 30, 1998 and prior to the date of this Agreement1999, or as set forth in SCHEDULE 3.8, the Company and the Company Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice and, since December 31, 1998such date, there has not been (ia) any Material Adverse Effect with respect to change in the Companybusiness, operations, properties, condition (iifinancial or otherwise), assets or liabilities (including, without limitation, contingent liabilities) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Company Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to on the Company, (iiib) any material change by the Company in its accounting methods, principles or practices, with respect to the Company (ivc) any material revaluation by the Company of any material asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vid) any entry by the Company or any Company Subsidiary into any commitment or transaction material to the Company and the Company Subsidiaries taken as a whole, except in the ordinary course of business and consistent with past practice, (viie) any declaration, setting aside or payment of any dividend or distribution in respect of any the shares of its capital stock of the Company or any redemption, purchase or other acquisition of any of its securities, (viiif) other than except as set forth in any contracts (as in effect on the date hereof) referred previously disclosed to in Section 3.10Acquiror, any increase in the benefits under, or the establishment of or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards awards, or restricted stock awards), 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 Company Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practice, (ixg) any entering into, renewal, modification or extension ofexcept as previously disclosed to Acquiror, any material contractentry by the Company or any Company Subsidiary into any employment, arrangement consulting, severance, termination or indemnification agreement with any affiliate officer or employee of the Company, Company or (x) any entering into, renewal, modification Company Subsidiary or extension of, entry into any contract, arrangement or such agreement with any other party havingperson outside the ordinary course of business, individually or (h) any agreement by the Company or any Company Subsidiary to take any of the actions described in this Section 3.8 except as expressly contemplated by this Agreement. Between September 30, 1999, and the aggregatedate of this Agreement (inclusive), neither the Company nor any of the Company Subsidiaries has taken, or agreed to take, any action that would constitute a Material Adverse Effect with respect to material breach of Section 6.1 or Section 6.2 if taken after the Companydate of this Agreement.

Absence of Certain Changes or Events. (a) Since December 31, 1998, except as set forth in Section 3.08 of the Disclosure Schedule or as contemplated by this Agreement or disclosed in any SEC Report filed since December 31, 1998 and prior to the date of this Agreement1999, the Company and the Company Subsidiaries have conducted their businesses only in the ordinary course and, since such date, there has not been any Material Adverse Effect on the Company. (b) Except as set forth in Section 3.9(b) of the Company Disclosure Letter, or except as disclosed in the Company SEC Reports which have been filed and in a manner consistent with past practice andare publicly available prior to the date of this Agreement (the "COMPANY FILED SEC REPORTS") and except as permitted pursuant to Section 5.1, since December 31, 19981999, there has not been been: (i) any Material Adverse Effect with respect to the Company, (ii) any damage, destruction or other casualty loss (with respect to any asset or property owned, leased or otherwise used by it or any Company Subsidiaries, whether or not covered by insurance) with respect to any property , which damage, destruction or asset of the Company or any Subsidiary and havingloss, individually or in the aggregate, has a Material Adverse Effect with respect to on the Company, ; (iiiii) any material change by the Company in its or any Company Subsidiary's accounting methods, principles or practices, with respect to except as required by U.S. GAAP and disclosed in Section 3.9(b) of the Company Disclosure Letter; (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice, (v) any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, (viiiii) any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock shares of the Company capital stock or any redemption, purchase or other acquisition of any of its the Company's securities, ; (viiiiv) other than as set forth in any contracts (as in effect on except for the date hereof) referred to in Section 3.10Retention Plan, any increase in the compensation or benefits or establishment of any 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 other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Subsidiary, Company Subsidiary except customary increases in compensation to employees generally incurred as required by applicable Law other than any increase or modification in the ordinary course of business consistent with past practicebusiness; (A) any incurrence or assumption by the Company or any Company Subsidiary of any indebtedness for borrowed money or (B) any guarantee, endorsement or other incurrence or assumption of material liability (whether directly, contingently or otherwise) by the Company or any Company Subsidiary for the obligations of any other person (other than any wholly owned Company Subsidiary), other than indebtedness of less than U.S. $100,000 in the aggregate in the ordinary course of business; (vi) any creation or assumption by the Company or any Company Subsidiary of any Lien on any material asset of the Company or any Company Subsidiary, other than (i) in the ordinary course of business, (ixii) Liens arising after the date of this Agreement by operation of Law or without the Company's consent, (iii) for purchase money security interests and (iv) for Taxes due but not yet paid, in each case that has no Material Adverse Effect on the Company; (vii) any entering intomaking of any loan, renewaladvance or capital contribution to or investment in any person by the Company or any Company Subsidiary, modification other than in the ordinary course of business, and not in excess of U.S. $100,000; (viii) (A) any contract or extension of, agreement entered into by the Company or any Company Subsidiary on or prior to the date hereof relating to any material contract, arrangement acquisition or agreement with disposition of any affiliate of the Company, assets or business or (xB) any entering intomodification, renewalamendment, modification assignment or extension of, termination of or relinquishment by the Company or any contract, arrangement or agreement with Company Subsidiary of any rights under any other party havingContract (including any insurance policy naming it as a beneficiary or a loss payable payee) that has, individually or in the aggregate, a Material Adverse Effect with respect to on the Company other than transactions, commitments, contracts or agreements in the ordinary course of business or those contemplated by this Agreement; (ix) any adverse change in the Company's relationships with its material customers, except for changes that, individually or in the aggregate, have no Material Adverse Effect on the Company; or (x) any Tax election by the Company or settlement or compromise of any material federal, state, local or foreign Tax liability.