Common use of Company Interim Operations Clause in Contracts

Company Interim Operations. Except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted hereby, without the prior written consent of Purchaser, such consent not to be unreasonably withheld or delayed, from the date hereof until the Effective Time, the Company shall, and shall cause each of the Company Subsidiaries to, conduct its business in all material respects in the ordinary course consistent with past practice and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) continue to make capital expenditures in accordance with the capital expenditure budget previously disclosed to Purchaser and (iii) maintain in effect all material foreign, federal, state and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits that are required for the Company or any Company Subsidiary to carry on its business as currently conducted. Without limiting the generality of the foregoing, except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted by this Agreement, from the date hereof until the Effective Time, without the prior written consent of Purchaser, such consent not to be unreasonably withheld or delayed, the Company shall not, nor shall it permit any Company Subsidiary to: (a) amend its certificate of incorporation, by-laws or equivalent organizational documents; (b) split, combine or reclassify any capital stock of the Company or declare or pay any dividend (whether in cash, stock or property or any combination thereof) in respect of any Company Common Stock or any other capital stock of the Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any Company equity or equity related securities, except for repurchases from former employees and consultants in accordance with the terms of agreements in effect on the date hereof; (c) issue, deliver, dispose of or sell or authorize the issuance, delivery, disposal or sale of, any capital stock of the Company of any class or series or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock or any such convertible or exchangeable securities (including the granting of any additional Options); (d) except as set forth in Section 4.01(d) of the Company Disclosure Schedule, amend any term of any outstanding security of the Company or any Company Subsidiary; (e) other than in connection with transactions permitted by Section 4.01(f), incur any capital expenditures or any obligations or liabilities in respect thereof, except for those (i) contemplated by the capital expenditure budget for the Company and the Company Subsidiaries, (ii) incurred in the ordinary course of business of the Company and the Company Subsidiaries or (iii) not otherwise described in clauses (i) and/or (ii) which, in the aggregate, do not exceed $500,000; (f) except as set forth in the Company Disclosure Schedule corresponding to this Section 4.01(f), acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or a series of related transactions (i) any assets (including any equity interests) having a fair market value in excess of $1 million or (ii) all or substantially all of the equity interests of any Person or any business or division of any Person having a fair market value in excess of $1 million; (g) sell, lease, encumber or otherwise dispose of any assets, other than sales in the ordinary course of business consistent with past practice of assets with a value, individually or in the aggregate, that do not exceed $500,000 and sales related to discontinued operations; (h) incur (which shall not be deemed to include entering into credit agreements, lines of credit or similar arrangements until the Company or any Company Subsidiary becomes liable with respect to any indebtedness for borrowed money or guarantees thereof under such arrangements) any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any Company Subsidiary or guarantee any debt securities of others, except (i) in the ordinary course of business consistent with past practice (which shall include, without limitation, borrowings under existing credit facilities of the Company or the Company Subsidiaries) or (ii) in an aggregate amount not to exceed $1 million; (i) except in the ordinary course of business consistent with past practice, amend, modify or terminate any material contract, agreement or arrangement of the Company or any Company Subsidiary, or otherwise waive, release or assign any material rights, claims or benefits of the Company or any Company Subsidiary thereunder; (j) except in accordance with the terms of this Agreement, amend or modify any Affiliate Contract; (k) enter into any Contract that would constitute a Material Contract or an Affiliate Contract had such Contract been in effect on the date hereof; (i) except in the ordinary course of business or as required by law or an agreement, policy or arrangement existing on the date hereof, increase the amount of compensation of any director of the Company or officer of the Company or make any increase in or commitment to increase any employee health, welfare or retirement benefits, (ii) except as required by law or an agreement, policy or arrangement existing on the date hereof, grant any severance or termination pay or rights to any director, officer or employee of the Company or any Company Subsidiary, (iii) adopt any additional Company Employee Plan or, except in the ordinary course of business or as required by law, make any contribution to any existing such plan or (iv) except as may be required by law, amend in any material respect any Company Employee Plan; (m) change the Company’s (x) methods of accounting in effect as of the date of the Company Balance Sheet, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants or (y) fiscal year; (n) settle or compromise any Action for which the Company has liability in an amount in excess of $500,000 with respect to any individual Action or $2 million in the aggregate; (o) change any method of Tax accounting, make or change any Tax election, file any amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund; (p) order any “plant closing” or “mass layoff”, as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988, as amended, or other similar state or local law; or (q) agree, resolve or commit to do any of the foregoing; provided that the limitations set forth in clauses Section 4.01(a) through Section 4.01(q) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or between any of the Company Subsidiaries.

Company Interim Operations. Except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted hereby, without the prior written consent of Purchaser, such Acquiror (which consent shall not to be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct its their business in all material respects in the ordinary course consistent with past practice and shall use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) continue to make capital expenditures in accordance with the capital expenditure budget previously disclosed to Purchaser and (iii) maintain in effect all material foreign, federal, state and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits that are required for the Company or any Company Subsidiary of its Subsidiaries to carry on its business as currently conductedand (iii) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted by this Agreement, from the date hereof until the Effective Time, without the prior written consent of Purchaser, such Acquiror (which consent shall not to be unreasonably withheld or delayed), the Company shall not, nor shall it permit any Company Subsidiary of its Subsidiaries to: (a) amend its certificate the Company's or any Company Subsidiary's articles of incorporation, incorporation or by-laws or equivalent organizational documents; (b) split, combine combine, subdivide, redeem or reclassify any shares of capital stock of the Company or declare declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Company Common Stock or any other its capital stock of the Companystock, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase repurchase, or otherwise acquire any Company equity or equity related of its securities, except for repurchases from former employees and consultants in accordance with the terms of agreements in effect on the date hereof; (c) issue, deliver, dispose of or sell or authorize the issuance, delivery, disposal or sale of, any capital stock of the Company of any class or series or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock or any such convertible or exchangeable securities (including the granting of any additional Options); (d) except as set forth in Section 4.01(d) of the Company Disclosure Schedule, amend any term of any outstanding security of the Company or any Company Subsidiary; (e) other than in connection with transactions permitted by Section 4.01(f), incur any capital expenditures or any obligations or liabilities in respect thereof, except for those (i) contemplated by the capital expenditure budget for the regular quarterly cash dividends (having customary record and payment dates not in excess of $0.22 per Company and the Company SubsidiariesShare, (ii) incurred in the ordinary course of business of the Company and the for regular dividends by wholly owned Company Subsidiaries or (iii) not otherwise described in clauses (i) and/or (ii) which, in the aggregate, do not exceed $500,000; (f) except as set forth in the Company Disclosure Schedule corresponding to this Section 4.01(f), acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or a series of related transactions (i) any assets (including any equity interests) having a fair market value in excess of $1 million or (ii) all or substantially all of the equity interests existing terms of any Person or any business or division of any Person having a fair market value in excess of $1 million; (g) sell, lease, encumber or otherwise dispose of any assets, other than sales in the ordinary course of business consistent with past practice of assets with a value, individually or in the aggregate, that do not exceed $500,000 and sales related to discontinued operations; (h) incur (which shall not be deemed to include entering into credit agreements, lines of credit or similar arrangements until the Company or any Company Subsidiary becomes liable with respect to any indebtedness for borrowed money or guarantees thereof award under such arrangements) any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any Company Subsidiary or guarantee any debt securities of others, except (i) in the ordinary course of business consistent with past practice (which shall include, without limitation, borrowings under an existing credit facilities of the Company or the Company Subsidiaries) or (ii) in an aggregate amount not to exceed $1 million; (i) except in the ordinary course of business consistent with past practice, amend, modify or terminate any material contract, agreement or arrangement of the Company or any Company Subsidiary, or otherwise waive, release or assign any material rights, claims or benefits of the Company or any Company Subsidiary thereunder; (j) except in accordance with the terms of this Agreement, amend or modify any Affiliate Contract; (k) enter into any Contract that would constitute a Material Contract or an Affiliate Contract had such Contract been in effect on the date hereof; (i) except in the ordinary course of business or as required by law or an agreement, policy or arrangement existing on the date hereof, increase the amount of compensation of any director of the Company or officer of the Company or make any increase in or commitment to increase any employee health, welfare or retirement benefits, (ii) except as required by law or an agreement, policy or arrangement existing on the date hereof, grant any severance or termination pay or rights to any director, officer or employee of the Company or any Company Subsidiary, (iii) adopt any additional Company Employee Plan or, except in the ordinary course of business or as required by law, make any contribution to any existing such plan or (iv) except as may be required by law, amend in any material respect any Company Employee Plan; (m) change the Company’s (x) methods of accounting in effect as of the date of the Company Balance Sheet, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants or (y) fiscal year; (n) settle or compromise any Action for which the Company has liability in an amount in excess of $500,000 with respect to any individual Action or $2 million in the aggregate; (o) change any method of Tax accounting, make or change any Tax election, file any amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund; (p) order any “plant closing” or “mass layoff”, as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988, as amended, or other similar state or local law; or (q) agree, resolve or commit to do any of the foregoing; provided that the limitations set forth in clauses Section 4.01(a) through Section 4.01(q) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or between any of the Company Subsidiaries.

Company Interim Operations. Except as set forth in Section 4.01 of the Company Disclosure Schedule corresponding to this Section 5.01 or as otherwise expressly contemplated or permitted hereby, without the prior written consent of Purchaser, such consent not to be unreasonably withheld or delayed, from the date hereof until the Recapitalization Effective Time, the Company shall, and shall cause each of the Company Subsidiaries to, conduct its business in all material respects in the ordinary course consistent with past practice and shall use commercially reasonable efforts to to: (i) preserve intact its present business organization, rights and other assets and relationships with third parties; and (ii) continue to make capital expenditures in accordance with the capital expenditure budget previously disclosed to Purchaser and (iii) maintain in effect all material foreign, federal, state and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits Permits that are required for the Company or any Company Subsidiary to carry on its business as currently conducted. Without limiting the generality of the foregoing, except as set forth in Section 4.01 of the Company Disclosure Schedule corresponding to this Section 5.01 or as otherwise expressly contemplated or permitted by this Agreement, from the date hereof until the Recapitalization Effective Time, without the prior written consent of Purchaser, such consent not to be unreasonably withheld or delayed, the Company shall not, nor shall it permit any Company Subsidiary to: (a) amend its certificate of incorporation, formation or limited liability company agreement or certificate of incorporation or by-laws or equivalent other organizational documents, as the case may be; (b) split, combine or reclassify any capital stock Company Common Units or other membership interests of the Company or declare declare, issue, make or pay any dividend distribution (whether in cash, stock or property or any combination thereof) in respect of any Company Common Stock Units or any other capital stock of membership interests in the Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any Company equity or equity related securities, except for repurchases from former employees and consultants in accordance with the terms of agreements in effect on the date hereof; (c) split, combine or reclassify any shares of the capital stock of Team or any other Company Subsidiary or declare, issue, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Team Common Shares or any other Team capital stock or any shares of capital stock of any other Company Subsidiary (other than dividends paid by any wholly-owned Company Subsidiary to the Company or another wholly-owned Company Subsidiary), or redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any equity or equity related securities of Team or any other Company Subsidiary, except for repurchases of equity in Team from former employees and consultants in accordance with the terms of agreements in effect on the date hereof and set forth on Schedule 5.01(c); (d) issue, deliver, dispose of or sell or authorize the issuance, delivery, disposal or sale of, any capital stock Company Common Units or other membership interests of the Company of any class or series or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock units or other membership interests or any such convertible or exchangeable securities (including the granting of any additional Options); (de) except as set forth in Section 4.01(d) issue, deliver, dispose of or sell or authorize the issuance, delivery, disposal or sale of, any shares of capital stock of Team or any other Company Disclosure Schedule, amend any term Subsidiary of any outstanding security of the Company class or series or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock of Team or any other Company Subsidiary; Subsidiary or any such convertible or exchangeable securities (e) including the granting of any additional Options), other than in connection with transactions permitted the issuance of the Team Common Shares upon the exercise of the Team Options outstanding on the date hereof; (f) pledge or agree to pledge any stock owned by Section 4.01(f)it in any of the Company Subsidiaries, other than pursuant to the Senior Credit Agreement or the documents contemplated thereby; (g) incur any capital expenditures or any obligations or liabilities in respect thereof, except for those (iA) incurred in 2005 which, in the aggregate, do not exceed $12 million, including those contemplated by the 2005 capital expenditure budget for the Company and the Company Subsidiaries, which budget is included in or attached to the Company Disclosure Schedule or (iiB) incurred in the ordinary course of business of the Company and the Company Subsidiaries or (iii) not otherwise described in clauses (i) and/or (ii) 2006 which, in the aggregate, do not exceed $500,0003.0 million; (fh) except as set forth in the Company Disclosure Schedule corresponding to this Section 4.01(f), acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or a series of related transactions (i) any assets (including any equity interests) having a fair market value in excess of $1 million or (ii) all or substantially all of the assets or equity interests of any Person or any business or division of any Person Person, in any case having a fair market value or involving consideration in excess of $1 million1.0 million with respect to all such transactions in the aggregate; (gi) sell, lease, license, encumber or otherwise dispose of any assetsmaterial assets or properties, other than sales (A) in the ordinary course of business consistent with past practice of assets with a valueor (B) transactions not otherwise described in clause (A) which, individually or in the aggregate, that do not exceed $500,000 and sales related to discontinued operations2.0 million; (hj) incur (which shall not be deemed to include entering into credit agreements, lines of credit or similar arrangements until the Company or assume any Company Subsidiary becomes liable with respect to any indebtedness for borrowed money or guarantees thereof under such arrangements) any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any Company Subsidiary or guarantee any debt securities of others, Indebtedness except (i) in the ordinary course of business consistent with past practice (which shall include, without limitation, include borrowings under the existing revolving credit facilities of the Company or the Company its Subsidiaries) or (ii) in an aggregate amount not to and which does not, as of each month’s end and as of the Closing Date, exceed $1 million5 million in the aggregate; (ik) except in the ordinary course of business consistent with past practice, amend, modify modify, or terminate any material contract, agreement or arrangement of the Company or any Company SubsidiaryMaterial Contract, or otherwise discharge, waive, release or assign any material rights, claims or benefits of the Company or any Company Subsidiary thereunderSubsidiary; (jl) except in accordance with the terms of this Agreement, amend or modify any Affiliate Contract; provided that the Company and the Company Subsidiaries may renew any of the Contracts referenced on Schedule 8.03 of the Company Disclosure Schedule; (km) enter into any Contract that would constitute a Material Contract or an Affiliate Contract had such Contract been in effect on the date hereof; (i) except in the ordinary course of business consistent with past practice or as required by law Law or an agreement, policy or arrangement a Contract existing on the date hereof, increase the amount of compensation of any director of the Company or officer of the Company or make any increase in or commitment to increase any employee health, welfare welfare, fringe or retirement benefits, ; (ii) except as required by law Law or an agreement, policy or arrangement existing on the date hereof, loan or advance any money or other property to any current or former officer or director of the Company or any of its Subsidiaries, loan or advance any money or other property to any other employee of the Company or any of its Subsidiaries in an individual amount exceeding $50,000, or grant any severance or termination pay or rights to any director, officer or employee of the Company or any Company Subsidiary, ; (iii) except in the ordinary course of business consistent with past practice or as required by Law, adopt any additional Company Employee Plan or Company Compensation Commitment or, except in the ordinary course of business consistent with past practice or as required by lawLaw, make any contribution to any existing such plan or plan; (iv) except in the ordinary course of business consistent with past practice or as may be required by lawLaw, amend in any material respect any Company Employee Plan; Plan or increase the funding obligation or contribution rate of any Company Employee Plan subject to Title IV of ERISA, other than as required by Law; or (mv) change except for the Company’s (x) methods acceleration of accounting vesting referenced in effect as of the date Section 3.09 of the Company Balance SheetDisclosure Schedule or pursuant to Section 5.09 of this Agreement, except as required by changes in GAAP or by Regulation S-X accelerate the vesting of the Exchange Act, as concurred in by its independent public accountants or (y) fiscal year; (n) settle or compromise any Action for which the Company has liability in an amount in excess of $500,000 with respect to any individual Action or $2 million in the aggregateOption; (o) except as required by Law, change any method of Tax accounting, make or change any Tax election, file any amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund; (p) order (A) change in any material respect the Company’s methods of accounting in effect as of the date of the Team Balance Sheet, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, or (B) change in the Company’s fiscal year; (q) effectuate a “plant closing” or “mass layoff”, ” as those terms are defined in the Worker Workers Adjustment and Retraining Notification Act of 1988, as amended, or any similar triggering event under state Law, affecting in whole or in part any site of employment, facility, operating unit or employee of the Company or any Company Subsidiary; (r) settle or compromise any material Action pursuant to which the Company pays, or becomes obligated to pay (net of insurance payments and recoveries), an amount in excess of $1 million; (s) make any loans or advances of borrowed money or capital contributions to, or equity investments in, any other similar state Person, other than (A) in connection with acquisitions permitted by Section 5.01(h) above and loans and advances permitted pursuant to Section 5.01(n)(ii), (B) in an aggregate amount not to exceed $500,000 or local law(C) payroll advances to employees and physicians in the ordinary course of business consistent with past practice and (B) the extension of trade credit to customers and suppliers in the ordinary course of business consistent with past practice; (t) enter into or adopt a plan or agreement of recapitalization, reorganization, merger or consolidation, or adopt a plan of complete or partial liquidation or dissolution; or (qu) cause any Insurance Policy to be cancelled or terminated other than in the ordinary course of business consistent with past practice; (v) terminate the employment of Xx. Xxxx Xxxxxxxxxx or take any action that would reasonably be expected to, prior to the Recapitalization Effective Time, constitute “Good Reason” under his employment agreement with Team, as amended through the date hereof; or (w) agree, resolve resolve, authorize or commit to do any of the foregoing; provided that the limitations set forth in clauses Section 4.01(a5.01(a) through Section 4.01(q5.01(w) shall not apply to any action, transaction or event occurring exclusively between the Company and Company, Team or any Company wholly-owned Subsidiary of Team or between any of the Company Team’s wholly-owned Subsidiaries.

Company Interim Operations. Except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted herebyby any other provision of this Agreement, without the prior written consent of Purchaser, such consent Acquiror (which shall not to be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct its business in all material respects their respective businesses only in the ordinary and usual course consistent with past practice practice, and shall use commercially reasonable efforts best efforts, to (i) preserve intact its present business organization, (ii) continue to make capital expenditures in accordance with keep available the capital expenditure budget previously disclosed to Purchaser services of its key employees and those of each Company Subsidiary, and (iii) maintain in effect all preserve existing relationships with its material foreign, federal, state suppliers and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits that are required for other Persons with which the Company or any Company Subsidiary to carry on its has significant business as currently conductedrelationships. Without limiting the generality of the foregoing, and as an extension thereof, except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted by this Agreement, from the date hereof until the Effective Time, without the prior written consent of Purchaser, such consent Acquiror (which shall not to be unreasonably withheld or delayed), the Company shall notnot and shall not permit its Subsidiaries, nor shall it permit any Company Subsidiary directly or indirectly, to: (a) amend propose or adopt any change in its certificate Articles of incorporation, byIncorporation or By-laws (or equivalent organizational or governing documents); (b) (i) split, combine or reclassify any shares of capital stock or amend the terms of the any rights, warrants or options to acquire its securities, (ii) except for ordinary course dividends by a Company or declare Subsidiary, declare, set aside or pay any dividend (including, without limitation, an extraordinary dividend) or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Company Common Stock or any other capital stock of the Companyits Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase repurchase, or otherwise acquire any Company equity of its securities or equity related any rights, warrants or options to acquire its securities, except for repurchases from former employees and consultants in accordance with the terms of agreements in effect on the date hereof; (c) issue, deliver, dispose of sell, grant, pledge, encumber or sell transfer or authorize the issuance, delivery, disposal sale, grant, pledge, encumbrance or sale transfer of, any capital stock or agree to commit to issue, sell or deliver (whether through the issuance or granting of the Company of any class options, warrants, commitments, subscriptions, rights to purchase or series otherwise) its Equity Interests or any securities convertible into or exercisable forfor its Equity Interests, or any rightsother than the issuance of Company Shares pursuant to the exercise of Company Options outstanding on January 9, warrants or options to acquire, any such capital stock or any such convertible or exchangeable securities (including the granting of any additional Options)2005; (d) except as set forth in Section 4.01(d) of the Company Disclosure Schedule, amend any term of any outstanding security of the Company merge with or any Company Subsidiary; (e) other than in connection with transactions permitted by Section 4.01(f), incur any capital expenditures or any obligations or liabilities in respect thereof, except for those (i) contemplated by the capital expenditure budget for the Company and the Company Subsidiaries, (ii) incurred in the ordinary course of business of the Company and the Company Subsidiaries or (iii) not otherwise described in clauses (i) and/or (ii) which, in the aggregate, do not exceed $500,000; (f) except as set forth in the Company Disclosure Schedule corresponding to this Section 4.01(f), acquire (whether pursuant to by merger, consolidation, acquisition of stock or asset purchase assets, joint venture or otherwiseotherwise of a direct or indirect ownership interest or investment) in one transaction or a series of related transactions (i) any assets (including any equity interests) having a fair market value Person, for an aggregate consideration in excess of $1 million 5,000,000, any Equity Interests or (ii) other securities of any Person, any division or business of any Person or all or substantially all of the equity interests assets of any Person or any business or division of any Person having a fair market value in excess of $1 millionPerson; (ge) sell, lease, encumber or otherwise dispose of any assetsassets or securities with carrying value in excess of $3,750,000; (f) (i) (A) incur any indebtedness for borrowed money, except to fund operations of the business in the ordinary course consistent with past practice under the Company’s existing credit facility, (B) issue or sell any debt securities of the Company or any Company Subsidiary; (C) make any loans, advances or capital contributions to, or, except as permitted by Section 6.1(d), investments in, any other Person, other than sales in the ordinary course of business consistent with past practices, in no event in an aggregate principal amount in excess of $2,250,000, (D) assume, guarantee or endorse, or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person (other than obligations of Subsidiaries and the endorsements of negotiable instruments for collection in each such case in the ordinary course of business consistent with past practice), or (E) alter or amend in any way any compensation (including without limitation, any commission schedule) or other payments due to employees or independent contractors of the Company (other than, with respect to employees who are not officers or directors of the Company or any Company Subsidiary, increases in the ordinary course of business consistent with past practice of assets with a valueand that, individually or in the aggregate, that do will not exceed $500,000 and sales related to discontinued operations; (h) incur (which shall not be deemed to include entering into credit agreements, lines of credit result in a material increase in benefits or similar arrangements until the Company or any Company Subsidiary becomes liable with respect to any indebtedness for borrowed money or guarantees thereof under such arrangements) any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any Company Subsidiary or guarantee any debt securities of others, except (i) in the ordinary course of business consistent with past practice (which shall include, without limitation, borrowings under existing credit facilities of the Company or the Company Subsidiaries) or (ii) in an aggregate amount not to exceed $1 million; (i) except in the ordinary course of business consistent with past practice, amend, modify or terminate any material contract, agreement or arrangement compensation expense of the Company or any Company Subsidiary, ) or otherwise waive, release or assign any material rights, claims or benefits of the Company or any Company Subsidiary thereunder; (j) except in accordance with the terms of this Agreement, amend or modify any Affiliate Contract; (kii) enter into or materially amend any Contract that would constitute a Material Contract contract, agreement, commitment or an Affiliate Contract had such Contract been in arrangement to effect on any of the date hereoftransactions prohibited by this Section 6.1(f); (i) except in the ordinary course of business or as required by law Law or an any existing agreement, policy or arrangement existing on the date hereof, increase the amount of compensation of any director of the Company or officer of the Company or make any increase in or commitment to increase any employee health, welfare or retirement benefitsCompany Subsidiary, (ii) except as required by law Law, an agreement existing on the date hereof or an agreement, pursuant to a Company severance policy or arrangement existing on the date hereof, grant any severance or termination pay or rights to any director, officer employee, consultant, independent contractor or employee agent of the Company or any Company Subsidiary, (iii) adopt any additional Company Employee Plan oremployee benefit plan, except in the ordinary course of business or as required by law, make any contribution to any existing such plan or (iv) provide for the payment of any amounts as a result of the consummation of the transactions contemplated by this Agreement, (v) except as may be required by lawLaw or as necessary to comply with the terms of this Agreement, amend in any material respect any Company Employee PlanPlan or (vi) pay any bonuses except to the extent provided on Section 6.1(g) of the Company Disclosure Schedule; (mh) change authorize any single capital expenditure or any expenditures not in the Company’s (xordinary course of business in excess of $3,750,000 or aggregate capital expenditures and other expenditures not in the ordinary course of business in excess of $10,000,000, except as set forth on Section 6.1(h) methods of accounting in effect as of the date of the Company Balance SheetDisclosure Schedule; (i) make any changes in its accounting methods, principles or practices currently in effect, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, in each case as concurred in by its independent public accountants or (y) fiscal yearaccountants; (nj) settle or compromise any Action for which except as set forth on Section 6.1(j) of the Company has Disclosure Schedule, (i) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim, liability in or obligation for an amount in excess of $500,000 2,000,000 or (ii) settle, pay or discharge any claim against the Company with respect to or arising out of the transactions contemplated by this Agreement for an amount in excess of $2,000,000 in the aggregate; (k) (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method of accounting therein that is materially inconsistent with elections made, positions taken or methods of accounting used in preparing or filing similar returns in prior periods unless such position, election or method is required by changes in applicable Law, (ii) enter into any settlement or compromise of any material Tax liability, (iii) file any amended Company Return with respect to any individual Action material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax, (vi) surrender any right to claim a material Tax refund or (vii) give or request any waiver of a statute of limitation with respect to any Company Return; (i) make any expenditures or commitments for such expenditures in connection with the entry or proposed entry into any new line of business, or (ii) make any expenditures or commitments for such expenditures, in either case, in a material amount, in connection with the entry or proposed entry into any extension of an existing line of business not set forth on Section 6.1(l) of the Company Disclosure Schedule; (m) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the Merger); (n) grant any loan, advance, extensions of credit to current or former employees or forgiveness or deferral of any loans due from any employee, other than any loan, advance or extension of credit to a current employee in circumstances and in amounts consistent with past practice, in any event not to exceed $2 million 50,000 for any one employee and $250,000 in the aggregate; (o) change any method of Tax accounting, make effect new programs or change existing programs that relate to employment contracts, severance benefits, change in control benefits, bonuses, commissions, base salaries, phantom stock grants, incentive trips, prizes and awards, 401-(k) and pension benefits, vacation and PTO benefits, health and medical benefits or any Tax election, file other remuneration of any amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any closing agreement with respect kind to any material Tax employee, except as required by applicable Law and except for renewals of expiring health and welfare programs and except for replacing health and welfare programs with new programs, in each case having terms substantially the same as the program expired or surrender any right to claim a material Tax refundreplaced; (p) order enter into any “plant closing” contract or “mass layoff”, as those terms are defined agreement other than in the Worker Adjustment ordinary course of business consistent with past practices that would be material to the Company and Retraining Notification Act its Subsidiaries, taken as a whole; (q) amend, modify or waive in any material respects any right that is material to the Company under any Company Contract of 1988the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice; (r) take any action that would result in any representation or warranty of the Company contained in this Agreement which is qualified as amendedto materiality becoming untrue as of the Effective Time or any representation or warranty not so qualified becoming untrue in any material respect as of the Effective Time; (s) except as required by applicable Law or GAAP, revalue in any material respect any of its assets, including writing down the value of inventory in any material manner, or writing-off notes or accounts receivable in any material manner; (t) collect accounts receivable or satisfy accounts payable except in the ordinary course of business consistent with past practices; (u) alter through merger, liquidation, reorganization or restructuring or any other similar state fashion the corporate structure or local lawownership of any Company Subsidiary; (v) permit to lapse any registrations or applications for material Intellectual Property owned by the Company or its Subsidiaries; (w) sell, assign, license or encumber any material Intellectual Property of the Company or of any of the Company Subsidiaries, other than in the ordinary course of business, consistent with past practice; or (qx) agreeauthorize, resolve agree or commit to do any of the foregoing; provided that . Notwithstanding the limitations set forth in clauses Section 4.01(a) through Section 4.01(q) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or between any covenants of the Company Subsidiariesset forth above in this Section 6.1, cash on hand at the Company which is available as a source of funds to pay the Merger Consideration as contemplated by the Bank Commitment Letter may be used to repay indebtedness for money borrowed that would otherwise comprise indebtedness to be repaid pursuant to the Refinancing (as defined in the Bank Commitment Letter) that is then due in accordance with its original scheduled maturity or that may be prepaid without penalty or premium.

Company Interim Operations. Except as set forth in Section 4.01 of the Company Disclosure Schedule corresponding to this Section 5.01 or as otherwise expressly contemplated or permitted hereby, without the prior written consent of Purchaser, such consent not to be unreasonably withheld or delayed, from the date hereof until the Recapitalization Effective Time, the Company shall, and shall cause each of the Company Subsidiaries to, conduct its business in all material respects in the ordinary course consistent with past practice and shall use commercially reasonable efforts to to: (i) preserve intact its present business organization, rights and other assets and relationships with third parties; and (ii) continue to make capital expenditures in accordance with the capital expenditure budget previously disclosed to Purchaser and (iii) maintain in effect all material foreign, federal, state and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits Permits that are required for the Company or any Company Subsidiary to carry on its business as currently conducted. Without limiting the generality of the foregoing, except as set forth in Section 4.01 of the Company Disclosure Schedule corresponding to this Section 5.01 or as otherwise expressly contemplated or permitted by this Agreement, from the date hereof until the Recapitalization Effective Time, without the prior written consent of Purchaser, such consent not to be unreasonably withheld or delayed, the Company shall not, nor shall it permit any Company Subsidiary to: (a) amend its certificate of incorporation, formation or limited liability company agreement or certificate of incorporation or by-laws or equivalent other organizational documents, as the case may be; (b) split, combine or reclassify any capital stock Company Common Units or other membership interests of the Company or declare declare, issue, make or pay any dividend distribution (whether in cash, stock or property or any combination thereof) in respect of any Company Common Stock Units or any other capital stock of membership interests in the Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any Company equity or equity related securities, except for repurchases from former employees and consultants in accordance with the terms of agreements in effect on the date hereof; (c) split, combine or reclassify any shares of the capital stock of Team or any other Company Subsidiary or declare, issue, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Team Common Shares or any other Team capital stock or any shares of capital stock of any other Company Subsidiary (other than dividends paid by any wholly-owned Company Subsidiary to the Company or another wholly-owned Company Subsidiary), or redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any equity or equity related securities of Team or any other Company Subsidiary, except for repurchases of equity in Team from former employees and consultants in accordance with the terms of agreements in effect on the date hereof and set forth on Schedule 5.01(c); (d) issue, deliver, dispose of or sell or authorize the issuance, delivery, disposal or sale of, any capital stock Company Common Units or other membership interests of the Company of any class or series or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock units or other membership interests or any such convertible or exchangeable securities (including the granting of any additional Options); (de) except as set forth in Section 4.01(d) issue, deliver, dispose of or sell or authorize the issuance, delivery, disposal or sale of, any shares of capital stock of Team or any other Company Disclosure Schedule, amend any term Subsidiary of any outstanding security of the Company class or series or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock of Team or any other Company Subsidiary; Subsidiary or any such convertible or exchangeable securities (e) including the granting of any additional Options), other than in connection with transactions permitted the issuance of the Team Common Shares upon the exercise of the Team Options outstanding on the date hereof; (f) pledge or agree to pledge any stock owned by Section 4.01(f)it in any of the Company Subsidiaries, other than pursuant to the Senior Credit Agreement or the documents contemplated thereby; (g) incur any capital expenditures or any obligations or liabilities in respect thereof, except for those (iA) incurred in 2005 which, in the aggregate, do not exceed $12 million, including those contemplated by the 2005 capital expenditure budget for the Company and the Company Subsidiaries, which budget is included in or attached to the Company Disclosure Schedule or (iiB) incurred in the ordinary course of business of the Company and the Company Subsidiaries or (iii) not otherwise described in clauses (i) and/or (ii) 2006 which, in the aggregate, do not exceed $500,0003.0 million; (fh) except as set forth in the Company Disclosure Schedule corresponding to this Section 4.01(f), acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or a series of related transactions (i) any assets (including any equity interests) having a fair market value in excess of $1 million or (ii) all or substantially all of the assets or equity interests of any Person or any business or division of any Person Person, in any case having a fair market value or involving consideration in excess of $1 million1.0 million with respect to all such transactions in the aggregate; (gi) sell, lease, license, encumber or otherwise dispose of any assetsmaterial assets or properties, other than sales (A) in the ordinary course of business consistent with past practice of assets with a valueor (B) transactions not otherwise described in clause (A) which, individually or in the aggregate, that do not exceed $500,000 and sales related to discontinued operations2.0 million; (hj) incur (which shall not be deemed to include entering into credit agreements, lines of credit or similar arrangements until the Company or assume any Company Subsidiary becomes liable with respect to any indebtedness for borrowed money or guarantees thereof under such arrangements) any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any Company Subsidiary or guarantee any debt securities of others, Indebtedness except (i) in the ordinary course of business consistent with past practice (which shall include, without limitation, include borrowings under the existing revolving credit facilities of the Company or the Company its Subsidiaries) or (ii) in an aggregate amount not to and which does not, as of each month’s end and as of the Closing Date, exceed $1 million5 million in the aggregate; (ik) except in the ordinary course of business consistent with past practice, amend, modify modify, or terminate any material contract, agreement or arrangement of the Company or any Company SubsidiaryMaterial Contract, or otherwise discharge, waive, release or assign any material rights, claims or benefits of the Company or any Company Subsidiary thereunderSubsidiary; (jl) except in accordance with the terms of this Agreement, amend or modify any Affiliate Contract; provided that the Company and the Company Subsidiaries may renew any of the Contracts referenced on Schedule 8.03 of the Company Disclosure Schedule; (km) enter into any Contract that would constitute a Material Contract or an Affiliate Contract had such Contract been in effect on the date hereof; (i) except in the ordinary course of business consistent with past practice or as required by law Law or an agreement, policy or arrangement a Contract existing on the date hereof, increase the amount of compensation of any director of the Company or officer of the Company or make any increase in or commitment to increase any employee health, welfare welfare, fringe or retirement benefits, ; (ii) except as required by law Law or an agreement, policy or arrangement existing on the date hereof, loan or advance any money or other property to any current or former officer or director of the Company or any of its Subsidiaries, loan or advance any money or other property to any other employee of the Company or any of its Subsidiaries in an individual amount exceeding $50,000, or grant any severance or termination pay or rights to any director, officer or employee of the Company or any Company Subsidiary, ; (iii) except in the ordinary course of business consistent with past practice or as required by Law, adopt any additional Company Employee Plan or Company Compensation Commitment or, except in the ordinary course of business consistent with past practice or as required by lawLaw, make any contribution to any existing such plan or plan; (iv) except in the ordinary course of business consistent with past practice or as may be required by lawLaw, amend in any material respect any Company Employee Plan; Plan or increase the funding obligation or contribution rate of any Company Employee Plan subject to Title IV of ERISA, other than as required by Law; or (mv) change except for the Company’s (x) methods acceleration of accounting vesting referenced in effect as of the date Section 3.09 of the Company Balance SheetDisclosure Schedule or pursuant to Section 5.09 of this Agreement, except as required by changes in GAAP or by Regulation S-X accelerate the vesting of the Exchange Act, as concurred in by its independent public accountants or (y) fiscal year; (n) settle or compromise any Action for which the Company has liability in an amount in excess of $500,000 with respect to any individual Action or $2 million in the aggregateOption; (o) except as required by Law, change any method of Tax accounting, make or change any Tax election, file any amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund; (p) order (A) change in any material respect the Company’s methods of accounting in effect as of the date of the Team Balance Sheet, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, or (B) change in the Company’s fiscal year; (q) effectuate a “plant closing” or “mass layoff”, ” as those terms are defined in the Worker Workers Adjustment and Retraining Notification Act of 1988, as amended, or any similar triggering event under state Law, affecting in whole or in part any site of employment, facility, operating unit or employee of the Company or any Company Subsidiary; (r) settle or compromise any material Action pursuant to which the Company pays, or becomes obligated to pay (net of insurance payments and recoveries), an amount in excess of $1 million; (s) make any loans or advances of borrowed money or capital contributions to, or equity investments in, any other similar state Person, other than (A) in connection with acquisitions permitted by Section 5.01(h) above and loans and advances permitted pursuant to Section 5.01(n)(ii), (B) in an aggregate amount not to exceed $500,000 or local law(C) payroll advances to employees and physicians in the ordinary course of business consistent with past practice and (B) the extension of trade credit to customers and suppliers in the ordinary course of business consistent with past practice; (t) enter into or adopt a plan or agreement of recapitalization, reorganization, merger or consolidation, or adopt a plan of complete or partial liquidation or dissolution; or (qu) cause any Insurance Policy to be cancelled or terminated other than in the ordinary course of business consistent with past practice; (v) terminate the employment of Dx. Xxxx Xxxxxxxxxx or take any action that would reasonably be expected to, prior to the Recapitalization Effective Time, constitute “Good Reason” under his employment agreement with Team, as amended through the date hereof; or (w) agree, resolve resolve, authorize or commit to do any of the foregoing; provided that the limitations set forth in clauses Section 4.01(a5.01(a) through Section 4.01(q5.01(w) shall not apply to any action, transaction or event occurring exclusively between the Company and Company, Team or any Company wholly-owned Subsidiary of Team or between any of the Company Team’s wholly-owned Subsidiaries.

Company Interim Operations. Except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted hereby, without the prior written consent of Purchaser, such consent not to be unreasonably withheld or delayedAcquiror, from the date hereof until the Effective Time, the Company shall, and shall cause each of the Company Subsidiaries Subsidiary to, conduct its business in all material respects in the ordinary course consistent with past practice practice, and shall shall, subject to the other limitations set forth in this Section 6.1, use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) continue to make capital expenditures in accordance with the capital expenditure budget previously disclosed to Purchaser and (iii) maintain in effect all material foreign, federal, state and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits Permits that are required for the Company or any such Company Subsidiary to carry on its business, (iii) keep available the services of its present key officers, employees and independent contractors, and (iv) preserve existing relationships with its material customers, lenders, suppliers and other Persons having material business as currently conductedrelationships with it. Without limiting the generality of the foregoing, except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted by this Agreement, from the date hereof until the Effective Time, without the prior written consent of Purchaser, Acquiror (such consent not to be unreasonably withheld or delayedwith respect to the immediately following clauses (e), (g), (i), (k) and (n)), the Company shall not, nor shall it permit any Company Subsidiary Subsidiary, directly or indirectly, to: (a) amend its certificate of incorporationthe Company Charter, the Company’s by-laws or any Company Subsidiary’s certificate of incorporation or by-laws (or equivalent organizational or governing documents); (b) (i) split, combine or reclassify any capital stock of its Equity Interests or amend the terms of any rights, warrants or options to acquire its securities, (ii) except for ordinary course dividends by a Company Subsidiary or by the Company or declare to holders of Company Preferred Shares, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its Equity Interests or otherwise make any Company Common Stock payments to holders of such Equity Interests in their capacities as such, or (iii) except with respect to any other capital stock repurchases entirely for cash of the CompanyCompany Series A Preferred Shares and Company Series B Preferred Shares for an amount per share that is less than or equal to the Series A Preferred Merger Consideration or the Series B Preferred Merger Consideration, or respectively, redeem, repurchase or otherwise acquire or offer to redeem, repurchase repurchase, or otherwise acquire any Company equity or equity related securities, except for repurchases from former employees and consultants in accordance with the terms of agreements in effect on the date hereof; (c) issue, deliver, dispose of or sell or authorize the issuance, delivery, disposal or sale of, any capital stock of the Company of any class or series or any its securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock or any such convertible or exchangeable securities (including the granting of any additional Options)acquire its securities; (d) except as set forth in Section 4.01(d) of the Company Disclosure Schedule, amend any term of any outstanding security of the Company or any Company Subsidiary; (e) other than in connection with transactions permitted by Section 4.01(f), incur any capital expenditures or any obligations or liabilities in respect thereof, except for those (i) contemplated by the capital expenditure budget for the Company and the Company Subsidiaries, (ii) incurred in the ordinary course of business of the Company and the Company Subsidiaries or (iii) not otherwise described in clauses (i) and/or (ii) which, in the aggregate, do not exceed $500,000; (f) except as set forth in the Company Disclosure Schedule corresponding to this Section 4.01(f), acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or a series of related transactions (i) any assets (including any equity interests) having a fair market value in excess of $1 million or (ii) all or substantially all of the equity interests of any Person or any business or division of any Person having a fair market value in excess of $1 million; (g) sell, lease, encumber or otherwise dispose of any assets, other than sales in the ordinary course of business consistent with past practice of assets with a value, individually or in the aggregate, that do not exceed $500,000 and sales related to discontinued operations; (h) incur (which shall not be deemed to include entering into credit agreements, lines of credit or similar arrangements until the Company or any Company Subsidiary becomes liable with respect to any indebtedness for borrowed money or guarantees thereof under such arrangements) any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any Company Subsidiary or guarantee any debt securities of others, except (i) in the ordinary course of business consistent with past practice (which shall include, without limitation, borrowings under existing credit facilities of the Company or the Company Subsidiaries) or (ii) in an aggregate amount not to exceed $1 million; (i) except in the ordinary course of business consistent with past practice, amend, modify or terminate any material contract, agreement or arrangement of the Company or any Company Subsidiary, or otherwise waive, release or assign any material rights, claims or benefits of the Company or any Company Subsidiary thereunder; (j) except in accordance with the terms of this Agreement, amend or modify any Affiliate Contract; (k) enter into any Contract that would constitute a Material Contract or an Affiliate Contract had such Contract been in effect on the date hereof; (i) except in the ordinary course of business or as required by law or an agreement, policy or arrangement existing on the date hereof, increase the amount of compensation of any director of the Company or officer of the Company or make any increase in or commitment to increase any employee health, welfare or retirement benefits, (ii) except as required by law or an agreement, policy or arrangement existing on the date hereof, grant any severance or termination pay or rights to any director, officer or employee of the Company or any Company Subsidiary, (iii) adopt any additional Company Employee Plan or, except in the ordinary course of business or as required by law, make any contribution to any existing such plan or (iv) except as may be required by law, amend in any material respect any Company Employee Plan; (m) change the Company’s (x) methods of accounting in effect as of the date of the Company Balance Sheet, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants or (y) fiscal year; (n) settle or compromise any Action for which the Company has liability in an amount in excess of $500,000 with respect to any individual Action or $2 million in the aggregate; (o) change any method of Tax accounting, make or change any Tax election, file any amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund; (p) order any “plant closing” or “mass layoff”, as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988, as amended, or other similar state or local law; or (q) agree, resolve or commit to do any of the foregoing; provided that the limitations set forth in clauses Section 4.01(a) through Section 4.01(q) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or between any of the Company Subsidiaries.

Company Interim Operations. Except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted herebyby any other provision of this Agreement, without the prior written consent of Purchaser, such consent Acquiror (which shall not to be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct its business in all material respects their respective businesses only in the ordinary and usual course consistent with past practice practice, and shall use commercially reasonable efforts best efforts, to (i) preserve intact its present business organization, (ii) continue to make capital expenditures in accordance with keep available the capital expenditure budget previously disclosed to Purchaser services of its key employees and those of each Company Subsidiary, and (iii) maintain in effect all preserve existing relationships with its material foreign, federal, state suppliers and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits that are required for other Persons with which the Company or any Company Subsidiary to carry on its has significant business as currently conductedrelationships. Without limiting the generality of the foregoing, and as an extension thereof, except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted by this Agreement, from the date hereof until the Effective Time, without the prior written consent of Purchaser, such consent Acquiror (which shall not to be unreasonably withheld or delayed), the Company shall notnot and shall not permit its Subsidiaries, nor shall it permit any Company Subsidiary directly or indirectly, to: (a) amend propose or adopt any change in its certificate Articles of incorporation, byIncorporation or By-laws (or equivalent organizational or governing documents); (b) (i) split, combine or reclassify any shares of capital stock or amend the terms of the any rights, warrants or options to acquire its securities, (ii) except for ordinary course dividends by a Company or declare Subsidiary, declare, set aside or pay any dividend (including, without limitation, an extraordinary dividend) or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Company Common Stock or any other capital stock of the Companyits Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase repurchase, or otherwise acquire any Company equity of its securities or equity related any rights, warrants or options to acquire its securities, except for repurchases from former employees and consultants in accordance with the terms of agreements in effect on the date hereof; (c) issue, deliver, dispose of sell, grant, pledge, encumber or sell transfer or authorize the issuance, delivery, disposal sale, grant, pledge, encumbrance or sale transfer of, any capital stock or agree to commit to issue, sell or deliver (whether through the issuance or granting of the Company of any class options, warrants, commitments, subscriptions, rights to purchase or series otherwise) its Equity Interests or any securities convertible into or exercisable forfor its Equity Interests, or any rightsother than the issuance of Company Shares pursuant to the exercise of Company Options outstanding on March 23, warrants or options to acquire, any such capital stock or any such convertible or exchangeable securities (including the granting of any additional Options)2004; (d) except as set forth in Section 4.01(d) of the Company Disclosure Schedule, amend any term of any outstanding security of the Company merge with or any Company Subsidiary; (e) other than in connection with transactions permitted by Section 4.01(f), incur any capital expenditures or any obligations or liabilities in respect thereof, except for those (i) contemplated by the capital expenditure budget for the Company and the Company Subsidiaries, (ii) incurred in the ordinary course of business of the Company and the Company Subsidiaries or (iii) not otherwise described in clauses (i) and/or (ii) which, in the aggregate, do not exceed $500,000; (f) except as set forth in the Company Disclosure Schedule corresponding to this Section 4.01(f), acquire (whether pursuant to by merger, consolidation, acquisition of stock or asset purchase assets, joint venture or otherwiseotherwise of a direct or indirect ownership interest or investment) in one transaction or a series of related transactions (i) any assets (including any equity interests) having a fair market value Person, for an aggregate consideration in excess of $1 million 5,000,000, any Equity Interests or (ii) other securities of any Person, any division or business of any Person or all or substantially all of the equity interests assets of any Person or any business or division of any Person having a fair market value in excess of $1 millionPerson; (ge) sell, lease, encumber or otherwise dispose of any assetsassets or securities with carrying value in excess of $5,000,000; (f) (i) (A) incur any indebtedness for borrowed money, except to fund operations of the business in the ordinary course consistent with past practice under the Company's existing credit facility, (B) issue or sell any debt securities of the Company or any Company Subsidiary; (C) make any loans, advances or capital contributions to, or, except as permitted by Section 6.1(d), investments in, any other Person, other than sales in the ordinary course of business consistent with past practices, in no event in an aggregate principal amount in excess of $3,000,000, (D) assume, guarantee or endorse, or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person (other than obligations of Subsidiaries and the endorsements of negotiable instruments for collection in each such case in the ordinary course of business consistent with past practice), or (E) alter or amend in any way any compensation (including without limitation, any commission schedule) or other payments due to employees or independent contractors of the Company (other than, with respect to employees who are not officers or directors of the Company or any Company Subsidiary, increases in the ordinary course of business consistent with past practice of assets with a valueand that, individually or in the aggregate, that do will not exceed $500,000 and sales related to discontinued operations; (h) incur (which shall not be deemed to include entering into credit agreements, lines of credit result in a material increase in benefits or similar arrangements until the Company or any Company Subsidiary becomes liable with respect to any indebtedness for borrowed money or guarantees thereof under such arrangements) any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any Company Subsidiary or guarantee any debt securities of others, except (i) in the ordinary course of business consistent with past practice (which shall include, without limitation, borrowings under existing credit facilities of the Company or the Company Subsidiaries) or (ii) in an aggregate amount not to exceed $1 million; (i) except in the ordinary course of business consistent with past practice, amend, modify or terminate any material contract, agreement or arrangement compensation expense of the Company or any Company Subsidiary, ) or otherwise waive, release or assign any material rights, claims or benefits of the Company or any Company Subsidiary thereunder; (j) except in accordance with the terms of this Agreement, amend or modify any Affiliate Contract; (kii) enter into or materially amend any Contract that would constitute a Material Contract contract, agreement, commitment or an Affiliate Contract had such Contract been in arrangement to effect on any of the date hereoftransactions prohibited by this Section 6.1(f); (i) except in the ordinary course of business or as required by law Law or an any existing agreement, policy or arrangement existing on the date hereof, increase the amount of compensation of any director of the Company or officer of the Company or make any increase in or commitment to increase any employee health, welfare or retirement benefitsCompany Subsidiary, (ii) except as required by law Law, an agreement existing on the date hereof or an agreement, pursuant to a Company severance policy or arrangement existing on the date hereof, grant any severance or termination pay or rights to any director, officer employee, consultant, independent contractor or employee agent of the Company or any Company Subsidiary, (iii) adopt any additional Company Employee Plan oremployee benefit plan, except in the ordinary course of business or as required by law, make any contribution to any existing such plan or (iv) provide for the payment of any amounts as a result of the consummation of the transactions contemplated by this Agreement, (v) except as may be required by lawLaw or as necessary to comply with the terms of this Agreement, amend in any material respect any Company Employee PlanPlan or (vi) pay any bonuses except to the extent provided on Section 6.1(g) of the Company Disclosure Schedule; (mh) change authorize any single capital expenditure or any expenditures not in the Company’s (xordinary course of business in excess of $5,000,000 or aggregate capital expenditures and other expenditures not in the ordinary course of business in excess of $10,000,000, except as set forth on Section 6.1(h) methods of accounting in effect as of the date of the Company Balance SheetDisclosure Schedule; (i) make any changes in its accounting methods, principles or practices currently in effect, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, in each case as concurred in by its independent public accountants or (y) fiscal yearaccountants; (nj) settle or compromise any Action for which except as set forth on Section 6.1(j) of the Company has Disclosure Schedule, (i) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim, liability or obligation arising from the conduct of business in the ordinary course for an amount in excess of $500,000 2,000,000 or (ii) settle, pay or discharge any claim against the Company with respect to or arising out of the transactions contemplated by this Agreement for an amount in excess of $2,000,000 in the aggregate; (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method of accounting therein that is materially inconsistent with elections made, positions taken or methods of accounting used in preparing or filing similar returns in prior periods unless such position, election or method is required by changes in applicable Law, (ii) enter into any settlement or compromise of any material Tax liability, (iii) file any amended Company Return with respect to any individual Action material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax, (vi) surrender any right to claim a material Tax refund or (vii) give or request any waiver of a statute of limitation with respect to any Company Return; (i) make any expenditures or commitments for such expenditures in connection with the entry or proposed entry into any new line of business, or (ii) make any expenditures or commitments for such expenditures, in either case, in a material amount, in connection with the entry or proposed entry into any extension of an existing line of business not set forth on Section 6.1(l) of the Company Disclosure Schedule; (m) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the Merger); (n) grant any loan, advance, extensions of credit to current or former employees or forgiveness or deferral of any loans due from any employee, other than any loan, advance or extension of credit to a current employee in circumstances and in amounts consistent with past practice, in any event not to exceed $2 million 50,000 for any one employee and $250,000 in the aggregate; (o) change any method of Tax accounting, make effect new programs or change existing programs that relate to employment contracts, severance benefits, change in control benefits, bonuses, commissions, base salaries, phantom stock grants, incentive trips, prizes and awards, 401-k and pension benefits, vacation and PTO benefits, health and medical benefits or any Tax election, file other remuneration of any amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any closing agreement with respect kind to any material Tax employee, except (i) as required by applicable Law or surrender any right to claim a material Tax refund(ii) in the ordinary course of business consistent with past practice; (p) order enter into any “plant closing” contract or “mass layoff”, as those terms are defined agreement other than in the Worker Adjustment ordinary course of business consistent with past practices that would be material to the Company and Retraining Notification Act its Subsidiaries, taken as a whole; (q) amend, modify or waive in any material respects any material right under any Material Contract of 1988the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice; (r) take any action that would result in any representation or warranty of the Company contained in this Agreement which is qualified as amendedto materiality becoming untrue as of the Effective Time or any representation or warranty not so qualified becoming untrue in any material respect as of the Effective Time; (s) except as required by applicable Law or GAAP, revalue in any material respect any of its assets, including writing down the value of inventory in any material manner, or writing-off notes or accounts receivable in any material manner; (t) alter through merger, liquidation, reorganization or restructuring or any other similar state fashion the corporate structure or local lawownership of any Company Subsidiary; (u) permit to lapse any registrations or applications for material Intellectual Property owned by the Company or its Subsidiaries; (v) sell, assign, license or encumber any material Intellectual Property of the Company or of any of the Company Subsidiaries, other than in the ordinary course of business, consistent with past practice; or (qw) agreeauthorize, resolve agree or commit to do any of the foregoing; provided that . Notwithstanding the limitations set forth in clauses Section 4.01(a) through Section 4.01(q) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or between any covenants of the Company Subsidiariesset forth above in this Section 6.1, cash on hand at the Company which is available as a source of funds to pay the Merger Consideration as contemplated by the Bank Commitment Letter may be used to repay indebtedness that would otherwise comprise indebtedness to be repaid pursuant to the Refinancing (as defined in the Bank Commitment Letter).

Company Interim Operations. Except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted herebyby any other provision of this Agreement, without the prior written consent of Purchaser, such consent Acquiror (which shall not to be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct its business in all material respects their respective businesses only in the ordinary and usual course consistent with past practice practice, and shall use commercially reasonable efforts best efforts, to (i) preserve intact its present business organization, (ii) continue to make capital expenditures in accordance with keep available the capital expenditure budget previously disclosed to Purchaser services of its key employees and those of each Company Subsidiary, and (iii) maintain in effect all preserve existing relationships with its material foreign, federal, state suppliers and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits that are required for other Persons with which the Company or any Company Subsidiary to carry on its has significant business as currently conductedrelationships. Without limiting the generality of the foregoing, and as an extension thereof, except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted by this Agreement, from the date hereof until the Effective Time, without the prior written consent of Purchaser, such consent Acquiror (which shall not to be unreasonably withheld or delayed), the Company shall notnot and shall not permit its Subsidiaries, nor shall it permit any Company Subsidiary directly or indirectly, to: (a) amend propose or adopt any change in its certificate Articles of incorporation, byIncorporation or By-laws (or equivalent organizational or governing documents); (b) (i) split, combine or reclassify any shares of capital stock or amend the terms of the any rights, warrants or options to acquire its securities, (ii) except for ordinary course dividends by a Company or declare Subsidiary, declare, set aside or pay any dividend (including, without limitation, an extraordinary dividend) or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Company Common Stock or any other capital stock of the Companyits Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase repurchase, or otherwise acquire any Company equity of its securities or equity related any rights, warrants or options to acquire its securities, except for repurchases from former employees and consultants in accordance with the terms of agreements in effect on the date hereof; (c) issue, deliver, dispose of sell, grant, pledge, encumber or sell transfer or authorize the issuance, delivery, disposal sale, grant, pledge, encumbrance or sale transfer of, any capital stock or agree to commit to issue, sell or deliver (whether through the issuance or granting of the Company of any class options, warrants, commitments, subscriptions, rights to purchase or series otherwise) its Equity Interests or any securities convertible into or exercisable forfor its Equity Interests, or any rightsother than the issuance of Company Shares pursuant to the exercise of Company Options outstanding on January 9, warrants or options to acquire, any such capital stock or any such convertible or exchangeable securities (including the granting of any additional Options)2005; (d) except as set forth in Section 4.01(d) of the Company Disclosure Schedule, amend any term of any outstanding security of the Company merge with or any Company Subsidiary; (e) other than in connection with transactions permitted by Section 4.01(f), incur any capital expenditures or any obligations or liabilities in respect thereof, except for those (i) contemplated by the capital expenditure budget for the Company and the Company Subsidiaries, (ii) incurred in the ordinary course of business of the Company and the Company Subsidiaries or (iii) not otherwise described in clauses (i) and/or (ii) which, in the aggregate, do not exceed $500,000; (f) except as set forth in the Company Disclosure Schedule corresponding to this Section 4.01(f), acquire (whether pursuant to by merger, consolidation, acquisition of stock or asset purchase assets, joint venture or otherwiseotherwise of a direct or indirect ownership interest or investment) in one transaction or a series of related transactions (i) any assets (including any equity interests) having a fair market value Person, for an aggregate consideration in excess of $1 million 5,000,000, any Equity Interests or (ii) other securities of any Person, any division or business of any Person or all or substantially all of the equity interests assets of any Person or any business or division of any Person having a fair market value in excess of $1 millionPerson; (ge) sell, lease, encumber or otherwise dispose of any assetsassets or securities with carrying value in excess of $3,750,000; (f) (i) (A) incur any indebtedness for borrowed money, except to fund operations of the business in the ordinary course consistent with past practice under the Company’s existing credit facility, (B) issue or sell any debt securities of the Company or any Company Subsidiary; (C) make any loans, advances or capital contributions to, or, except as permitted by Section 6.1(d), investments in, any other Person, other than sales in the ordinary course of business consistent with past practices, in no event in an aggregate principal amount in excess of $2,250,000, (D) assume, guarantee or endorse, or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person (other than obligations of Subsidiaries and the endorsements of negotiable instruments for collection in each such case in the ordinary course of business consistent with past practice), or (E) alter or amend in any way any compensation (including without limitation, any commission schedule) or other payments due to employees or independent contractors of the Company (other than, with respect to employees who are not officers or directors of the Company or any Company Subsidiary, increases in the ordinary course of business consistent with past practice of assets with a valueand that, individually or in the aggregate, that do will not exceed $500,000 and sales related to discontinued operations; (h) incur (which shall not be deemed to include entering into credit agreements, lines of credit result in a material increase in benefits or similar arrangements until the Company or any Company Subsidiary becomes liable with respect to any indebtedness for borrowed money or guarantees thereof under such arrangements) any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any Company Subsidiary or guarantee any debt securities of others, except (i) in the ordinary course of business consistent with past practice (which shall include, without limitation, borrowings under existing credit facilities of the Company or the Company Subsidiaries) or (ii) in an aggregate amount not to exceed $1 million; (i) except in the ordinary course of business consistent with past practice, amend, modify or terminate any material contract, agreement or arrangement compensation expense of the Company or any Company Subsidiary, ) or otherwise waive, release or assign any material rights, claims or benefits of the Company or any Company Subsidiary thereunder; (j) except in accordance with the terms of this Agreement, amend or modify any Affiliate Contract; (kii) enter into or materially amend any Contract that would constitute a Material Contract contract, agreement, commitment or an Affiliate Contract had such Contract been in arrangement to effect on any of the date hereoftransactions prohibited by this Section 6.1(f); (i) except in the ordinary course of business or as required by law Law or an any existing agreement, policy or arrangement existing on the date hereof, increase the amount of compensation of any director of the Company or officer of the Company or make any increase in or commitment to increase any employee health, welfare or retirement benefitsCompany Subsidiary, (ii) except as required by law Law, an agreement existing on the date hereof or an agreement, pursuant to a Company severance policy or arrangement existing on the date hereof, grant any severance or termination pay or rights to any director, officer employee, consultant, independent contractor or employee agent of the Company or any Company Subsidiary, (iii) adopt any additional Company Employee Plan oremployee benefit plan, except in the ordinary course of business or as required by law, make any contribution to any existing such plan or (iv) provide for the payment of any amounts as a result of the consummation of the transactions contemplated by this Agreement, (v) except as may be required by lawLaw or as necessary to comply with the terms of this Agreement, amend in any material respect any Company Employee PlanPlan or (vi) pay any bonuses except to the extent provided on Section 6.1(g) of the Company Disclosure Schedule; (mh) change authorize any single capital expenditure or any expenditures not in the Company’s (xordinary course of business in excess of $3,750,000 or aggregate capital expenditures and other expenditures not in the ordinary course of business in excess of $10,000,000, except as set forth on Section 6.1(h) methods of accounting in effect as of the date of the Company Balance SheetDisclosure Schedule; (i) make any changes in its accounting methods, principles or practices currently in effect, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, in each case as concurred in by its independent public accountants or (y) fiscal yearaccountants; (nj) settle or compromise any Action for which except as set forth on Section 6.1(j) of the Company has Disclosure Schedule, (i) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim, liability in or obligation for an amount in excess of $500,000 2,000,000 or (ii) settle, pay or discharge any claim against the Company with respect to or arising out of the transactions contemplated by this Agreement for an amount in excess of $2,000,000 in the aggregate; (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method of accounting therein that is materially inconsistent with elections made, positions taken or methods of accounting used in preparing or filing similar returns in prior periods unless such position, election or method is required by changes in applicable Law, (ii) enter into any settlement or compromise of any material Tax liability, (iii) file any amended Company Return with respect to any individual Action material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax, (vi) surrender any right to claim a material Tax refund or (vii) give or request any waiver of a statute of limitation with respect to any Company Return; (i) make any expenditures or commitments for such expenditures in connection with the entry or proposed entry into any new line of business, or (ii) make any expenditures or commitments for such expenditures, in either case, in a material amount, in connection with the entry or proposed entry into any extension of an existing line of business not set forth on Section 6.1(l) of the Company Disclosure Schedule; (m) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the Merger); (n) grant any loan, advance, extensions of credit to current or former employees or forgiveness or deferral of any loans due from any employee, other than any loan, advance or extension of credit to a current employee in circumstances and in amounts consistent with past practice, in any event not to exceed $2 million 50,000 for any one employee and $250,000 in the aggregate; (o) change any method of Tax accounting, make effect new programs or change existing programs that relate to employment contracts, severance benefits, change in control benefits, bonuses, commissions, base salaries, phantom stock grants, incentive trips, prizes and awards, 401-(k) and pension benefits, vacation and PTO benefits, health and medical benefits or any Tax election, file other remuneration of any amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any closing agreement with respect kind to any material Tax employee, except as required by applicable Law and except for renewals of expiring health and welfare programs and except for replacing health and welfare programs with new programs, in each case having terms substantially the same as the program expired or surrender any right to claim a material Tax refundreplaced; (p) order enter into any “plant closing” contract or “mass layoff”, as those terms are defined agreement other than in the Worker Adjustment ordinary course of business consistent with past practices that would be material to the Company and Retraining Notification Act its Subsidiaries, taken as a whole; (q) amend, modify or waive in any material respects any right that is material to the Company under any Company Contract of 1988the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice; (r) take any action that would result in any representation or warranty of the Company contained in this Agreement which is qualified as amendedto materiality becoming untrue as of the Effective Time or any representation or warranty not so qualified becoming untrue in any material respect as of the Effective Time; (s) except as required by applicable Law or GAAP, revalue in any material respect any of its assets, including writing down the value of inventory in any material manner, or writing-off notes or accounts receivable in any material manner; (t) collect accounts receivable or satisfy accounts payable except in the ordinary course of business consistent with past practices; (u) alter through merger, liquidation, reorganization or restructuring or any other similar state fashion the corporate structure or local lawownership of any Company Subsidiary; (v) permit to lapse any registrations or applications for material Intellectual Property owned by the Company or its Subsidiaries; (w) sell, assign, license or encumber any material Intellectual Property of the Company or of any of the Company Subsidiaries, other than in the ordinary course of business, consistent with past practice; or (qx) agreeauthorize, resolve agree or commit to do any of the foregoing; provided that . Notwithstanding the limitations set forth in clauses Section 4.01(a) through Section 4.01(q) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or between any covenants of the Company Subsidiariesset forth above in this Section 6.1, cash on hand at the Company which is available as a source of funds to pay the Merger Consideration as contemplated by the Bank Commitment Letter may be used to repay indebtedness for money borrowed that would otherwise comprise indebtedness to be repaid pursuant to the Refinancing (as defined in the Bank Commitment Letter) that is then due in accordance with its original scheduled maturity or that may be prepaid without penalty or premium.

Company Interim Operations. Except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted herebyby any other provision of this Agreement, without the prior written consent of Purchaser, such consent Acquiror (which shall not to be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct its business in all material respects their respective businesses only in the ordinary and usual course consistent with past practice practice, and shall use commercially reasonable efforts best efforts, to (i) preserve intact its present business organization, (ii) continue to make capital expenditures in accordance with keep available the capital expenditure budget previously disclosed to Purchaser services of its key employees and those of each Company Subsidiary, and (iii) maintain in effect all preserve existing relationships with its material foreign, federal, state suppliers and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits that are required for other Persons with which the Company or any Company Subsidiary to carry on its has significant business as currently conductedrelationships. Without limiting the generality of the foregoing, and as an extension thereof, except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted by this Agreement, from the date hereof until the Effective Time, without the prior written consent of Purchaser, such consent Acquiror (which shall not to be unreasonably withheld or delayed), the Company shall notnot and shall not permit its Subsidiaries, nor shall it permit any Company Subsidiary directly or indirectly, to: (a) amend propose or adopt any change in its certificate Articles of incorporation, byIncorporation or By-laws (or equivalent organizational or governing documents); (b) (i) split, combine or reclassify any shares of capital stock or amend the terms of the any rights, warrants or options to acquire its securities, (ii) except for ordinary course dividends by a Company or declare Subsidiary, declare, set aside or pay any dividend (including, without limitation, an extraordinary dividend) or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Company Common Stock or any other capital stock of the Companyits Equity Interests, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase repurchase, or otherwise acquire any Company equity of its securities or equity related any rights, warrants or options to acquire its securities, except for repurchases from former employees and consultants in accordance with the terms of agreements in effect on the date hereof; (c) issue, deliver, dispose of sell, grant, pledge, encumber or sell transfer or authorize the issuance, delivery, disposal sale, grant, pledge, encumbrance or sale transfer of, any capital stock or agree to commit to issue, sell or deliver (whether through the issuance or granting of the Company of any class options, warrants, commitments, subscriptions, rights to purchase or series otherwise) its Equity Interests or any securities convertible into or exercisable forfor its Equity Interests, or any rightsother than the issuance of Company Shares pursuant to the exercise of Company Options outstanding on March 23, warrants or options to acquire, any such capital stock or any such convertible or exchangeable securities (including the granting of any additional Options)2004; (d) except as set forth in Section 4.01(d) of the Company Disclosure Schedule, amend any term of any outstanding security of the Company merge with or any Company Subsidiary; (e) other than in connection with transactions permitted by Section 4.01(f), incur any capital expenditures or any obligations or liabilities in respect thereof, except for those (i) contemplated by the capital expenditure budget for the Company and the Company Subsidiaries, (ii) incurred in the ordinary course of business of the Company and the Company Subsidiaries or (iii) not otherwise described in clauses (i) and/or (ii) which, in the aggregate, do not exceed $500,000; (f) except as set forth in the Company Disclosure Schedule corresponding to this Section 4.01(f), acquire (whether pursuant to by merger, consolidation, acquisition of stock or asset purchase assets, joint venture or otherwiseotherwise of a direct or indirect ownership interest or investment) in one transaction or a series of related transactions (i) any assets (including any equity interests) having a fair market value Person, for an aggregate consideration in excess of $1 million 5,000,000, any Equity Interests or (ii) other securities of any Person, any division or business of any Person or all or substantially all of the equity interests assets of any Person or any business or division of any Person having a fair market value in excess of $1 millionPerson; (ge) sell, lease, encumber or otherwise dispose of any assetsassets or securities with carrying value in excess of $5,000,000; (f) (i) (A) incur any indebtedness for borrowed money, except to fund operations of the business in the ordinary course consistent with past practice under the Company's existing credit facility, (B) issue or sell any debt securities of the Company or any Company Subsidiary; (C) make any loans, advances or capital contributions to, or, except as permitted by Section 6.1(d), investments in, any other Person, other than sales in the ordinary course of business consistent with past practices, in no event in an aggregate principal amount in excess of $3,000,000, (D) assume, guarantee or endorse, or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person (other than obligations of Subsidiaries and the endorsements of negotiable instruments for collection in each such case in the ordinary course of business consistent with past practice), or (E) alter or amend in any way any compensation (including without limitation, any commission schedule) or other payments due to employees or independent contractors of the Company (other than, with respect to employees who are not officers or directors of the Company or any Company Subsidiary, increases in the ordinary course of business consistent with past practice of assets with a valueand that, individually or in the aggregate, that do will not exceed $500,000 and sales related to discontinued operations; (h) incur (which shall not be deemed to include entering into credit agreements, lines of credit result in a material increase in benefits or similar arrangements until the Company or any Company Subsidiary becomes liable with respect to any indebtedness for borrowed money or guarantees thereof under such arrangements) any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any Company Subsidiary or guarantee any debt securities of others, except (i) in the ordinary course of business consistent with past practice (which shall include, without limitation, borrowings under existing credit facilities of the Company or the Company Subsidiaries) or (ii) in an aggregate amount not to exceed $1 million; (i) except in the ordinary course of business consistent with past practice, amend, modify or terminate any material contract, agreement or arrangement compensation expense of the Company or any Company Subsidiary, ) or otherwise waive, release or assign any material rights, claims or benefits of the Company or any Company Subsidiary thereunder; (j) except in accordance with the terms of this Agreement, amend or modify any Affiliate Contract; (kii) enter into or materially amend any Contract that would constitute a Material Contract contract, agreement, commitment or an Affiliate Contract had such Contract been in arrangement to effect on any of the date hereoftransactions prohibited by this Section 6.1(f); (i) except in the ordinary course of business or as required by law Law or an any existing agreement, policy or arrangement existing on the date hereof, increase the amount of compensation of any director of the Company or officer of the Company or make any increase in or commitment to increase any employee health, welfare or retirement benefitsCompany Subsidiary, (ii) except as required by law Law, an agreement existing on the date hereof or an agreement, pursuant to a Company severance policy or arrangement existing on the date hereof, grant any severance or termination pay or rights to any director, officer employee, consultant, independent contractor or employee agent of the Company or any Company Subsidiary, (iii) adopt any additional Company Employee Plan oremployee benefit plan, except in the ordinary course of business or as required by law, make any contribution to any existing such plan or (iv) provide for the payment of any amounts as a result of the consummation of the transactions contemplated by this Agreement, (v) except as may be required by lawLaw or as necessary to comply with the terms of this Agreement, amend in any material respect any Company Employee PlanPlan or (vi) pay any bonuses except to the extent provided on Section 6.1(g) of the Company Disclosure Schedule; (mh) change authorize any single capital expenditure or any expenditures not in the Company’s (xordinary course of business in excess of $5,000,000 or aggregate capital expenditures and other expenditures not in the ordinary course of business in excess of $10,000,000, except as set forth on Section 6.1(h) methods of accounting in effect as of the date of the Company Balance SheetDisclosure Schedule; (i) make any changes in its accounting methods, principles or practices currently in effect, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, in each case as concurred in by its independent public accountants or (y) fiscal yearaccountants; (nj) settle or compromise any Action for which except as set forth on Section 6.1(j) of the Company has Disclosure Schedule, (i) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim, liability or obligation arising from the conduct of business in the ordinary course for an amount in excess of $500,000 2,000,000 or (ii) settle, pay or discharge any claim against the Company with respect to or arising out of the transactions contemplated by this Agreement for an amount in excess of $2,000,000 in the aggregate; (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method of accounting therein that is materially inconsistent with elections made, positions taken or methods of accounting used in preparing or filing similar returns in prior periods unless such position, election or method is required by changes in applicable Law, (ii) enter into any settlement or compromise of any material Tax liability, (iii) file any amended Company Return with respect to any individual Action material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax, (vi) surrender any right to claim a material Tax refund or (vii) give or request any waiver of a statute of limitation with respect to any Company Return; (i) make any expenditures or commitments for such expenditures in connection with the entry or proposed entry into any new line of business, or (ii) make any expenditures or commitments for such expenditures, in either case, in a material amount, in connection with the entry or proposed entry into any extension of an existing line of business not set forth on Section 6.1(l) of the Company Disclosure Schedule; (m) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the Merger); (n) grant any loan, advance, extensions of credit to current or former employees or forgiveness or deferral of any loans due from any employee, other than any loan, advance or extension of credit to a current employee in circumstances and in amounts consistent with past practice, in any event not to exceed $2 million 50,000 for any one employee and $250,000 in the aggregate; (o) change any method of Tax accounting, make effect new programs or change existing programs that relate to employment contracts, severance benefits, change in control benefits, bonuses, commissions, base salaries, phantom stock grants, incentive trips, prizes and awards, 401-k and pension benefits, vacation and PTO benefits, health and medical benefits or any Tax election, file other remuneration of any amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any closing agreement with respect kind to any material Tax employee, except (i) as required by applicable Law or surrender any right to claim a material Tax refund(ii) in the ordinary course of business consistent with past practice; (p) order enter into any “plant closing” contract or “mass layoff”, as those terms are defined agreement other than in the Worker Adjustment ordinary course of business consistent with past practices that would be material to the Company and Retraining Notification Act its Subsidiaries, taken as a whole; (q) amend, modify or waive in any material respects any material right under any Material Contract of 1988the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice; (r) take any action that would result in any representation or warranty of the Company contained in this Agreement which is qualified as amendedto materiality becoming untrue as of the Effective Time or any representation or warranty not so qualified becoming untrue in any material respect as of the Effective Time; (s) except as required by applicable Law or GAAP, revalue in any material respect any of its assets, including writing down the value of inventory in any material manner, or writing-off notes or accounts receivable in any material manner; (t) alter through merger, liquidation, reorganization or restructuring or any other similar state fashion the corporate structure or local lawownership of any Company Subsidiary; (u) permit to lapse any registrations or applications for material Intellectual Property owned by the Company or its Subsidiaries; (v) sell, assign, license or encumber any material Intellectual Property of the Company or of any of the Company Subsidiaries, other than in the ordinary course of business, consistent with past practice; or (qw) agreeauthorize, resolve agree or commit to do any of the foregoing; provided that the limitations set forth in clauses Section 4.01(a) through Section 4.01(q) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or between any of the Company Subsidiaries.

Company Interim Operations. Except as set forth in Section 4.01 of the Company Disclosure Schedule Schedule, as expressly contemplated by the Island Purchase Agreement or as otherwise expressly contemplated or permitted hereby, without the prior written consent of Purchaser, such consent not to be unreasonably withheld or delayedAcquiror, from the date hereof until the Effective Time, the Company shall, and shall cause each of the Company Subsidiaries Subsidiary to, conduct its business in all material respects in the ordinary course consistent with past practice practice, and shall shall, subject to the other limitations set forth in this Section 6.1, use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) continue to make capital expenditures in accordance with the capital expenditure budget previously disclosed to Purchaser and (iii) maintain in effect all material foreign, federal, state and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits Permits that are required for the Company or any such Company Subsidiary to carry on its business, (iii) keep available the services of its present key officers, employees and independent contractors, and (iv) preserve existing relationships with its material customers, lenders, suppliers and other Persons having material business as currently conductedrelationships with it. Without limiting the generality of the foregoing, except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted by this Agreement, from the date hereof until the Effective Time, without the prior written consent of Purchaser, Acquiror (such consent not to be unreasonably withheld or delayedwith respect to the immediately following clauses (e), (g), (i), (k) and (n)), the Company shall not, nor shall it permit any Company Subsidiary Subsidiary, directly or indirectly, to: (a) amend its certificate of incorporationthe Company Charter, the Company’s by-laws or any Company Subsidiary’s certificate of incorporation or by-laws (or equivalent organizational or governing documents); (b) (i) split, combine or reclassify any capital stock of its Equity Interests or amend the terms of any rights, warrants or options to acquire its securities, (ii) except for ordinary course dividends by a Company Subsidiary or by the Company or declare to holders of Company Preferred Shares, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its Equity Interests or otherwise make any Company Common Stock payments to holders of such Equity Interests in their capacities as such, or (iii) except with respect to any other capital stock repurchases entirely for cash of the CompanyCompany Series A Preferred Shares and Company Series B Preferred Shares for an amount per share that is less than or equal to the Series A Preferred Merger Consideration or the Series B Preferred Merger Consideration, or respectively, redeem, repurchase or otherwise acquire or offer to redeem, repurchase repurchase, or otherwise acquire any Company equity of its securities or equity related any rights, warrants or options to acquire its securities, except for repurchases from former employees and consultants in accordance with the terms of agreements in effect on the date hereof; (c) issue, deliver, dispose of sell, exchange, grant, pledge, encumber or sell transfer or authorize the issuance, delivery, disposal sale, grant, pledge, encumbrance or sale transfer of, any capital stock of Equity Interests in the Company of or any class or series Company Subsidiary or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock or any such convertible or exchangeable securities (including the granting of any additional Options); (d) except as set forth Equity Interests in Section 4.01(d) of the Company Disclosure Schedule, amend any term of any outstanding security of the Company or any Company Subsidiary; (e) , other than the issuance of Company Shares or, in connection with transactions permitted by Section 4.01(f)the case of clause (iv) only, incur Equity Interests in any capital expenditures or any obligations or liabilities in respect thereof, except for those Company Subsidiary pursuant to (i) contemplated by the capital expenditure budget for exercise of Company Options granted prior to the Company and the Company Subsidiariesdate hereof, (ii) incurred in the ordinary course exercise of business of Company Warrants and TOPR Warrants issued prior to the Company and the Company Subsidiaries or date hereof, (iii) the conversion of, or as a dividend on (if the payment of a dividend in cash would breach or violate the provisions of the Senior Credit Agreement), Company Preferred Shares issued prior to the date hereof (but not otherwise described the exchange of such Company Preferred Shares pursuant to the Exchange Agreement), (iv) issuance of Company Shares in clauses connection with the vesting of Restricted Shares and (iv) and/or (ii) which, in issuance of Company Shares under the aggregate, do not exceed $500,000Company Purchase Plan; (fd) except as set forth in the Company Disclosure Schedule corresponding to this Section 4.01(f)acquire, acquire directly or indirectly (whether pursuant to merger, stock or asset purchase purchase, joint venture or otherwise) ), in one transaction or a series of related transactions (i) any assets (including Person, any equity interests) having a fair market value Equity Interests or other securities in excess any Person, any division or business of $1 million any Person or (ii) all or substantially all of the equity interests assets of any Person or (ii) any business interest or division investment in real property (except to the extent (A) otherwise obligated pursuant to any binding agreement as of any Person having the date hereof, a fair market value in excess copy of $1 millionwhich has previously been made available to Parent or (B) solely among or between the Company and its Subsidiaries); (ge) sell, lease, encumber or otherwise dispose of any assets, other than (i) sales in the ordinary course of business consistent with past practice practice, (ii) obsolete equipment and property no longer used in the operation of the Company’s business, and (iii) assets with which do not have a value, value of more than $100,000 individually or $500,000 in the aggregate, that do not exceed $500,000 and sales related to discontinued operations; (hf) (i) (A) incur (which shall not be deemed to include entering into credit agreements, lines of credit or similar arrangements until the Company or any Company Subsidiary becomes liable with respect to any indebtedness for borrowed money or guarantees thereof money, except borrowings under such arrangements) any indebtedness for borrowed money or guarantee any the terms of the Senior Credit Agreement, the U.K. Overdraft Facility or, solely to the extent borrowings are then not available under the Senior Credit Agreement, the Senior Subordinated Credit Agreement, in each case to fund working capital in the ordinary course consistent with past practice (provided that no such indebtedness or may be incurred with respect to the matters identified as “Prohibited Borrowings” in Section 6.1(f) of the Company Disclosure Schedule), (B) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary Subsidiary, (C) make any loans, advances or guarantee capital contributions to, or investments in, any debt securities of othersother Person, except (i) in the ordinary course of business consistent with past practice (which shall include, without limitation, borrowings under existing credit facilities of other than to the Company or the any Company Subsidiaries) Subsidiary and other than advancements to brokers and other commission based Company Employees or (ii) in an aggregate amount not to exceed $1 million; (i) except Company Independent Contractors in the ordinary course of business consistent with past practice, amend(D) assume, modify guarantee or terminate endorse, or otherwise as an accommodation become responsible for, the obligations of any material contract, agreement or arrangement Person (other than obligations of the Company or any Company SubsidiarySubsidiary and the endorsements of negotiable instruments for collection in the ordinary course of business consistent with past practice), or (E) except as set forth in Section 6.1(f)(i)(E) of the Company Disclosure Schedule, enter into any new recourse commitments with respect to the financing of any of the Real Estate Investment Assets, or (ii) enter into or materially amend any contract, agreement, commitment or arrangement to effect any of the transactions prohibited by this Section 6.1(f); (g) except with the prior written consent of Parent (which will not be unreasonably withheld or delayed) or with respect to Material Contracts that relate solely to capital expenditures that are permitted by Section 6.1(i) hereto, (i) enter into any contract, agreement or arrangement that if entered into prior to the date hereof would be a Material Contract (except for all revenue producing contracts that would otherwise be included within clause (i) of the definition of Material Contracts and would not otherwise fall within any of clauses (ii) through (xi) of the definition of Material Contracts), (ii) amend or modify in any material respect or terminate any Material Contract (except for all revenue producing contracts that would otherwise be included within clause (i) of the definition of Material Contracts and would not otherwise fall within any of clauses (ii) through (xi) of the definition of Material Contracts) or (iii) otherwise waive, release or assign any material rights, claims or benefits of the Company or any Company Subsidiary thereunder; (j) except in accordance with the terms of this Agreement, amend or modify under any Affiliate Material Contract; (k) enter into any Contract that would constitute a Material Contract or an Affiliate Contract had such Contract been in effect on the date hereof; (i) except in the ordinary course of business or as required by law or an agreement, policy or arrangement existing on the date hereof, increase the amount of compensation of any director of the Company or officer of the Company or make any increase in or commitment to increase any employee health, welfare or retirement benefits, (iih) except as required by law applicable Law or an agreement, policy the terms of any employment agreement or arrangement Company Plan existing on as of the date hereofof this Agreement, grant (i) unless provided for in the 2003 Budget, increase the compensation (including, without limitation, commission rates) or benefits of any severance present or termination pay or rights to any former director, officer or employee of the Company or any Company SubsidiarySubsidiaries, (ii) pay a bonus, whether accrued or unaccrued, to any present or former director, officer or employee of the Company or any Company Subsidiaries, (iii) adopt grant, or alter the terms of, any additional severance or termination pay or benefits to any present or former director, officer or employee of the Company Employee Plan oror its Subsidiaries, except (iv) loan or advance any money or other property to any present or former director, officer or employee of the Company or any Company Subsidiaries, other than advancements to brokers and other commission based Company Employees or Company Independent Contractors in the ordinary course of business consistent with past practice, (v) establish, adopt, enter into, amend or terminate any Company Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Plan if it were in existence as required by lawof the date of this Agreement, make (vi) grant any contribution equity or equity-based awards, other than in the ordinary course consistent with past practice, (vii) enter into any employment, consulting, independent contractor or similar agreement, or amend, supplement or modify the terms of any such existing agreements, (viii) hire, or offer to hire, any existing new employee or enter into any new independent contractor relationship, or agree to enter into any new independent contractor relationship (except (A) to replace employees or independent contractors departing after the date hereof or that have departed prior to the date hereof but have not yet been replaced, provided that the compensation and benefits offered to such plan replacement do not materially exceed that of the replaced employee or independent contractor, (B) for new employees who have aggregate pre-tax compensation (including bonuses and commissions of no greater than $200,000 per year, (C) with respect to offers of employment that are outstanding as of the date hereof, (D) for ordinary course hiring of brokers consistent with past practice in connection with the residential brokerage business of the Company and its Subsidiaries or (ivE) except as may be required employees assigned to properties managed by law, amend the Company or any of its Subsidiaries for which the compensation and benefits of such employees are fully reimbursed to the Company and its Subsidiaries) or (ix) terminate any employee or independent contractor of the Company or its Subsidiaries other than in any material respect any Company Employee Planwriting; (mi) except (x) as set forth on the 2003 Budget set forth in Section 6.1(i) of the Company Disclosure Schedule (the “2003 Budget”) and (y) for authorization of ordinary course capital expenditures by Real Estate Investment Entities (other than with respect to the matters identified as “Prohibited Expenditures” in Section 6.1(f) of the Company Disclosure Schedule), authorize or make any single capital expenditure in excess of $50,000 or aggregate capital expenditures of the Company and the Company Subsidiaries, taken together, in excess of $250,000; (j) change the Company’s (x) methods of accounting in effect as of the date of the Company Balance Sheetat December 31, 2001, except as required by changes in GAAP or by Regulation S-X of the Exchange ActAct or as otherwise specifically disclosed in the Company SEC Documents filed prior to the date hereof, as concurred in by its independent public accountants or (y) fiscal yearaccountants; (ni) settle except for the payment of any deductible under an existing insurance policy (or compromise any Action a commercially reasonable substitute for which a company engaged in businesses similar to those of the Company has liability in an amount and its Subsidiaries) with respect to a Claim that is being settled by such insurance company, settle, pay, compromise or discharge any Claim that is in excess of $500,000 250,000 or is otherwise material to the business, financial condition or results of operations of the Company and the Company Subsidiaries, taken as a whole or (ii) settle, pay, compromise or discharge any Claim against the Company or any Company Subsidiary with respect to any individual Action or $2 million in arising out of the aggregatetransactions contemplated by this Agreement, the Asset Agreements, the Voting Agreements, the Confidentiality Agreement and the No-Raid Agreement; (ol) change other than in the ordinary course of business consistent with past practice, (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method of Tax accountingtherein that is materially inconsistent with elections made, make positions taken or change methods used in preparing or filing similar returns in prior periods, (ii) enter into any Tax election, file any amended Tax Return, settle settlement or compromise of any material Tax liability, agree to an extension or waiver of the statute of limitations (iii) file any amended Company Return with respect to the assessment or determination of any material TaxesTax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement with respect relating to any material Tax or (vi) surrender any right to claim a material Tax refund; (m) open any office in a new geographical territory, create any new business division or otherwise enter into any new line of business; (n) fail to continuously maintain in full force and effect its current insurance or a commercially reasonable substitute for a company engaged in businesses similar to those of the Company and its Subsidiaries; (o) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the Merger); (p) order willfully take any “plant closing” action that would result in a material breach of any provision of this Agreement or “mass layoff”, as those terms are defined the inability of the Company to satisfy the conditions precedent set forth in the Worker Adjustment and Retraining Notification Act of 1988, as amended, or other similar state or local law; orSection 9.3(a) hereto; (q) agreeexcept for (i) expense reimbursements and advances in the ordinary course of business consistent with past practice, resolve (ii) revenue producing agreements entered into with Real Estate Investment Entities in the ordinary course of business consistent with past practice having terms consistent with past practice and (iii) transactions with any non-employee member of the Company’s Board of Directors or commit his or her Affiliates in the ordinary course of business consistent with past practice, enter into any contract, commitment or agreement with any Affiliate of the Company or its Subsidiaries or any of their immediate family members (including their spouses); (r) except as specifically contemplated by this Agreement and the Company Disclosure Schedules (without giving effect to Section 6.5), enter into any agreement not in existence as of the date hereof that would provide for the making of any payment or result in any adverse change in rights or obligations of the Company and its Subsidiaries as a result of the Merger, the Financing or the Additional Financing; and (s) authorize, agree or commit, verbally or in writing, to do any of the foregoing; provided . provided, however that the limitations set forth in clauses Section 4.01(aconduct of business by each of Insignia Opportunity Trust and Insignia Opportunity Partners (collectively, “IOP”) through Section 4.01(qand Insignia Opportunity Partners II, L.P. (“IOP II”) shall not apply be subject to any actionthe foregoing clauses (a) through (s) to the extent such conduct is in the ordinary course of business consistent with past practice; provided, transaction or event occurring exclusively between further that the Company and any Company Subsidiary or between any conduct of business of Octane Ventures, LLC shall not be subject to the Company Subsidiariesforegoing clauses (a) through (s).

Company Interim Operations. Except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted hereby, without the prior written consent of Purchaser, such consent not to be unreasonably withheld or delayedAcquiror, from the date hereof until the Effective Time, the Company shall, and shall cause each of the Company Subsidiaries Subsidiary to, conduct its business in all material respects in the ordinary course consistent with past practice practice, and shall shall, subject to the other limitations set forth in this Section 6.1, use commercially reasonable efforts to (i) preserve intact its present business organization, (ii) continue to make capital expenditures in accordance with the capital expenditure budget previously disclosed to Purchaser and (iii) maintain in effect all material foreign, federal, state and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits Permits that are required for the Company or any such Company Subsidiary to carry on its business, (iii) keep available the services of its present key officers, employees and independent contractors, and (iv) preserve existing relationships with its material customers, lenders, suppliers and other Persons having material business as currently conductedrelationships with it. Without limiting the generality of the foregoing, except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted by this Agreement, from the date hereof until the Effective Time, without the prior written consent of Purchaser, Acquiror (such consent not to be unreasonably withheld or delayedwith respect to the immediately following clauses (e), (g), (i), (k) and (n)), the Company shall not, nor shall it permit any Company Subsidiary Subsidiary, directly or indirectly, to: (a) amend its certificate of incorporationthe Company Charter, the Company's by-laws or any Company Subsidiary's certificate of incorporation or by-laws (or equivalent organizational or governing documents); (b) (i) split, combine or reclassify any capital stock of its Equity Interests or amend the terms of any rights, warrants or options to acquire its securities, (ii) except for ordinary course dividends by a Company Subsidiary or by the Company or declare to holders of Company Preferred Shares, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its Equity Interests or otherwise make any Company Common Stock payments to holders of such Equity Interests in their capacities as such, or (iii) except with respect to any other capital stock repurchases entirely for cash of the CompanyCompany Series A Preferred Shares and Company Series B Preferred Shares for an amount per share that is less than or equal to the Series A Preferred Merger Consideration or the Series B Preferred Merger Consideration, or respectively, redeem, repurchase or otherwise acquire or offer to redeem, repurchase repurchase, or otherwise acquire any Company equity of its securities or equity related any rights, warrants or options to acquire its securities, except for repurchases from former employees and consultants in accordance with the terms of agreements in effect on the date hereof; (c) issue, deliver, dispose of sell, exchange, grant, pledge, encumber or sell transfer or authorize the issuance, delivery, disposal sale, grant, pledge, encumbrance or sale transfer of, any capital stock of Equity Interests in the Company of or any class or series Company Subsidiary or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock or any such convertible or exchangeable securities (including the granting of any additional Options); (d) except as set forth Equity Interests in Section 4.01(d) of the Company Disclosure Schedule, amend any term of any outstanding security of the Company or any Company Subsidiary; (e) , other than the issuance of Company Shares or, in connection with transactions permitted by Section 4.01(f)the case of clause (iv) only, incur Equity Interests in any capital expenditures or any obligations or liabilities in respect thereof, except for those Company Subsidiary pursuant to (i) contemplated by the capital expenditure budget for exercise of Company Options granted prior to the Company and the Company Subsidiariesdate hereof, (ii) incurred in the ordinary course exercise of business of Company Warrants and TOPR Warrants issued prior to the Company and the Company Subsidiaries or date hereof, (iii) the conversion of, or as a dividend on (if the payment of a dividend in cash would breach or violate the provisions of the Senior Credit Agreement), Company Preferred Shares issued prior to the date hereof (but not otherwise described the exchange of such Company Preferred Shares pursuant to the Exchange Agreement), (iv) issuance of Company Shares in clauses connection with the vesting of Restricted Shares and (iv) and/or (ii) which, in issuance of Company Shares under the aggregate, do not exceed $500,000Company Purchase Plan; (fd) except as set forth in the Company Disclosure Schedule corresponding to this Section 4.01(f)acquire, acquire directly or indirectly (whether pursuant to merger, stock or asset purchase purchase, joint venture or otherwise) ), in one transaction or a series of related transactions (i) any assets (including Person, any equity interests) having a fair market value Equity Interests or other securities in excess any Person, any division or business of $1 million any Person or (ii) all or substantially all of the equity interests assets of any Person or (ii) any business interest or division investment in real property (except to the extent (A) otherwise obligated pursuant to any binding agreement as of any Person having the date hereof, a fair market value in excess copy of $1 millionwhich has previously been made available to Parent or (B) solely among or between the Company and its Subsidiaries); (ge) sell, lease, encumber or otherwise dispose of any assets, other than (i) sales in the ordinary course of business consistent with past practice practice, (ii) obsolete equipment and property no longer used in the operation of the Company's business, and (iii) assets with which do not have a value, value of more than $100,000 individually or $500,000 in the aggregate, that do not exceed $500,000 and sales related to discontinued operations; (hf) (i) (A) incur (which shall not be deemed to include entering into credit agreements, lines of credit or similar arrangements until the Company or any Company Subsidiary becomes liable with respect to any indebtedness for borrowed money or guarantees thereof money, except borrowings under such arrangements) any indebtedness for borrowed money or guarantee any the terms of the Senior Credit Agreement, the U.K. Overdraft Facility or, solely to the extent borrowings are then not available under the Senior Credit Agreement, the Senior Subordinated Credit Agreement, in each case to fund working capital in the ordinary course consistent with past practice (provided that no such indebtedness or may be incurred with respect to the matters identified as "Prohibited Borrowings" in Section 6.1(f) of the Company Disclosure Schedule), (B) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary Subsidiary, (C) make any loans, advances or guarantee capital contributions to, or investments in, any debt securities of othersother Person, except (i) in the ordinary course of business consistent with past practice (which shall include, without limitation, borrowings under existing credit facilities of other than to the Company or the any Company Subsidiaries) Subsidiary and other than advancements to brokers and other commission based Company Employees or (ii) in an aggregate amount not to exceed $1 million; (i) except Company Independent Contractors in the ordinary course of business consistent with past practice, amendor (D) assume, modify guarantee or terminate endorse, or otherwise as an accommodation become responsible for, the obligations of any material contract, agreement or arrangement Person (other than obligations of the Company or any Company SubsidiarySubsidiary and the endorsements of negotiable instruments for collection in the ordinary course of business consistent with past practice), or (ii) enter into or materially amend any contract, agreement, commitment or arrangement to effect any of the transactions prohibited by this Section 6.1(f); (g) except with the prior written consent of Parent (which will not be unreasonably withheld or delayed) or with respect to Material Contracts that relate solely to capital expenditures that are permitted by Section 6.1(i) hereto, (i) enter into any contract, agreement or arrangement that if entered into prior to the date hereof would be a Material Contract (except for all revenue producing contracts that would otherwise be included within clause (i) of the definition of Material Contracts and would not otherwise fall within any of clauses (ii) through (xi) of the definition of Material Contracts), (ii) amend or modify in any material respect or terminate any Material Contract (except for all revenue producing contracts that would otherwise be included within clause (i) of the definition of Material Contracts and would not otherwise fall within any of clauses (ii) through (xi) of the definition of Material Contracts) or (iii) otherwise waive, release or assign any material rights, claims or benefits of the Company or any Company Subsidiary thereunder; (j) except in accordance with the terms of this Agreement, amend or modify under any Affiliate Material Contract; (k) enter into any Contract that would constitute a Material Contract or an Affiliate Contract had such Contract been in effect on the date hereof; (i) except in the ordinary course of business or as required by law or an agreement, policy or arrangement existing on the date hereof, increase the amount of compensation of any director of the Company or officer of the Company or make any increase in or commitment to increase any employee health, welfare or retirement benefits, (iih) except as required by law applicable Law or an agreement, policy the terms of any employment agreement or arrangement Company Plan existing on as of the date hereofof this Agreement, grant (i) unless provided for in the 2003 Budget, increase the compensation (including, without limitation, commission rates) or benefits of any severance present or termination pay or rights to any former director, officer or employee of the Company or any Company SubsidiarySubsidiaries, (ii) pay a bonus, whether accrued or unaccrued, to any present or former director, officer or employee of the Company or any Company Subsidiaries, (iii) adopt grant, or alter the terms of, any additional severance or termination pay or benefits to any present or former director, officer or employee of the Company Employee Plan oror its Subsidiaries, except (iv) loan or advance any money or other property to any present or former director, officer or employee of the Company or any Company Subsidiaries, other than advancements to brokers and other commission based Company Employees or Company Independent Contractors in the ordinary course of business consistent with past practice, (v) establish, adopt, enter into, amend or terminate any Company Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Plan if it were in existence as required by lawof the date of this Agreement, make (vi) grant any contribution equity or equity-based awards, other than in the ordinary course consistent with past practice, (vii) enter into any employment, consulting, independent contractor or similar agreement, or amend, supplement or modify the terms of any such existing agreements, (viii) hire, or offer to hire, any existing new employee or enter into any new independent contractor relationship, or agree to enter into any new independent contractor relationship (except (A) to replace employees or independent contractors departing after the date hereof or that have departed prior to the date hereof but have not yet been replaced, provided that the compensation and benefits offered to such plan replacement do not materially exceed that of the replaced employee or independent contractor, (B) for new employees who have aggregate pre-tax compensation (including bonuses and commissions of no greater than $200,000 per year, (C) with respect to offers of employment that are outstanding as of the date hereof, (D) for ordinary course hiring of brokers consistent with past practice in connection with the residential brokerage business of the Company and its Subsidiaries or (ivE) except as may be required employees assigned to properties managed by law, amend the Company or any of its Subsidiaries for which the compensation and benefits of such employees are fully reimbursed to the Company and its Subsidiaries) or (ix) terminate any employee or independent contractor of the Company or its Subsidiaries other than in any material respect any Company Employee Planwriting; (mi) except (x) as set forth on the 2003 Budget set forth in Section 6.1(i) of the Company Disclosure Schedule (the "2003 BUDGET") and (y) for authorization of ordinary course capital expenditures by Real Estate Investment Entities (other than with respect to the matters identified as "Prohibited Expenditures" in Section 6.1(f) of the Company Disclosure Schedule), authorize or make any single capital expenditure in excess of $50,000 or aggregate capital expenditures of the Company and the Company Subsidiaries, taken together, in excess of $250,000; (j) change the Company’s (x) 's methods of accounting in effect as of the date of the Company Balance Sheetat December 31, 2001, except as required by changes in GAAP or by Regulation S-X of the Exchange ActAct or as otherwise specifically disclosed in the Company SEC Documents filed prior to the date hereof, as concurred in by its independent public accountants or (y) fiscal yearaccountants; (ni) settle except for the payment of any deductible under an existing insurance policy (or compromise any Action a commercially reasonable substitute for which a company engaged in businesses similar to those of the Company has liability in an amount and its Subsidiaries) with respect to a Claim that is being settled by such insurance company, settle, pay, compromise or discharge any Claim that is in excess of $500,000 250,000 or is otherwise material to the business, financial condition or results of operations of the Company and the Company Subsidiaries, taken as a whole or (ii) settle, pay, compromise or discharge any Claim against the Company or any Company Subsidiary with respect to any individual Action or $2 million in arising out of the aggregatetransactions contemplated by this Agreement, the Asset Agreements, the Voting Agreements, the Confidentiality Agreement and the No-Raid Agreement; (ol) change other than in the ordinary course of business consistent with past practice, (i) make any material Tax election or take any position on any Company Return filed on or after the date of this Agreement or adopt any method of Tax accountingtherein that is materially inconsistent with elections made, make positions taken or change methods used in preparing or filing similar returns in prior periods, (ii) enter into any Tax election, file any amended Tax Return, settle settlement or compromise of any material Tax liability, agree to an extension or waiver of the statute of limitations (iii) file any amended Company Return with respect to the assessment or determination of any material TaxesTax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement with respect relating to any material Tax or (vi) surrender any right to claim a material Tax refund; (m) open any office in a new geographical territory, create any new business division or otherwise enter into any new line of business; (n) fail to continuously maintain in full force and effect its current insurance or a commercially reasonable substitute for a company engaged in businesses similar to those of the Company and its Subsidiaries; (o) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the Merger); (p) order willfully take any “plant closing” action that would result in a material breach of any provision of this Agreement or “mass layoff”, as those terms are defined the inability of the Company to satisfy the conditions precedent set forth in the Worker Adjustment and Retraining Notification Act of 1988, as amended, or other similar state or local law; orSection 9.3(a) hereto; (q) agreeexcept for (i) expense reimbursements and advances in the ordinary course of business consistent with past practice, resolve (ii) revenue producing agreements entered into with Real Estate Investment Entities in the ordinary course of business consistent with past practice having terms consistent with past practice and (iii) transactions with any non-employee member of the Company's Board of Directors or commit his or her Affiliates in the ordinary course of business consistent with past practice, enter into any contract, commitment or agreement with any Affiliate of the Company or its Subsidiaries or any of their immediate family members (including their spouses); (r) except as specifically contemplated by this Agreement and the Company Disclosure Schedules (without giving effect to Section 6.5), enter into any agreement not in existence as of the date hereof that would provide for the making of any payment or result in any adverse change in rights or obligations of the Company and its Subsidiaries as a result of the Merger, the Financing or the Additional Financing; and (s) authorize, agree or commit, verbally or in writing, to do any of the foregoing; provided . provided, however that the limitations set forth in clauses Section 4.01(aconduct of business by each of Insignia Opportunity Trust and Insignia Opportunity Partners, L.P. (collectively, "IOP") through Section 4.01(qand Insignia Opportunity Partners II, L.P. ("IOP II") shall not apply be subject to any actionthe foregoing clauses (a) through (s) to the extent such conduct is in the ordinary course of business consistent with past practice; provided, transaction or event occurring exclusively between further that the Company and any Company Subsidiary or between any conduct of business of Octane Ventures, LLC shall not be subject to the Company Subsidiariesforegoing clauses (a) through (s).

Company Interim Operations. Except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted hereby, without the prior written consent of Purchaser, such Acquiror (which consent shall not to be unreasonably withheld or delayed), from the date hereof until the Effective Time, the Company shall, and shall cause each of the Company Subsidiaries Subsidiary to, conduct its business in all material respects in the usual, regular and ordinary course consistent with past practice and shall use commercially reasonable efforts to (i) preserve intact its present business organizationorganizations, (ii) continue to make capital expenditures in accordance with the capital expenditure budget previously disclosed to Purchaser and (iii) maintain in effect all material foreign, federal, state and local licenses, approvals and authorizations, including, without limitation, all material licenses and permits that are required for the Company or any Company Subsidiary and its Subsidiaries to carry on its business as currently conductedand (iii) preserve existing relationships with its material customers, lenders, suppliers and others having material business relationships with them; (iv) maintain insurance coverages and its books, accounts and records in the usual manner consistent with prior practices; and (v) maintain and keep its properties and equipment in good repair, working order and condition (ordinary wear and tear excepted); provided, however, that in each case, the Company shall not be held responsible for any change or development relating to (A) U.S. or global economic or industry conditions, (B) changes in U.S. or global financial markets or conditions , (C) any generally applicable change in law, rule or regulation or GAAP or interpretation of any thereof and/or (D) the announcement of this Agreement or the transactions contemplated hereby. Without limiting the generality of the foregoing, except as set forth in Section 4.01 of the Company Disclosure Schedule or as otherwise expressly contemplated or permitted by this Agreement, from the date hereof until the Effective Time, without the prior written consent of Purchaser, such Acquiror (which consent shall not to be unreasonably withheld or delayed), the Company shall not, nor shall it permit any Company Subsidiary to, directly or indirectly: (a) amend its the Company's or any Company Subsidiary's certificate of incorporation, incorporation or by-laws or equivalent organizational documentslaws; (b) split, combine or reclassify any shares of capital stock of the Company or declare declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Company Common Stock or any other its capital stock of the Companystock, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase repurchase, or otherwise acquire any Company equity or equity related of its securities, except (i) for repurchases from former employees and consultants in accordance with dividends by Company Subsidiaries or (ii) pursuant to the existing terms of agreements in effect on the date hereofany Company Employee Plan; (c) issue, deliverdeliver or sell, dispose of or sell or authorize the issuance, delivery, disposal delivery or sale of, any shares of its capital stock of the Company of any class or series or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock, including, without limitation, in connection with the Company Employee Plans or other benefit plans or arrangements existing on the date hereof, other than (i) the issuance of Company Shares upon the exercise of stock or any such convertible or exchangeable securities options in accordance with their present terms and (including ii) the granting of any additional Options)options to acquire Company Shares to Directors of the Company pursuant to the Directors Stock Option Plan as in effect on the date hereof; (d) except as set forth in Section 4.01(d) of the Company Disclosure Schedule, amend any term of any outstanding security of the Company acquire or any Company Subsidiary; (e) other than in connection with transactions permitted by Section 4.01(f), incur any capital expenditures or any obligations or liabilities in respect thereof, except for those (i) contemplated by the capital expenditure budget for the Company and the Company Subsidiaries, (ii) incurred in the ordinary course of business of the Company and the Company Subsidiaries or (iii) not otherwise described in clauses (i) and/or (ii) which, in the aggregate, do not exceed $500,000; (f) except as set forth in the Company Disclosure Schedule corresponding agree to this Section 4.01(f), acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or a series of related transactions (i) any assets (including any equity interests) having a fair market value or businesses, other than (i) current assets in excess the ordinary course of $1 million or business, (ii) all or substantially all of the equity interests of any Person or any business or division of any Person having a fair market value aggregate amount set forth in excess of $1 millionthe Company's capital budget for fiscal year 2001 previously provided to Acquiror and identified as such and (iii) the aggregate amount set forth in the Company's hospital construction budget for fiscal year 2001 previously provided to Acquiror and identified as such; (ge) sell, lease, pledge, encumber or otherwise dispose of or agree to sell, lease, pledge, encumber or otherwise dispose of any assets, other than (i) sales in the ordinary course of business consistent with past practice of assets with a valuewhich are not material, individually or (ii) equipment and property no longer used in the aggregate, that do not exceed $500,000 operation of the Company's business and sales (iii) assets related to discontinued operations; (hf) incur (which shall not be deemed to include entering into credit agreements, lines of credit or similar arrangements until the Company or any Company Subsidiary becomes liable with respect to any indebtedness for borrowed money or guarantees thereof under such arrangements) any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any Company Subsidiary of its Subsidiaries or guarantee any debt securities of others, except (i) other than intercompany debt and borrowing under the Company's existing lines in the ordinary course of business consistent with past practice (which shall include, without limitation, borrowings under existing credit facilities of the Company or the Company Subsidiaries) or (ii) in an aggregate amount not to exceed $1 millionbusiness; (ig) except in the ordinary course of business consistent with past practicebusiness, amend, modify or terminate any material contract, agreement or arrangement of the Company or any Company Subsidiary, of its Subsidiaries or otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Subsidiaries thereunder; in each case, except for such actions as would not be material to the Company Subsidiary thereunder; (j) except in accordance with the terms of this Agreementand its subsidiaries, amend or modify any Affiliate Contract; (k) enter into any Contract that would constitute taken as a Material Contract or an Affiliate Contract had such Contract been in effect on the date hereofwhole; (i) except in the ordinary course of business or as required by law or an agreement, policy or arrangement existing on the date hereof, increase the amount of compensation of any director of the Company director, executive officer or officer of the Company employee or make any increase in or commitment to increase any employee health, welfare or retirement benefits, (ii) except as required by law or law, amend an agreement, policy or arrangement agreement existing on the date hereof or Company severance policy as of the date hereof, grant any severance or termination pay or rights to any director, officer or employee of the Company or any Company Subsidiary, (iii) adopt any additional Company Employee Plan employee benefit plan or, except in the ordinary course of business or as required by lawbusiness, make any contribution to any existing such plan or (iv) except as may be required by law, amend in any material respect any Company Employee Plan; (mi) materially change the Company’s (x) 's methods of accounting in effect as of the date of the Company Balance Sheetat June 30, 2000, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants or (y) fiscal yearaccountants; (nj) settle settle, or compromise propose to settle, any Action for which the Company has liability in an amount in excess of $500,000 with respect to any individual Action litigation, investigation, arbitration, proceeding or $2 million in the aggregate; (o) change any method of Tax accounting, make or change any Tax election, file any amended Tax Return, settle or compromise any other claim that is material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination business of material Taxes, enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund; (p) order any “plant closing” or “mass layoff”, as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988, as amended, or other similar state or local law; or (q) agree, resolve or commit to do any of the foregoing; provided that the limitations set forth in clauses Section 4.01(a) through Section 4.01(q) shall not apply to any action, transaction or event occurring exclusively between the Company and any Company Subsidiary or between any of the Company Subsidiaries., taken