Common use of Change in Condition Clause in Contracts

Change in Condition. Since February 28, 1999: (a) The APC Business has been conducted in all material respects only in the Ordinary Course of Business (except as may be otherwise required by the terms of this Agreement), and without limiting the generality of the foregoing, APC and its Subsidiaries have made capital expenditures only in the Ordinary Course of Business; (b) Neither APC nor any of its Subsidiaries has: (i) made any capital expenditure greater than $50,000 except for expenditures for repairs and maintenance in the Ordinary Course of Business; (ii) incurred or otherwise become liable in respect of any Debt or become liable in respect of any Guarantee, other than any Debt or any Guarantee between APC and its respective wholly-owned Subsidiaries; (iii) mortgaged or pledged an APC Asset or subjected any APC Asset to any Lien; (iv) made any change in its authorized or issued capital stock or granted or issued any option, purchase right, convertible stock, other sort of security or registration right, or purchased, redeemed or retired any shares or other securities, or declared or made any Distribution (other than distributions or contributions in connection with an increase in or the repayment or cancellation (in whole or in part) of Debt or intercompany advances between APC and its respective wholly-owned Subsidiaries); (v) sold, leased to others or otherwise disposed of any of the APC Assets except in the Ordinary Course of Business and except for such assets as were not, individually or in the aggregate, material to APC; (vi) purchased any Equity Security issued by any Person other than ones issued by a Subsidiary of APC, or any assets material in amount or constituting a business or line of business, or been party to any merger, consolidation or other business combination or entered into any Contractual Obligation relating to any such purchase, merger, consolidation or business combination; (vii) made any loan, advance or capital contribution to or investment in any Person other than loans, advances or capital contributions to or investments in or to APC or any of APC's wholly-owned Subsidiaries and other than loans or advances made in the Ordinary Course of Business which are not material either singly or in the aggregate; (viii) canceled or compromised any Debt or claim other than in the Ordinary Course of Business and other than any Debt, intercompany advances or claim between APC and its respective wholly-owned Subsidiaries; (ix) sold, transferred, licensed or otherwise disposed of any Intellectual Property other than in the Ordinary Course of Business; (x) made or agreed to make any material change in its customary methods of accounting or accounting practices; (xi) engaged in or become obligated in respect of any transaction with PHL, Holdings or any of their Affiliates; (xii) waived or released or permitted to lapse any right of material value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or property, whether or not covered by insurance; (xiii) instituted, settled or agreed to settle any material Action; or (xiv) consented or agreed to do any of the foregoing. (c) Neither APC nor any of its Subsidiaries has (i) had any material change in its relationships with its employees, producers, agents, independent contractors, insurance carriers, customers, referral sources or suppliers, or (ii) made any changes in the rate of Compensation payable (or paid or agreed in writing or orally promised to pay, conditionally or otherwise, any extra Compensation) to any director, officer, manager, employee, producer, consultant or agent (other than changes granted in the Ordinary Course of Business and consistent with past practice, which changes will not have a Material Adverse Effect); (d) There has been no amendment of any material provision of any Equity Security issued by APC or any of its Subsidiaries; (e) Neither APC nor any of its Subsidiaries has entered into any Contractual Obligation (and PHL, Sellers and their Affiliates have not entered into any Contractual Obligation obligating APC or any of its Subsidiaries) to do any of the things referred to in clauses (a) through (d) above with respect to APC, any of the Subsidiaries of APC or the APC Business; and (f) No Material Adverse Effect has occurred with respect to APC and its Subsidiaries.

Change in Condition. Since February 28From and after the Balance Sheet Date to and including the date hereof, 1999: (a) The APC the Company has conducted its Business has been conducted in all material respects only in the Ordinary Course of Business (and has maintained the value of its Business as a going concern and, except as may be otherwise required by the terms of this Agreement)set forth on Schedule 4.12, its relationships with customers, distributors, suppliers, vendors, employees, agents and without others. Without limiting the generality of the foregoing, APC except as set forth on Schedule 4.12, which matters have not had and its Subsidiaries will not have made capital expenditures only in the Ordinary Course of Businessaggregate a Material Adverse Effect, since the Balance Sheet Date the Company has not: (a) Entered into any transaction otherwise than on an arms’ length basis or any transaction with any Existing Stockholder or any Affiliate thereof; (b) Neither APC nor any of its Subsidiaries has: (i) made Made any capital expenditure greater than in excess of $50,000 except for expenditures for repairs and maintenance 100,000 individually or $500,000 in the Ordinary Course of Businessaggregate; (iic) incurred Incurred or otherwise become liable in respect of any Debt Debt, except for borrowings in the Ordinary Course of Business under the Loan and Security Agreement dated as of December 13, 2000, between Kenexa Financial, Inc. and Citicorp USA, or become liable in respect of any Guarantee, other than any Debt or any Guarantee between APC and its respective wholly-owned Subsidiaries; (iiid) mortgaged Created or pledged an APC Asset suffered the imposition of any Lien (other than capital leases in excess of $100,000) upon any assets, whether tangible or subjected any APC Asset to any Lienintangible, of the Company; (ivi) made any change in its authorized or issued capital stock or granted or issued any option, purchase right, convertible stock, other sort of security or registration right, or purchased, redeemed or retired any shares or other securities, or declared or made any Distribution (other than distributions or contributions in connection with an increase in or the repayment or cancellation (in whole or in part) of Debt or intercompany advances between APC and its respective wholly-owned Subsidiaries); (v) soldSold, leased to others or otherwise disposed of any of its Assets, (ii) entered into any Contractual Obligation relating to (A) the APC Assets except purchase by the Company of any capital stock of or interest in the Ordinary Course of Business and except for such assets as were not, individually or in the aggregate, material to APC; (vi) purchased any Equity Security issued by any Person (other than ones issued purchases by a Subsidiary the Company from terminated employees), (B) the purchase of APC, or any assets material in amount or constituting a business or line of business, or been party to (C) any merger, consolidation or other business combination or entered into any Contractual Obligation relating to any such purchasecombination, merger, consolidation or business combination; (vii) made any loan, advance or capital contribution to or investment in any Person other than loans, advances or capital contributions to or investments in or to APC or any of APC's wholly-owned Subsidiaries and other than loans or advances made in the Ordinary Course of Business which are not material either singly or in the aggregate; (viiiiii) canceled or compromised any Debt or claim (other than in the Ordinary Course compromises of Business and other than any Debt, intercompany advances or claim between APC and its respective wholly-owned Subsidiaries; (ix) sold, transferred, licensed or otherwise disposed of any Intellectual Property other than accounts receivable in the Ordinary Course of Business; ), (x) made or agreed to make any material change in its customary methods of accounting or accounting practices; (xi) engaged in or become obligated in respect of any transaction with PHL, Holdings or any of their Affiliates; (xiiiv) waived or released or permitted to lapse any right of material substantial value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or property, whether or not covered by insurance; (xiiiv) instituted, settled or agreed to settle any material Action; or; (xiv) consented or agreed to do any of the foregoing. (c) Neither APC nor any of its Subsidiaries has (i) had any material change in its relationships with its employees, producers, agents, independent contractors, insurance carriers, customers, referral sources or suppliers, or (ii) made Made any changes in the rate of Compensation payable (or paid or agreed in writing or orally promised to pay, conditionally or otherwise, any extra Compensation) to of any director, officer, manager, employee, produceror consultant to, consultant or agent (other than of the Company, except for changes granted in the Ordinary Course of Business to the compensation of Persons other than directors and consistent officers of the Company, or (ii) paid or agreed to pay any extra Compensation to any such Person (including, without limitation, any such payments to be made in connection with past practice, which changes will not have a Material Adverse Effectand/or from the proceeds of the transactions contemplated hereby or by the other Transaction Documents); (dg) There has been no amendment of Suffered any material provision of any Equity Security issued damage, destruction or loss (whether or not covered by APC or insurance) to any of its SubsidiariesAssets; (eh) Neither APC nor Made any change in its customary methods of its Subsidiaries has entered accounting or accounting practices, pricing policies or payment or credit practices, or failed to pay any creditor any amount owed to such creditor when due, or granted any extensions of credit other than in the Ordinary Course of Business (it being understood that the consummation of the Reorganization required the Company to change from a cash method to an accrual method of accounting for income tax purposes); (i) Made any Distributions; (j) Entered into any Contractual Obligation (and PHL, Sellers and their Affiliates have not entered into any Contractual Obligation obligating APC or any of its Subsidiaries) to do any of the things referred to in clauses (a) through (di) above with respect to APC, any of the Subsidiaries of APC or the APC Businessabove; and (fk) No Suffered or incurred any Material Adverse Effect has occurred with respect to APC and its SubsidiariesEffect, nor any event or events which in the aggregate will have a Material Adverse Effect.

Change in Condition. Since February 28From and after the Balance Sheet Date to and including the date hereof, 1999: (a) The APC the Company has conducted its Business has been conducted in all material respects only in the Ordinary Course of Business (and has maintained the value of its Business as a going concern and, except as may be otherwise required by the terms of this Agreement)set forth on Schedule 4.12, its relationships with customers, distributors, suppliers, vendors, employees, agents and without others. Without limiting the generality of the foregoing, APC except as set forth on Schedule 4.12, which matters have not had and its Subsidiaries will not have made capital expenditures only in the Ordinary Course of Businessaggregate a Material Adverse Effect, since the Balance Sheet Date the Company has not: (a) Entered into any transaction otherwise than on an arms’ length basis or any transaction with any Existing Stockholder or any Affiliate thereof (other than the Xxxxxxx Redemption Agreement and the Xxxxxxxx Redemption Agreement); (b) Neither APC nor any of its Subsidiaries has: (i) made Made any capital expenditure greater than in excess of $50,000 except for expenditures for repairs and maintenance 100,000 individually or $500,000 in the Ordinary Course of Businessaggregate; (iic) incurred Incurred or otherwise become liable in respect of any Debt Debt, except for borrowings in the Ordinary Course of Business under the Company’s Loan and Security Agreement with Xxxxxx Financial, Inc., or become liable in respect of any Guarantee, other than any Debt or any Guarantee between APC and its respective wholly-owned Subsidiaries; (iiid) mortgaged Created or pledged an APC Asset suffered the imposition of any Lien upon any assets, whether tangible or subjected any APC Asset to any Lienintangible, of the Company; (ivi) made any change in its authorized or issued capital stock or granted or issued any option, purchase right, convertible stock, other sort of security or registration right, or purchased, redeemed or retired any shares or other securities, or declared or made any Distribution (other than distributions or contributions in connection with an increase in or the repayment or cancellation (in whole or in part) of Debt or intercompany advances between APC and its respective wholly-owned Subsidiaries); (v) soldSold, leased to others or otherwise disposed of any of its assets, (ii) entered into any Contractual Obligation relating to (A) the APC Assets except purchase of any capital stock of or interest in any Person, (B) the Ordinary Course purchase of Business and except for such assets as were not, individually or in the aggregate, material to APC; (vi) purchased any Equity Security issued by any Person other than ones issued by a Subsidiary of APC, or any assets material in amount or constituting a business or line of business, or been party to (C) any merger, consolidation or other business combination or entered into any Contractual Obligation relating to any such purchasecombination, merger, consolidation or business combination; (vii) made any loan, advance or capital contribution to or investment in any Person other than loans, advances or capital contributions to or investments in or to APC or any of APC's wholly-owned Subsidiaries and other than loans or advances made in the Ordinary Course of Business which are not material either singly or in the aggregate; (viiiiii) canceled or compromised any Debt or claim (other than in the Ordinary Course compromises of Business and other than any Debt, intercompany advances or claim between APC and its respective wholly-owned Subsidiaries; (ix) sold, transferred, licensed or otherwise disposed of any Intellectual Property other than accounts receivable in the Ordinary Course of Business; ), (x) made or agreed to make any material change in its customary methods of accounting or accounting practices; (xi) engaged in or become obligated in respect of any transaction with PHL, Holdings or any of their Affiliates; (xiiiv) waived or released or permitted to lapse any right of material substantial value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or property, whether or not covered by insurance; (xiiiv) instituted, settled or agreed to settle any material Action; or; (xiv) consented or agreed to do any of the foregoing. (c) Neither APC nor any of its Subsidiaries has (i) had any material change in its relationships with its employees, producers, agents, independent contractors, insurance carriers, customers, referral sources or suppliers, or (ii) made Made any changes in the rate of Compensation payable (or paid or agreed in writing or orally promised to pay, conditionally or otherwise, any extra Compensation) to of any director, officer, manager, employee, produceror consultant to, consultant or agent (other than of the Company, except for changes granted in the Ordinary Course of Business to the compensation of Persons other than directors and consistent officers of the Company, or (ii) paid or agreed to pay any extra Compensation to any such Person (including, without limitation, any such payments to be made in connection with past practice, which changes will not have a Material Adverse Effectand/or from the proceeds of the transactions contemplated hereby); (dg) There has been no amendment of Submitted any material provision of bids or proposals to any Equity Security issued third party with respect to the Business, or entered into any material contracts, commitments or agreements; (h) Suffered any material damage, destruction or loss (whether or not covered by APC or insurance) to any of its Subsidiariesassets, whether tangible or intangible; (ei) Neither APC nor Made any change in its customary methods of its Subsidiaries has entered accounting or accounting practices, pricing policies or payment or credit practices, or failed to pay any creditor any amount owed to such creditor when due, or granted any extensions of credit other than in the Ordinary Course of Business (it being understood that the consummation of the Reorganization required the Company to change from a cash method to an accrual method of accounting for income tax purposes); (j) Made any Distributions; (k) Entered into any Contractual Obligation (and PHL, Sellers and their Affiliates have not entered into any Contractual Obligation obligating APC or any of its Subsidiaries) to do any of the things referred to in clauses (a) through (di) above with respect to APC, any of the Subsidiaries of APC or the APC Businessabove; and (fl) No Suffered or incurred any Material Adverse Effect has occurred with respect to APC and its SubsidiariesEffect, nor any event or events which in the aggregate will have a Material Adverse Effect.

Change in Condition. Since February 28, 1999: From the Balance Sheet Date through the date of this Agreement (a) The APC Business no event, occurrence, development or change has been conducted occurred that has had a Material Adverse Effect, and (b) the Company and its Subsidiaries have in all material respects only conducted the Business in the Ordinary Course ordinary course of Business (except as may be otherwise required by the terms of this Agreement), and without business consistent with past practice. Without limiting the generality of the foregoing, APC since the Balance Sheet Date to and its Subsidiaries have made capital expenditures only in including the Ordinary Course date of Business; (b) Neither APC this Agreement, neither the Company nor any of its Subsidiaries has: (i) made amended its Organizational Documents or taken any capital expenditure greater than $50,000 except for expenditures for repairs and maintenance in the Ordinary Course action with respect to any such amendment or adopted or carried out any plan of Businesscomplete or partial liquidation or dissolution; (ii) incurred authorized, issued, pledged, encumbered, sold, granted or otherwise disposed of any shares of capital stock, units, membership, or other equity or profits interests of any kind in the Company or any of its Subsidiaries (including any warrants, options, convertible or exchangeable securities, subscriptions, rights (including any pre-emptive or similar rights), calls or other rights to purchase or acquire any capital stock, units, membership, or other equity or profits interests of any kind in the Company or any of its Subsidiaries) or entered into any agreement with respect thereto or made any changes (by recapitalization, reclassification, stock dividend, stock split, combination, reorganization or otherwise) in the capital structure of, the Company or any of its Subsidiaries; (iii) (A) made any declaration or payment of or set aside funds for any dividend or other distribution, payable in cash, assets, equity interests, property or otherwise, or made any other payment on or with respect to its Units or made any distribution of property to any Person (other than to the Company or any of its Subsidiaries) or (B) repurchased, redeemed, or otherwise acquired any of its equity or debt securities; (iv) become liable in respect of any guarantee of Indebtedness for Borrowed Money or incurred, assumed or otherwise become liable in respect of any Debt Indebtedness for Borrowed Money (other than in the ordinary course of business); (A) merged or become liable in respect consolidated with any Person, (B) acquired by merging or consolidating with, or by purchasing a substantial portion of the equity interests or assets of, any Person or division thereof or otherwise acquired or licensed any assets, properties or equity interests outside of the ordinary course of business or (C) made any loans, capital contributions or advances of any Guaranteemoney or other property to, or made any investment in, any Person; (vi) created any Lien (other than Permitted Liens) over any of its material assets or sold, leased, licensed, sublicensed, assigned, transferred, divested, canceled, abandoned, disposed of or allowed to lapse or expire any Company Permits, licenses, operations, rights, product lines, businesses, or interests therein of the Company or any of its Subsidiaries that are material to the Business (other than sales of inventory in the ordinary course of business); (vii) entered into, assumed, assigned, canceled, terminated, renewed, modified, released or amended, in whole or in part, any of its rights or interests under any Company Contract (other than in the ordinary course of business), or contract that would be a Company Contract if in effect on the date hereof, or assigned, compromised, released or waived any rights thereunder, or entered into any Contract outside of the ordinary course of business; (viii) paid, discharged or satisfied any material liabilities, other than in the ordinary course of business, or waived, cancelled or assigned any Debt claims or any Guarantee between APC and its respective wholly-owned Subsidiariesrights of substantial value, other than in the ordinary course of business; (iiiix) mortgaged suffered any material loss, destruction, damage or pledged an APC Asset eminent domain taking (in each case, whether or subjected not insured) affecting any APC Asset to any Lienmaterial asset; (ivx) made any material capital expenditure (or material series of related capital expenditures) other than pursuant to the Company’s capital expenditure budget, a copy of which has been made available to Parent prior to the date hereof; (xi) (A) increased any benefits under any Company Plan or Foreign Company Multiemployer Group Benefit Plan or increased the compensation payable or paid, whether conditionally or otherwise, to any employee, officer, director or consultant of the Company or its Subsidiaries (other than any increase adopted in the ordinary course of business or any increase in benefits or compensation required pursuant to applicable Legal Requirements or the terms of an existing Company Plan or Foreign Company Multiemployer Group Benefit Plan or an existing employment, consulting, indemnification, change of control, severance or similar agreement with any current or former director, officer, employee, independent contractor or consultant), (B) accelerated the vesting or payment of any compensation or benefit to any current or former employee, officer, director, independent contractor or consultant, (C) hired or promoted any Person, other than in the ordinary course of business, (D) terminated or demoted any Person, other than in the ordinary course of business, or (E) adopted, modified or terminated any Company Plan or commenced or terminated participation in a Foreign Company Multiemployer Group Benefit Plan or arrangement that would be a Company Plan if in effect on the date of this Agreement (other than as required under applicable Legal Requirements or the terms of the applicable Company Plan or Foreign Company Multiemployer Group Benefit Plan); (xii) made any change in its authorized or issued capital stock or granted or issued any option, purchase right, convertible stock, other sort of security or registration right, or purchased, redeemed or retired any shares or other securities, or declared or made any Distribution (other than distributions or contributions in connection with an increase in or the repayment or cancellation (in whole or in part) of Debt or intercompany advances between APC and its respective wholly-owned Subsidiaries); (v) sold, leased to others or otherwise disposed of any of the APC Assets except in the Ordinary Course of Business and except for such assets as were not, individually or in the aggregate, material to APC; (vi) purchased any Equity Security issued by any Person other than ones issued by a Subsidiary of APC, or any assets material in amount or constituting a business or line of business, or been party to any merger, consolidation or other business combination or entered into any Contractual Obligation relating to any such purchase, merger, consolidation or business combination; (vii) made any loan, advance or capital contribution to or investment in any Person other than loans, advances or capital contributions to or investments in or to APC or any of APC's wholly-owned Subsidiaries and other than loans or advances made in the Ordinary Course of Business which are not material either singly or in the aggregate; (viii) canceled or compromised any Debt or claim other than in the Ordinary Course of Business and other than any Debt, intercompany advances or claim between APC and its respective wholly-owned Subsidiaries; (ix) sold, transferred, licensed or otherwise disposed of any Intellectual Property other than in the Ordinary Course of Business; (x) made or agreed to make any material change in its customary methods of accounting or accounting practices; (xi) engaged in practices other than changes required by GAAP or become obligated in respect of any transaction with PHL, Holdings or any of their Affiliates; (xii) waived or released or permitted to lapse any right of material value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or property, whether or not covered by insuranceGovernmental Authorities; (xiii) institutedmade, changed or revoked any Tax election, changed any Tax accounting method or period, filed any amended Tax Return, taken any position, made any election, or adopted any method that is inconsistent with positions taken, elections made or methods used in prior periods, settled or agreed compromised any claim with respect to settle Taxes, entered into an agreement with respect to Taxes, requested any material Action; orruling or similar guidance with respect to Taxes, or surrendered any right to a Tax refund; (xiv) consented settled or agreed to do compromised any pending or threatened Action (A) involving an amount individually in excess of the foregoing. (c) Neither APC nor any of its Subsidiaries has (i) had any material change in its relationships with its employees, producers, agents, independent contractors, insurance carriers, customers, referral sources $250,000 or suppliers, or (ii) made any changes in the rate aggregate in excess of Compensation payable ($1,000,000 or paid the imposition of injunctive or agreed in writing or orally promised to pay, conditionally or otherwise, any extra Compensation) to any director, officer, manager, employee, producer, consultant or agent (other than changes granted in equitable relief against the Ordinary Course of Business and consistent with past practice, which changes will not have a Material Adverse Effect); (d) There has been no amendment of any material provision of any Equity Security issued by APC Company or any of its Subsidiaries;, or (B) that would otherwise by material to the Company and its Subsidiaries, taken as a whole; or (exv) Neither APC nor any of its Subsidiaries has authorized, entered into any Contractual Obligation (and PHL, Sellers and their Affiliates have not entered into Contract or make any Contractual Obligation obligating APC or any of its Subsidiaries) legally binding commitment to do any of the things referred to in clauses (aSections 3.13(i) through (d3.13(xiv) above with respect to APC, any of the Subsidiaries of APC or the APC Business; and (f) No Material Adverse Effect has occurred with respect to APC and its Subsidiariesabove.

Change in Condition. Since February 28From and after the Balance Sheet Date to and ------------------- including the date hereof, 1999: (a) The APC the Company has conducted its Business has been conducted in all material respects only in the Ordinary Course of Business (and has maintained the value of its Business as a going concern and, except as may be otherwise required by the terms of this Agreement)set forth on Schedule 4.12, its relationships with customers, distributors, suppliers, vendors, employees, agents and without others. Without limiting the generality of the foregoing, APC except as set forth on Schedule 4.12, which matters have not had and its Subsidiaries will not have made capital expenditures only in the Ordinary Course of Businessaggregate a Material Adverse Effect, since the Balance Sheet Date the Company has not: (a) Entered into any transaction otherwise than on an arms' length basis or any transaction with any Existing Stockholder or any Affiliate thereof; (b) Neither APC nor any of its Subsidiaries has: (i) made Made any capital expenditure greater than in excess of $50,000 except for expenditures for repairs and maintenance 100,000 individually or $500,000 in the Ordinary Course of Businessaggregate; (iic) incurred Incurred or otherwise become liable in respect of any Debt Debt, except for borrowings in the Ordinary Course of Business under the Loan Agreement, or become liable in respect of any Guarantee, other than any Debt or any Guarantee between APC and its respective wholly-owned Subsidiaries; (iiid) mortgaged Created or pledged an APC Asset suffered the imposition of any Lien (other than capital leases, which will not have in the aggregate a Material Adverse Effect) upon any assets, whether tangible or subjected any APC Asset to any Lienintangible, of the Company; (ivi) made any change in its authorized or issued capital stock or granted or issued any option, purchase right, convertible stock, other sort of security or registration right, or purchased, redeemed or retired any shares or other securities, or declared or made any Distribution (other than distributions or contributions in connection with an increase in or the repayment or cancellation (in whole or in part) of Debt or intercompany advances between APC and its respective wholly-owned Subsidiaries); (v) soldSold, leased to others or otherwise disposed of any of its assets, (ii) entered into any Contractual Obligation relating to (A) the APC Assets except purchase of any capital stock of or interest in any Person, (B) the Ordinary Course purchase of Business and except for such assets as were not, individually or in the aggregate, material to APC; (vi) purchased any Equity Security issued by any Person other than ones issued by a Subsidiary of APC, or any assets material in amount or constituting a business or line of business, or been party to (C) any merger, consolidation or other business combination or entered into any Contractual Obligation relating to any such purchasecombination, merger, consolidation or business combination; (vii) made any loan, advance or capital contribution to or investment in any Person other than loans, advances or capital contributions to or investments in or to APC or any of APC's wholly-owned Subsidiaries and other than loans or advances made in the Ordinary Course of Business which are not material either singly or in the aggregate; (viiiiii) canceled or compromised any Debt or claim (other than compromises of accounts receivable in the Ordinary Course of Business), (iv) waived or released any right of substantial value or (v) instituted, settled or agreed to settle any material Action; (i) Made any changes in the rate of Compensation of any director, officer, employee, or consultant to, or agent of the Company, except for changes in the Ordinary Course of Business and to the compensation of Persons other than directors and officers of the Company, or (ii) paid or agreed to pay any Debtextra Compensation to any such Person (including, intercompany advances or claim between APC and its respective wholly-owned Subsidiarieswithout limitation, any such payments to be made in connection with and/or from the proceeds of the transactions contemplated hereby); (ixg) soldSuffered any material damage, transferreddestruction or loss (whether or not covered by insurance) to any of its assets, licensed whether tangible or otherwise disposed intangible; (h) Made any change in its customary methods of accounting or accounting practices, pricing policies or payment or credit practices, or failed to pay any Intellectual Property creditor any amount owed to such creditor when due, or granted any extensions of credit other than in the Ordinary Course of Business; (xi) made or agreed to make Made any material change in its customary methods of accounting or accounting practicesDistributions; (xij) engaged in or become obligated in respect of any transaction with PHL, Holdings or any of their Affiliates; (xii) waived or released or permitted to lapse any right of material value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or property, whether or not covered by insurance; (xiii) instituted, settled or agreed to settle any material Action; or (xiv) consented or agreed to do any of the foregoing. (c) Neither APC nor any of its Subsidiaries has (i) had any material change in its relationships with its employees, producers, agents, independent contractors, insurance carriers, customers, referral sources or suppliers, or (ii) made any changes in the rate of Compensation payable (or paid or agreed in writing or orally promised to pay, conditionally or otherwise, any extra Compensation) to any director, officer, manager, employee, producer, consultant or agent (other than changes granted in the Ordinary Course of Business and consistent with past practice, which changes will not have a Material Adverse Effect); (d) There has been no amendment of any material provision of any Equity Security issued by APC or any of its Subsidiaries; (e) Neither APC nor any of its Subsidiaries has entered Entered into any Contractual Obligation (and PHL, Sellers and their Affiliates have not entered into any Contractual Obligation obligating APC or any of its Subsidiaries) to do any of the things referred to in clauses (a) through (dh) above with respect to APC, any of the Subsidiaries of APC or the APC Businessabove; and (fk) No Suffered or incurred any Material Adverse Effect has occurred with respect to APC and its SubsidiariesEffect, nor any event or events which in the aggregate will have a Material Adverse Effect.

Change in Condition. Since February 28Except for the matters set forth in Section 3.3 of the Company Disclosure Letter, 1999since March 31, 2002: (a) The APC Company Business has been conducted in all material respects only in the Ordinary Course of Business (except as may be otherwise permitted or required by the terms of this Agreement), and without limiting the generality of the foregoing, APC the Company and its Subsidiaries have made capital expenditures only in the Ordinary Course of Business; (b) Neither APC Other than in the Ordinary Course of Business, neither the Company nor any of its Subsidiaries has: (i) made any capital expenditure greater than $50,000 except for expenditures for repairs and maintenance in the Ordinary Course of Business; (ii) incurred or otherwise become liable in respect of any Debt or become liable in respect of any Guarantee, other than any Debt or any Guarantee between APC the Company and its respective wholly-owned Subsidiaries; (iiiii) mortgaged or pledged an APC a Company Asset or subjected any APC Company Asset to any Lien; (iviii) made any change in its authorized or issued capital stock or membership interests or granted or issued any option, purchase right, convertible stock, other sort of security Equity Security or registration right, or purchased, redeemed or retired any shares or other securitiesEquity Securities, or declared or made any Distribution (other than distributions or contributions in connection with an increase in or Distribution, the repayment or cancellation (in whole or in part) effect of Debt or intercompany advances between APC which would be to reduce the Company's and its respective wholly-owned Subsidiaries)' Tangible Net Worth below zero; (viv) sold, leased to others or otherwise disposed of any of the APC Assets except in the Ordinary Course of Business and except for such assets as were not, individually or in the aggregate, material to APCCompany Asset; (viv) purchased any Equity Security issued by of any Person other than ones issued by of a direct or indirect wholly-owned Subsidiary of APCthe Company, or any assets material in amount or constituting a business or line of businessamount, or been party to any merger, consolidation or other business combination or entered into any Enforceable Contractual Obligation relating to any such purchase, merger, consolidation or business combination; (viivi) made any loan, advance or capital contribution to or investment in any Person other than loans, advances or capital contributions to or investments in or to APC the Company or any of APCthe Company's respective wholly-owned Subsidiaries and other than loans or advances made in the Ordinary Course of Business which are not material either singly or in the aggregate; (viiivii) canceled or compromised any Debt or claim other than in the Ordinary Course of Business and other than any Debt, intercompany advances or claim between APC and its respective wholly-owned Subsidiaries; (ixviii) sold, transferred, licensed or otherwise disposed of any Intellectual Property other than in the Ordinary Course of BusinessProperty; (xix) made or agreed to make any material change in its customary methods of accounting or accounting practices; (xix) engaged in or become obligated in respect of any transaction with PHL, Holdings any Seller or any Affiliate of their Affiliatesany Seller; (xiixi) waived or released or permitted to lapse any right of material value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or property, whether or not covered by insurance; (xiiixii) instituted, settled or agreed to settle any material Action; (xiii) amended its Charter or Bylaws; or (xiv) consented or agreed to do any of the foregoing. (c) Neither APC Except in the Ordinary Course of Business, neither the Company nor any of its Subsidiaries has (i) had any material change in its relationships with its employees, producers, agents, independent contractors, insurance carriers, customers, referral sources or suppliers, or (ii) made any changes in the rate of Compensation payable (or paid or agreed in writing or orally promised to pay, conditionally or otherwise, any extra Compensation) to any director, officer, manager, employee, producer, consultant or agent (other than changes granted in the Ordinary Course of Business and consistent with past practice, which changes will not have a Material Adverse Effect)agent; (d) There has been no amendment of any material provision of any Equity Security issued by APC of the Company or any of its Subsidiaries; (e) Neither APC the Company nor any of its Subsidiaries has entered into any Enforceable Contractual Obligation (and PHL, Sellers and their Affiliates have not entered into any Enforceable Contractual Obligation obligating APC the Company or any of its Subsidiaries) to do any of the things referred to in clauses (a) through (d) above with respect to APCthe Company, any of the Subsidiaries of APC the Company or the APC Company Business; and (f) No Material Adverse Effect has occurred with respect to APC the Company and its Subsidiaries.

Change in Condition. Since February 28, 1999Except for the matters set forth in the Disclosure Letter: (a) The APC Since August 31, 2007, the Business has been conducted in all material respects only in the Ordinary Course of Business (except as may be otherwise required permitted by the terms of this Agreement)) and, and without limiting the generality of the foregoing, APC and its Subsidiaries have M&M has only made capital expenditures only in the Ordinary Course of Business; (b) Neither APC nor any of its Subsidiaries hasSince August 31, 2007, M&M has not: (i) made any capital expenditure greater than $50,000 except for expenditures for repairs and maintenance in the Ordinary Course of Business; (ii) incurred or otherwise become liable in respect of any Debt or become liable in respect of any Guarantee, other than any Debt or any Guarantee between APC and its respective wholly-owned Subsidiaries; (iiiii) mortgaged or pledged an APC any Asset or subjected any APC Asset to any Lien; (iv) made any change in its authorized or issued capital stock or granted or issued any option, purchase right, convertible stock, other sort of security or registration right, or purchased, redeemed or retired any shares or other securities, or declared or made any Distribution (other than distributions or contributions in connection with an increase in or the repayment or cancellation (in whole or in part) of Debt or intercompany advances between APC and its respective wholly-owned Subsidiaries); (viii) sold, leased to others or otherwise disposed of any of the APC Assets except in the Ordinary Course of Business and except for such assets as were not, individually or in the aggregate, material to APCAsset; (viiv) purchased any Equity Security issued by of any Person other than ones issued by a Subsidiary of APCPerson, or any assets material in amount or constituting a business or line of business, or been party to any merger, consolidation or other business combination or entered into any Contractual Obligation Contract (or non-binding letter of intent) relating to any such purchase, merger, consolidation or business combination; (viiv) made any loan, advance or capital contribution to or investment in any other Person other than loans, advances or capital contributions to or investments in or to APC or any of APC's wholly-owned Subsidiaries and other than loans or advances made in the Ordinary Course of Business which are not material either singly or in the aggregate; (viiivi) canceled or compromised any Debt or claim other than in the Ordinary Course of Business and other than Business, excluding any Debt, intercompany advances Debt which may be retired or claim between APC and its respective wholly-owned Subsidiariessatisfied according to the terms of this Agreement; (ixvii) sold, transferred, licensed or otherwise disposed of any Intellectual Property other than in the Ordinary Course of Business; (xviii) made or agreed to make any material change in its customary accounting methods of or practices (including Tax accounting or accounting methods and practices); (xiix) engaged in or become obligated in respect of any transaction with PHL, Holdings any Affiliate of M&M or any of their Affiliatesthe Shareholder; (xiix) waived or released or permitted to lapse any right of material value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or propertyAsset, whether or not covered by insurance; (xiiixi) instituted, settled or agreed to settle any material Action; or (xivxii) consented amended its Charter or agreed to do any of the foregoing.Bylaws; (c) Neither APC nor any of its Subsidiaries Since August 31, 2007, M&M has not: (i) had had, to the Knowledge of M&M or the Shareholder, any material change in its relationships with its employees, producersEmployees, agents, independent contractors, insurance carriers, customers, referral sources or suppliers, or suppliers materially adverse to the Business; (ii) made any changes in the rate of Compensation payable (or paid or agreed in writing or orally promised to pay, conditionally or otherwise, pay any extra Compensation) to any director, officer, manager, employee, producerEmployee, consultant or agent (other than changes increases granted in the Ordinary Course of Business and consistent Business); (iii) adopted, amended, modified or terminated any Plan or Benefit Arrangement or entered into any plan, program or arrangement that, if in effect as of the date hereof, would be a Plan or Benefit Arrangement; (iv) adopted, approved, ratified or entered into any collective bargaining agreement, side letter, memorandum of understanding or similar agreement with past practice, which changes will not have a Material Adverse Effect)any labor union covering the Employees; or (v) entered into any employment agreement on other than an “at will” basis or made any material change in employment terms for any Employee; (d) There Since August 31, 2007, there has been no amendment of any material provision of any Equity Security issued by APC or any of its SubsidiariesM&M; (e) Neither APC nor any of its Subsidiaries Since August 31, 2007, M&M has entered into any Contractual Obligation (and PHL, Sellers and their Affiliates have not entered into any Contractual Obligation obligating APC or any of its Subsidiaries) Contract to do any of the things referred to in clauses (a) through (d) above with respect to APC, any of the Subsidiaries of APC it or the APC Business; and; (f) No Since August 31, 2007, no Material Adverse Effect has occurred with in respect of M&M; and (g) Since August 31, 2007, M&M has not: (i) made any capital expenditure greater than $10,000 except for expenditures for repairs and maintenance in the Ordinary Course of Business or to APC and retire or satisfy any Debt as required in this Agreement; or (ii) made any change in its Subsidiariesauthorized or issued Equity Securities or granted or issued any Equity Security or registration right, purchased, redeemed or retired any of its Equity Securities, or declared or made any Distribution.

Change in Condition. Since February 28Except for the matters set forth in Schedule 3.4 or in connection with the sale of all of the issued and outstanding capital stock of Hit or Miss, 1999Inc. or as contemplated by this Agreement, the Purchase Agreement or any other Closing Agreement, since July 29, 1995: (a) The APC Business business of Issuer has been conducted in all material respects only in the Ordinary Course ordinary course of Business (except as may be otherwise required by the terms of this Agreement), and without limiting the generality of the foregoing, APC and its Subsidiaries have made capital expenditures only in the Ordinary Course of Businessbusiness consistent with past practice; (b) Neither APC Issuer nor any of its Subsidiaries has, except in the ordinary course of business consistent with past practice: (i) made any capital expenditure greater than $50,000 except for expenditures for repairs and maintenance in the Ordinary Course of Business; (ii) incurred or otherwise become liable in respect of any Debt or become liable in respect of any Guarantee, other than any Debt or any Guarantee between APC Issuer and its respective wholly-wholly owned SubsidiariesSubsidiaries or between wholly owned Subsidiaries of Issuer; (iiiii) mortgaged or pledged an APC any Asset or subjected any APC material Asset to any Lien; (iviii) made any change in its authorized or issued capital stock or granted or issued any option, purchase right, convertible stock, other sort of security or registration right, or purchased, redeemed or retired any shares or other securities, or declared or made any Distribution (other than distributions or contributions (A) cash dividends on its capital stock in connection with an increase usual amounts, (B) repurchases of outstanding capital stock through Issuer's publicly announced share repurchase program and other repurchases not material in or the repayment or cancellation amount and (in whole or in partC) Distributions from any Subsidiary of Debt or intercompany advances between APC and its respective wholly-owned SubsidiariesIssuer to Issuer); (viv) sold, leased to others or otherwise disposed of any of the APC its material Assets except in the Ordinary Course as contemplated by clause (iii) of Business and except for such assets as were not, individually or in the aggregate, material to APCthis Section 3.4(b)); (viv) purchased any a material amount of Equity Security issued by Securities of any Person other than ones issued by of a direct or indirect wholly owned Subsidiary of APCIssuer, or a material amount of assets (other than inventory) of any Person or assets material in amount or constituting a business or line of business, or been party to any merger, consolidation or other business combination or entered into any Contractual Obligation relating to any such purchase, merger, consolidation or business combination; (viivi) made any loan, advance or capital contribution to or investment in any Person material in amount other than loans, advances or capital contributions to or investments in or to APC or any of APC's wholly-its wholly owned Subsidiaries and other than loans or advances made to suppliers in the Ordinary Course ordinary course of Business which are not material either singly or in the aggregatebusiness; (viiivii) canceled or compromised any Debt or claim in any material amount other than in the Ordinary Course those between Issuer and a wholly owned Subsidiary or between wholly owned Subsidiaries of Business and other than Issuer or owed by Issuer or any Debt, intercompany advances or claim between APC and its respective wholly-wholly owned Subsidiaries; Subsidiary of Issuer; (ixviii) sold, transferred, licensed or otherwise disposed of any Intellectual Property other than in the Ordinary Course of Businessmaterial intellectual or intangible property rights; (x) made or agreed to make any material change in its customary methods of accounting or accounting practices; (xi) engaged in or become obligated in respect of any transaction with PHL, Holdings or any of their Affiliates; (xii) waived or released or permitted to lapse any right of material value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or property, whether or not covered by insurance; (xiii) instituted, settled or agreed to settle any material Action; or (xiv) consented or agreed to do any of the foregoing. (c) Neither APC nor any of its Subsidiaries has (i) had any material change in its relationships with its employees, producers, agents, independent contractors, insurance carriers, customers, referral sources or suppliers, or (ii) made any changes in the rate of Compensation payable (or paid or agreed in writing or orally promised to pay, conditionally or otherwise, any extra Compensation) to any director, officer, manager, employee, producer, consultant or agent (other than changes granted in the Ordinary Course of Business and consistent with past practice, which changes will not have a Material Adverse Effect); (d) There has been no amendment of any material provision of any Equity Security issued by APC or any of its Subsidiaries; (e) Neither APC nor any of its Subsidiaries has entered into any Contractual Obligation (and PHL, Sellers and their Affiliates have not entered into any Contractual Obligation obligating APC or any of its Subsidiaries) to do any of the things referred to in clauses (a) through (d) above with respect to APC, any of the Subsidiaries of APC or the APC Business; and (f) No Material Adverse Effect has occurred with respect to APC and its Subsidiaries.

Change in Condition. Since February 28Except as set forth in Section 3.2(h) of the Disclosure Schedule, 1999: (a) The APC since the Latest Balance Sheet Date, the Business has been conducted in all material respects only in the Ordinary Course of Business (except as may be otherwise required by the terms of this Agreement), and without limiting the generality of the foregoing, APC and its Subsidiaries have made capital expenditures only in the Ordinary Course of Business; (b) Neither APC nor , except in connection with any process relating to the transactions contemplated herein, including entering into this Agreement, and there have not been any of its Subsidiaries hasthe following: (i) made any capital expenditure greater than $50,000 except for expenditures for repairs and maintenance in the Ordinary Course of Business; (ii) incurred or otherwise become liable in respect of any Debt or become liable in respect of any Guarantee, other than any Debt or any Guarantee between APC and its respective wholly-owned Subsidiaries; (iii) mortgaged or pledged an APC Asset or subjected any APC Asset to any Lien; (iv) made any change in its authorized or issued capital stock or granted or issued any option, purchase right, convertible stock, other sort of security or registration right, or purchased, redeemed or retired any shares or other securities, or declared or made any Distribution (other than distributions or contributions in connection with an increase in or the repayment or cancellation (in whole or in part) of Debt or intercompany advances between APC and its respective wholly-owned Subsidiaries); (v) sold, leased to others or otherwise disposed of any of the APC Assets except in the Ordinary Course of Business and except for such assets as were notMaterial Adverse Effect, individually or in the aggregate, material to APC; (vi) purchased any Equity Security issued by any Person other than ones issued by a Subsidiary of APC, or any assets material in amount or constituting a business or line of business, or been party to any merger, consolidation or other business combination or entered into any Contractual Obligation relating to any such purchase, merger, consolidation or business combination; (vii) made any loan, advance or capital contribution to or investment in any Person other than loans, advances or capital contributions to or investments in or to APC or any of APC's wholly-owned Subsidiaries and other than loans or advances made in the Ordinary Course of Business which are not material either singly or in the aggregate; (viiiii) canceled any material change in the salaries or compromised other compensation payable or to become payable to, or any Debt advance (excluding advances for ordinary business expenses) or claim loan to, any employee, or material change or material addition to, or material modification of, other benefits (including any bonus, profit-sharing, pension or other plan in which any of the employees participate) to which any of the employees may be entitled, other than in any such case (A) in the Ordinary Course of Business and other than consistent with past practice, (B) as required by Law, or (C) as required by any Debtcollective bargaining agreement, intercompany advances or claim between APC and its respective wholly-owned Subsidiariesif any; (ixiii) soldany change by the Company or any of the Subsidiaries in their respective method of accounting or keeping its books of account or accounting practices except as required by GAAP; (iv) any sale, transferred, licensed transfer or otherwise disposed other disposition of any Intellectual Property other than assets, properties or right of the Company or any of the Subsidiaries, except in the Ordinary Course of Business. (v) declared, set aside or paid a dividend or made any other distribution with respect to any class of capital stock of the Company or any of the Subsidiaries; (vi) made any change or amendment in either the Company’s or any of the Subsidiaries’ organizational documents; (vii) (A) issued or sold any securities of the Company or any of the Subsidiaries; (B) acquired, directly or indirectly, by redemption or otherwise, any securities of the Company or any of the Subsidiaries; or (C) granted or entered into any options, warrants, calls or commitments of any kind with respect to any securities of the Company or any of the Subsidiaries; (viii) except in the Ordinary Course of Business, incurred any material Liabilities or discharged or satisfied any Lien on any material asset of the Company or any of the Subsidiaries, or paid any material Liabilities or failed to pay or discharge when due any material Liabilities of which the failure to pay or discharge has caused or will cause any material damage or risk of material loss to the Company or any of the Subsidiaries or their respective assets or properties; (ix) except in the Ordinary Course of Business, sold, assigned or transferred, or in any manner encumbered, any of the material assets or properties of the Company or any of the Subsidiaries; or (x) made or agreed to make suffered any amendment or termination of, or caused a lapse of, any material change in its customary methods of accounting or accounting practices; (xi) engaged in or become obligated in respect of any transaction with PHL, Holdings Contract or any of their Affiliates; (xii) waived Permit to which the Company or released or permitted to lapse any right of material value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or property, whether or not covered by insurance; (xiii) instituted, settled or agreed to settle any material Action; or (xiv) consented or agreed to do any of the foregoing. (c) Neither APC nor any of its Subsidiaries has (i) had any material change in its relationships with its employees, producers, agents, independent contractors, insurance carriers, customers, referral sources or suppliers, or (ii) made any changes in the rate of Compensation payable (or paid or agreed in writing or orally promised to pay, conditionally or otherwise, any extra Compensation) to any director, officer, manager, employee, producer, consultant or agent (other than changes granted in the Ordinary Course of Business and consistent with past practice, which changes will not have a Material Adverse Effect); (d) There has been no amendment of any material provision of any Equity Security issued by APC or any of its Subsidiaries; (e) Neither APC nor any of its Subsidiaries has entered into any Contractual Obligation (and PHL, Sellers and their Affiliates have not entered into any Contractual Obligation obligating APC or any of its Subsidiaries) to do any of the things referred to in clauses (a) through (d) above with respect to APC, any of the Subsidiaries of APC is a party or the APC Business; and (f) No Material Adverse Effect has occurred with respect to APC and its Subsidiariesby which it is bound.

Change in Condition. Since February 28From and after the Balance Sheet Date to and including the date hereof, 1999: (a) The APC the Company has conducted its Business has been conducted in all material respects only in the Ordinary Course of Business (and has maintained the value of its Business as a going concern and, except as may be otherwise required by the terms of this Agreement)set forth on Schedule 4.12, its relationships with customers, distributors, suppliers, vendors, employees, agents and without others. Without limiting the generality of the foregoing, APC except as set forth on Schedule 4.12, which matters have not had and its Subsidiaries will not have made capital expenditures only in the Ordinary Course of Businessaggregate a Material Adverse Effect, since the Balance Sheet Date the Company has not: (a) Entered into any transaction otherwise than on an arms’ length basis or any transaction with any Existing Stockholder or any Affiliate thereof; (b) Neither APC nor any of its Subsidiaries has: (i) made Made any capital expenditure greater than in excess of $50,000 except for expenditures for repairs and maintenance 100,000 individually or $500,000 in the Ordinary Course of Businessaggregate; (iic) incurred Incurred or otherwise become liable in respect of any Debt Debt, except for borrowings in the Ordinary Course of Business under the Loan and Security Agreement dated as of December 13, 2000, between Kenexa Financial, Inc. and Citicorp USA, or become liable in respect of any Guarantee, other than any Debt or any Guarantee between APC and its respective wholly-owned Subsidiaries; (iiid) mortgaged Created or pledged an APC Asset suffered the imposition of any Lien (other than capital leases not in excess of $100,000) upon any assets, whether tangible or subjected any APC Asset to any Lienintangible, of the Company; (ivi) made any change in its authorized or issued capital stock or granted or issued any option, purchase right, convertible stock, other sort of security or registration right, or purchased, redeemed or retired any shares or other securities, or declared or made any Distribution (other than distributions or contributions in connection with an increase in or the repayment or cancellation (in whole or in part) of Debt or intercompany advances between APC and its respective wholly-owned Subsidiaries); (v) soldSold, leased to others or otherwise disposed of any of its Assets, (ii) entered into any Contractual Obligation relating to (A) the APC Assets except purchase by the Company of any capital stock of or interest in the Ordinary Course of Business and except for such assets as were not, individually or in the aggregate, material to APC; (vi) purchased any Equity Security issued by any Person (other than ones issued purchases by a Subsidiary the Company from terminated employees), (B) the purchase of APC, or any assets material in amount or constituting a business or line of business, or been party to (C) any merger, consolidation or other business combination or entered into any Contractual Obligation relating to any such purchasecombination, merger, consolidation or business combination; (vii) made any loan, advance or capital contribution to or investment in any Person other than loans, advances or capital contributions to or investments in or to APC or any of APC's wholly-owned Subsidiaries and other than loans or advances made in the Ordinary Course of Business which are not material either singly or in the aggregate; (viiiiii) canceled or compromised any Debt or claim (other than compromises of accounts receivable in the Ordinary Course of Business), (iv) waived or released any right of substantial value or (v) instituted, settled or agreed to settle any material Action; (i) Made any changes in the rate of Compensation of any director, officer, employee, or consultant to, or agent of the Company, except for changes in the Ordinary Course of Business and to the compensation of Persons other than directors and officers of the Company, or (ii) paid or agreed to pay any Debtextra Compensation to any such Person (including, intercompany advances without limitation, any such payments to be made in connection with and/or from the proceeds of the transactions contemplated hereby or claim between APC and its respective wholly-owned Subsidiariesby the other Transaction Documents); (ixg) soldSuffered any material damage, transferreddestruction or loss (whether or not covered by insurance) to any of its Assets; (h) Made any change in its customary methods of accounting or accounting practices, licensed pricing policies or otherwise disposed payment or credit practices, or failed to pay any creditor any amount owed to such creditor when due, or granted any extensions of any Intellectual Property credit other than in the Ordinary Course of Business; (xi) made or agreed to make Made any material change in its customary methods of accounting or accounting practicesDistributions; (xij) engaged in or become obligated in respect of any transaction with PHL, Holdings or any of their Affiliates; (xii) waived or released or permitted to lapse any right of material value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or property, whether or not covered by insurance; (xiii) instituted, settled or agreed to settle any material Action; or (xiv) consented or agreed to do any of the foregoing. (c) Neither APC nor any of its Subsidiaries has (i) had any material change in its relationships with its employees, producers, agents, independent contractors, insurance carriers, customers, referral sources or suppliers, or (ii) made any changes in the rate of Compensation payable (or paid or agreed in writing or orally promised to pay, conditionally or otherwise, any extra Compensation) to any director, officer, manager, employee, producer, consultant or agent (other than changes granted in the Ordinary Course of Business and consistent with past practice, which changes will not have a Material Adverse Effect); (d) There has been no amendment of any material provision of any Equity Security issued by APC or any of its Subsidiaries; (e) Neither APC nor any of its Subsidiaries has entered Entered into any Contractual Obligation (and PHL, Sellers and their Affiliates have not entered into any Contractual Obligation obligating APC or any of its Subsidiaries) to do any of the things referred to in clauses (a) through (di) above with respect to APC, any of the Subsidiaries of APC or the APC Businessabove; and (fk) No Suffered or incurred any Material Adverse Effect has occurred with respect to APC and its SubsidiariesEffect, nor any event or events which in the aggregate will have a Material Adverse Effect.

Change in Condition. Since February 28Except for the matters set forth in Schedule 3.4 or in connection with the sale of all of the issued and outstanding capital stock of Hit or Miss, 1999Inc. or as contemplated by this Agreement, the Purchase Agreement or any other Closing Agreement, since July 29, 1995: (a) The APC Business business of Issuer has been conducted in all material respects only in the Ordinary Course ordinary course of Business (except as may be otherwise required by the terms of this Agreement), and without limiting the generality of the foregoing, APC and its Subsidiaries have made capital expenditures only in the Ordinary Course of Businessbusiness consistent with past practice; (b) Neither APC Issuer nor any of its Subsidiaries has, except in the ordinary course of business consistent with past practice: (i) made any capital expenditure greater than $50,000 except for expenditures for repairs and maintenance in the Ordinary Course of Business; (ii) incurred or otherwise become liable in respect of any Debt or become liable in respect of any Guarantee, other than any Debt or any Guarantee between APC Issuer and its respective wholly-wholly owned SubsidiariesSubsidiaries or between wholly owned Subsidiaries of Issuer; (iiiii) mortgaged or pledged an APC any Asset or subjected any APC material Asset to any Lien; (iviii) made any change in its authorized or issued capital stock or granted or issued any option, purchase right, convertible stock, other sort of security or registration right, or purchased, redeemed or retired any shares or other securities, or declared or made any Distribution (other than distributions or contributions (A) cash dividends on its capital stock in connection with an increase usual amounts, (B) repurchases of outstanding capital stock through Issuer's publicly announced share repurchase program and other repurchases not material in or the repayment or cancellation amount and (in whole or in partC) Distributions from any Subsidiary of Debt or intercompany advances between APC and its respective wholly-owned SubsidiariesIssuer to Issuer); (viv) sold, leased to others or otherwise disposed of any of the APC its material Assets except in the Ordinary Course as contemplated by clause (iii) of Business and except for such assets as were not, individually or in the aggregate, material to APCthis Section 3.4(b)); (viv) purchased any a material amount of Equity Security issued by Securities of any Person other than ones issued by of a direct or indirect wholly owned Subsidiary of APCIssuer, or a material amount of assets (other than inventory) of any Person or assets material in amount or constituting a business or line of business, or been party to any merger, consolidation or other business combination or entered into any Contractual Obligation relating to any such purchase, merger, consolidation or business combination; (viivi) made any loan, advance or capital contribution to or investment in any Person material in amount other than loans, advances or capital contributions to or investments in or to APC or any of APC's wholly-its wholly owned Subsidiaries and other than loans or advances made to suppliers in the Ordinary Course ordinary course of Business which are not material either singly or in the aggregatebusiness; (viiivii) canceled or compromised any Debt or claim in any material amount other than in the Ordinary Course those between Issuer and a wholly owned Subsidiary or between wholly owned Subsidiaries of Business and other than Issuer or owed by Issuer or any Debt, intercompany advances or claim between APC and its respective wholly-wholly owned SubsidiariesSubsidiary of Issuer; (ixviii) sold, transferred, licensed or otherwise disposed of any Intellectual Property other than in the Ordinary Course of Businessmaterial intellectual or intangible property rights; (x) made or agreed to make any material change in its customary methods of accounting or accounting practices; (xi) engaged in or become obligated in respect of any transaction with PHL, Holdings or any of their Affiliates; (xiiix) waived or released or permitted to lapse any right of material value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or property, whether or not covered by insurance;value; or (xiiix) instituted, settled or agreed to settle any material Action; or (xiv) consented or agreed to do any of the foregoing.; (c) Neither APC Issuer nor any of its Subsidiaries has (i) had any material change in its relationships with its employees, producers, agents, independent contractors, insurance carriers, customers, referral sources customers or suppliers, or (ii) made any changes in the rate of Compensation payable (or paid or agreed in writing or orally promised except as has not and could not reasonably be expected to pay, conditionally or otherwise, any extra Compensation) to any director, officer, manager, employee, producer, consultant or agent (other than changes granted in the Ordinary Course of Business and consistent with past practice, which changes will not have a Material Adverse Effect); (d) There Except for Employee Securities, there has been no amendment of any material provision of any Equity Security issued by APC or any of its SubsidiariesIssuer; (e) Neither APC Issuer nor any of its Subsidiaries Affiliates has entered into any Contractual Obligation (and PHL, Sellers and their Affiliates have not entered into any Contractual Obligation obligating APC or any of its Subsidiaries) to do any of the things referred to in clauses (a) through (d) above with respect to APC, any of the Subsidiaries of APC or the APC Businessabove; and (f) No Material Adverse Effect on Issuer has occurred with respect to APC and its Subsidiariesoccurred.

Change in Condition. Since February 283.11.1. From and after the Balance Sheet Date to and including the date hereof, 1999: (a) The APC the Company has conducted the Business has been conducted in all material respects only in the Ordinary Course of Business (except as may be otherwise required by the terms of this Agreement), and without Business. Without limiting the generality of the foregoing, APC since the Balance Sheet Date to and its Subsidiaries have including the date hereof, no Target Company has: 3.11.1.1. entered into any transaction with any Affiliate (other than another Target Company), or made capital expenditures only any Distribution/Payment; 3.11.1.2. incurred, assumed, guaranteed or discharged any Debt, claim, commitment, obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, except for Debt incurred in the Ordinary Course of BusinessBusiness that does not exceed $250,000 in the aggregate; (b) Neither APC nor 3.11.1.3. created or suffered the imposition of any Lien upon the assets or Intangible of its Subsidiaries has: (i) made any capital expenditure greater than $50,000 the Target Companies, except for expenditures for repairs and maintenance in the Ordinary Course of BusinessPermitted Liens; (ii) incurred 3.11.1.4. terminated, cancelled, materially modified or otherwise become liable in respect received any notice of termination of any Debt or become liable Contract (except any termination in respect accordance with the terms of any Guarantee, other than any Debt or any Guarantee between APC and its respective wholly-owned Subsidiaries; (iii) mortgaged or pledged an APC Asset or subjected any APC Asset to any Lien; (iv) made any change in its authorized or issued capital stock or granted or issued any option, purchase right, convertible stock, other sort of security or registration right, or purchased, redeemed or retired any shares or other securities, or declared or made any Distribution (other than distributions or contributions in connection with an increase in or the repayment or cancellation (in whole or in part) of Debt or intercompany advances between APC and its respective wholly-owned Subsidiariessuch Contract); 3.11.1.5. (va) sold, leased to others others, licensed, assigned, allowed to lapse or expire or otherwise disposed of any of the APC its Assets except in the Ordinary Course of Business and except for such assets as were not, individually or in the aggregate, material to APC; (vi) purchased any Equity Security issued by any Person other than ones issued by a Subsidiary of APC, or any assets material in amount or constituting a business or line of business, or been party to any merger, consolidation or other business combination or entered into any Contractual Obligation relating to any such purchase, merger, consolidation or business combination; (vii) made any loan, advance or capital contribution to or investment in any Person other than loans, advances or capital contributions to or investments in or to APC or any of APC's wholly-owned Subsidiaries and other than loans or advances made in the Ordinary Course of Business which are not material either singly or in the aggregate; (viii) canceled or compromised any Debt or claim other than in the Ordinary Course of Business and other than any Debt, intercompany advances or claim between APC and its respective wholly-owned Subsidiaries; (ix) sold, transferred, licensed or otherwise disposed of any Intellectual Property Intangibles other than in the Ordinary Course of Business; , (xb) made entered into any Contractual Obligation relating to (i) the purchase of material assets or agreed Intangibles or (ii) any merger, consolidation or other business combination, (c) cancelled or compromised any Debt payable to make any material change the Company or claim of the Company (other than compromises of accounts receivable in its customary methods the Ordinary Course of accounting or accounting practices; Business), (xi) engaged in or become obligated in respect of any transaction with PHL, Holdings or any of their Affiliates; (xiid) waived or released or permitted to lapse any right of material value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or property, whether or not covered by insurance; (xiiie) instituted, settled or agreed to settle any material Action; orAction or related Action in excess of $100,000; 3.11.1.6. (xiv) consented or agreed to do any of the foregoing. (c) Neither APC nor any of its Subsidiaries has (i) had any material change in its relationships with its employees, producers, agents, independent contractors, insurance carriers, customers, referral sources or suppliers, or (iia) made any changes increase in the rate of Compensation payable or level of employee benefits of any director, officer or employee of a Target Company, except for changes in the Ordinary Course of Business, or (or b) paid or agreed to pay any Compensation in writing connection with the Contemplated Transactions; 3.11.1.7. made any change in its methods of accounting or orally promised to pay, conditionally or otherwise, any extra Compensation) to any director, officer, manager, employee, producer, consultant or agent (accounting practices other than changes granted as required by GAAP; 3.11.1.8. made capital expenditure or entered into any commitments therefore except in the Ordinary Course of Business and consistent with past practice, which changes will not have a Material Adverse Effect)or set forth on Schedule 3.11.1.8; (d) There has been no amendment 3.11.1.9. entered into or adopted a plan or agreement of complete or partial liquidation, dissolution, consolidation, reorganization, restructuring or recapitalization or entered into any material provision new, or discontinued any existing, line of any Equity Security issued by APC or any of its Subsidiariesbusiness; (e) Neither APC nor any of its Subsidiaries has 3.11.1.10. entered into any Contractual Obligation (and PHL, Sellers and their Affiliates have not with any sales representative except in the Ordinary Course of Business; 3.11.1.11. entered into any Contractual Obligation obligating APC or any of its Subsidiaries) to do any of the things referred to in clauses 3.11.1 through 3.11.10 above; or 3.11.1.12. suffered any material damage, destruction or loss (awhether or not covered by insurance) through (d) above with respect to APC, any of its assets, whether tangible or intangible. 3.11.2. Since August 31, 2012 to and including the Subsidiaries of APC or the APC Business; and (f) No date hereof, there has not occurred any Material Adverse Effect has occurred with respect to APC and its SubsidiariesEffect.

Change in Condition. Since February 28From and after the Balance Sheet Date to and ------------------- including the date hereof, 1999: (a) The APC the Company has conducted its Business has been conducted in all material respects only in the Ordinary Course of Business (and has maintained the value of its Business as a going concern and, except as may be otherwise required by the terms of this Agreement)set forth on Schedule 4.12, its relationships with customers, distributors, suppliers, vendors, employees, agents and without others. Without limiting the generality of the foregoing, APC except as set forth on Schedule 4.12, which matters have not had and its Subsidiaries will not have made capital expenditures only in the Ordinary Course of Businessaggregate a Material Adverse Effect, since the Balance Sheet Date the Company has not: (a) Entered into any transaction otherwise than on an arms' length basis or any transaction with any Existing Stockholder or any Affiliate thereof (other than the Xxxxxxx Redemption Agreement and the Xxxxxxxx Redemption Agreement); (b) Neither APC nor any of its Subsidiaries has: (i) made Made any capital expenditure greater than in excess of $50,000 except for expenditures for repairs and maintenance 100,000 individually or $500,000 in the Ordinary Course of Businessaggregate; (iic) incurred Incurred or otherwise become liable in respect of any Debt Debt, except for borrowings in the Ordinary Course of Business under the Company's Loan and Security Agreement with Xxxxxx Financial, Inc., or become liable in respect of any Guarantee, other than any Debt or any Guarantee between APC and its respective wholly-owned Subsidiaries; (iiid) mortgaged Created or pledged an APC Asset suffered the imposition of any Lien upon any assets, whether tangible or subjected any APC Asset to any Lienintangible, of the Company; (ivi) made any change in its authorized or issued capital stock or granted or issued any option, purchase right, convertible stock, other sort of security or registration right, or purchased, redeemed or retired any shares or other securities, or declared or made any Distribution (other than distributions or contributions in connection with an increase in or the repayment or cancellation (in whole or in part) of Debt or intercompany advances between APC and its respective wholly-owned Subsidiaries); (v) soldSold, leased to others or otherwise disposed of any of its assets, (ii) entered into any Contractual Obligation relating to (A) the APC Assets except purchase of any capital stock of or interest in any Person, (B) the Ordinary Course purchase of Business and except for such assets as were not, individually or in the aggregate, material to APC; (vi) purchased any Equity Security issued by any Person other than ones issued by a Subsidiary of APC, or any assets material in amount or constituting a business or line of business, or been party to (C) any merger, consolidation or other business combination or entered into any Contractual Obligation relating to any such purchasecombination, merger, consolidation or business combination; (vii) made any loan, advance or capital contribution to or investment in any Person other than loans, advances or capital contributions to or investments in or to APC or any of APC's wholly-owned Subsidiaries and other than loans or advances made in the Ordinary Course of Business which are not material either singly or in the aggregate; (viiiiii) canceled or compromised any Debt or claim (other than in the Ordinary Course compromises of Business and other than any Debt, intercompany advances or claim between APC and its respective wholly-owned Subsidiaries; (ix) sold, transferred, licensed or otherwise disposed of any Intellectual Property other than accounts receivable in the Ordinary Course of Business; ), (x) made or agreed to make any material change in its customary methods of accounting or accounting practices; (xi) engaged in or become obligated in respect of any transaction with PHL, Holdings or any of their Affiliates; (xiiiv) waived or released or permitted to lapse any right of material substantial value except in the Ordinary Course of Business or suffered any material damage to or material destruction or loss of any material asset or property, whether or not covered by insurance; (xiiiv) instituted, settled or agreed to settle any material Action; or; (xiv) consented or agreed to do any of the foregoing. (c) Neither APC nor any of its Subsidiaries has (i) had any material change in its relationships with its employees, producers, agents, independent contractors, insurance carriers, customers, referral sources or suppliers, or (ii) made Made any changes in the rate of Compensation payable (or paid or agreed in writing or orally promised to pay, conditionally or otherwise, any extra Compensation) to of any director, officer, manager, employee, produceror consultant to, consultant or agent (other than of the Company, except for changes granted in the Ordinary Course of Business to the compensation of Persons other than directors and consistent officers of the Company, or (ii) paid or agreed to pay any extra Compensation to any such Person (including, without limitation, any such payments to be made in connection with past practice, which changes will not have a Material Adverse Effectand/or from the proceeds of the transactions contemplated hereby); (dg) There has been no amendment of Submitted any material provision of bids or proposals to any Equity Security issued third party with respect to the Business, or entered into any material contracts, commitments or agreements; (h) Suffered any material damage, destruction or loss (whether or not covered by APC or insurance) to any of its Subsidiariesassets, whether tangible or intangible; (ei) Neither APC nor Made any change in its customary methods of its Subsidiaries has entered accounting or accounting practices, pricing policies or payment or credit practices, or failed to pay any creditor any amount owed to such creditor when due, or granted any extensions of credit other than in the Ordinary Course of Business (it being understood that the consummation of the Reorganization required the Company to change from a cash method to an accrual method of accounting for income tax purposes); (j) Made any Distributions; (k) Entered into any Contractual Obligation (and PHL, Sellers and their Affiliates have not entered into any Contractual Obligation obligating APC or any of its Subsidiaries) to do any of the things referred to in clauses (a) through (di) above with respect to APC, any of the Subsidiaries of APC or the APC Businessabove; and (fl) No Suffered or incurred any Material Adverse Effect has occurred with respect to APC and its SubsidiariesEffect, nor any event or events which in the aggregate will have a Material Adverse Effect.