Common use of Conduct of Business by Parent Clause in Contracts

Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent shall not do any of the following and shall not permit its subsidiaries to do any of the following: (a) Declare, set aside, or pay any dividends or make any other distributions (whether in cash, stock, equity securities or property) in respect to Parent's capital stock, except where (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) or (ii) the holders of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its subsidiaries in any amounts that would adversely affect Parent's financial condition or liquidity; (c) Effect any amendment to the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement); (d) Engage in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IV; (e) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire any business or any corporation, partnership, association or other business organization or division if such acquisition or agreement would require the inclusion in the S-4 of proforma financial information regarding such acquisition; or (g) Agree in writing or otherwise to take any of the actions described in Section 4.1 (a) through (f) above.

Conduct of Business by Parent. During Except for matters set forth in the period Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time Parent shall, and continuing until shall cause Sub to, conduct its business in the earlier usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the termination foregoing, except as contemplated by the Transaction Agreements, from the date of this Agreement pursuant to its terms or the Effective Time, Parent shall not, and shall not permit Sub to, do any of the following and shall not permit its subsidiaries to do any without the prior written consent of the followingCompany: (ai) Declare(A) declare, set aside, aside or pay any dividends on, or make any other distributions (whether in cash, stock, equity securities or property) in respect to of, any of its capital stock (in the case of Parent's capital stock, except where (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) or membership interests (iiin the case of Sub), (B) split, combine or reclassify any of its capital stock (in the holders case of Company Common Stock will otherwise receive an equivalentParent) or membership interests (in the case of Sub) or issue or authorize the issuance of any other securities in respect of, proportional dividend in lieu of or distribution in substitution for shares of its capital stock (based on in the Exchange Ratiocase of Parent) or membership interests (in the case of Sub), as adjusted pursuant to Section 1.6(e)(C) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchasepurchase, redeem, redeem or otherwise acquire, directly or indirectly, acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or its subsidiaries Sub, or alter through merger, liquidation, reorganization or restructuring or in any amounts that would adversely affect Parent's financial condition other fashion the corporate structure or liquidityownership of Parent or Sub; (cii) Effect issue, deliver, sell or grant (A) any amendment to shares of its capital stock (in the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders case of Parent's Common Stock ) or any of its membership interests (including in the case of Sub), (B) any Voting Parent Common Stock Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to be issued pursuant to this Agreement)acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units; (diii) Engage in any action that could cause amend the Merger to fail to qualify as a "reorganization" under Section 368(a) Parent Charter, the Parent By-laws or the comparable organizational documents of the Code, whether or not otherwise permitted by the provisions of this Article IVSub; (eiv) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire (A) by merging or consolidating with, or by purchasing any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division if thereof or (B) any assets; (A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan; (vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP; (vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets; (viii) (A) incur any indebtedness for borrowed money or guarantee any such acquisition indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement would require to maintain any financial statement condition of another person or enter into any arrangement having the inclusion economic effect of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other person; (ix) make or agree to make any new capital expenditure or expenditures; (x) make any Tax election or settle or compromise any Tax liability or refund; (xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the S-4 ordinary course of proforma financial information regarding such acquisitionbusiness consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party; (xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or (gxiii) Agree in writing take, authorize any of, or otherwise commit or agree to take any of of, the actions described in Section 4.1 (a) through (f) aboveforegoing actions.

Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent shall not do knowingly take any action a principal purpose of which is, and the reasonably likely result of which would be, a material delay in or interference with the consummation of the Merger. Neither Parent nor any Parent Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following and shall not permit its subsidiaries to do any without the prior written consent of Company, except as a result of entering into or as contemplated by this Agreement or except as set forth in Section 6.09 of the followingParent Disclosure Schedule: (a) Declare, set aside, amend or pay any dividends otherwise change its certificate of incorporation or make any other distributions (whether in cash, stock, equity securities bylaws or property) in respect to Parent's capital stock, except where (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) or (ii) the holders of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distributionequivalent organizational documents; (b) Purchaseissue, redeemsell, pledge, dispose of, grant, transfer, lease, license, guarantee or encumber, or otherwise acquireauthorize the issuance, directly sale, pledge, disposition, grant, transfer, lease, license or indirectlyencumbrance of, any (i) more than outstanding 20% of the shares of capital stock of Parent or its subsidiaries any shares of capital stock of a Parent Subsidiary of any class, or securities convertible into or exchangeable or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire more than 20% of the outstanding shares of such capital stock or any other ownership interest (including, without limitation, any phantom interest), of Parent or any Parent Subsidiary, other than the issuance of shares of Parent common stock pursuant to the exercise of stock options granted pursuant to the Parent Stock Plans, or (ii) any material property or material assets of Parent or any Parent Subsidiary, except providing products and services in the ordinary course of business consistent with past practice; (i) an acquisition (including, without limitation, by merger, consolidation, or acquisition of stock or assets) of any interest in any amounts that corporation, partnership, other business organization or person or any division thereof which would adversely affect Parent's be considered a "Significant Subsidiary" of the Parent (after taking into effect the Merger); (ii) except in connection with an acquisition permitted pursuant to the foregoing clause (i), incur any material indebtedness for borrowed money or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person which are material to the Parent (other than Parent and Parent Subsidiaries) for borrowed money or make any loans or advances, material to the business, assets, liabilities, financial condition or liquidity; (c) Effect any amendment to results of operations of Parent and the Company's Certificate of Incorporation that would have an adverse effect on Parent Subsidiaries, taken as a whole, other than borrowings under the rights of holders of Parent's Common Stock credit facility for use in operating the business; or (including iii) enter into or amend any contract, agreement, commitment or arrangement in which the Parent Common Stock is obligated to perform and, if fully performed, would not be issued pursuant to permitted under this AgreementSection 6.09(c); (d) Engage declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any action of its capital stock, except that could cause the Merger any Parent Subsidiary may pay dividends or make other distributions to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether Parent or not otherwise permitted by the provisions of this Article IVany other Parent Subsidiary; (e) Engage in any action with the intent to directly reclassify, combine, split or indirectly adversely impact subdivide any of the transactions contemplated by this Agreementits capital stock; (f) Following amend or change the filing period (or permit any acceleration, amendment or change) of exercisability of options granted under the S-4, acquire or agree to acquire any business or any corporation, partnership, association Parent Stock Plans or other business organization options and warrants or division if take any action to reprice any such acquisition or agreement would require the inclusion in the S-4 of proforma financial information regarding such acquisition; oroptions and warrants; (g) Agree in writing authorize or enter into any formal or informal agreement or otherwise make any commitment to take do any of the actions described foregoing or take any action which would result in Section 4.1 any of the conditions to the merger set forth herein not being satisfied. (ah) through take any action resulting in the delisting of Parent from the Amex; and (fi) abovetake any action resulting in a Parent Material Adverse Effect.

Conduct of Business by Parent. During Except for matters set forth in Section 5.01(a) of the period Parent Disclosure Letter or otherwise expressly permitted or expressly required by this Agreement or with the prior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement to the Effective Time, Parent shall, and continuing until shall cause each Parent Subsidiary to, use reasonable best efforts to (i) conduct its business in the earlier ordinary course and (ii) preserve intact its business organization, goodwill and assets, to keep available the services of its current officers and preserve its existing relationships with Governmental Entities and its significant customers, suppliers, licensors, licensees, distributors, lessors and others having significant business dealings with Parent and the Parent Subsidiaries. In addition, and without limiting the generality of the termination foregoing, except for matters set forth in Section 5.01(a) of the Parent Disclosure Letter or otherwise expressly permitted or expressly required by this Agreement or with the prior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement pursuant to its terms or the Effective Time, Parent shall not do any of the following not, and shall cause each Parent Subsidiary not permit its subsidiaries to to, do any of the following: (ai) Declare(A) declare, set aside, aside or pay any dividends on, or make any other distributions (distributions, whether in cash, stockstock or property or any combination thereof, equity securities or property) in respect to Parent's of, any of its capital stock, except where voting securities or other equity interests, other than dividends and distributions by a direct or indirect wholly owned Parent Subsidiary, (iB) an adjustment is made other than with respect to a wholly owned Parent Subsidiary, split, reverse split, combine, consolidate, subdivide or reclassify any of its capital stock, voting securities or other equity interests, or securities convertible into or exchangeable or exercisable for any capital stock, voting securities or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, voting securities or other equity interests, other than as permitted by Section 5.01(a)(ii), or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or other equity interests in, Parent or any Parent Subsidiary or any securities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for any capital stock or voting securities of, or other equity interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, voting securities or other equity interests, other than (1) the withholding of shares of Parent Common Stock to satisfy tax obligations with respect to awards granted pursuant to the Exchange Ratio in accordance with Section 1.6(e) or Parent Stock Plans and (ii2) the holders acquisition by Parent of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted awards granted pursuant to Section 1.6(e)) the Parent Stock Plans in connection with the Merger as if they had been holders forfeiture of Parent Common Stock on the record date for such dividend or distributionawards; (bii) Purchaseissue, redeemdeliver, sell, grant, pledge or otherwise acquire, directly encumber or indirectly, subject to any Lien other than Permitted Liens (A) any shares of capital stock of Parent or its subsidiaries any Parent Subsidiary (other than, in the case of a wholly owned Parent Subsidiary, to Parent or another wholly owned Parent Subsidiary), (B) any other voting securities of or other equity interests in Parent or any Parent Subsidiary, (C) any securities convertible into or exchangeable or exercisable for any capital stock or voting securities of, or other equity interests in, Parent or any Parent Subsidiary, (D) any warrants, calls, options or other rights to acquire any capital stock or voting securities of, or other equity interests in, Parent or any Parent Subsidiary, (E) any rights issued by Parent or any Parent Subsidiary that are linked in any amounts that would adversely affect way to the price of any class of Parent Capital Stock, or other equity interest in Parent's financial condition , or liquidityany shares of capital stock of, or other equity interest in, any Parent Subsidiary, the value of Parent, any Parent Subsidiary or any part of Parent or any Parent Subsidiary or any dividends or other distributions declared or paid on any shares of capital stock of, or other equity interest in, Parent or any Parent Subsidiary or (F) any Parent Voting Debt, in each case other than (1) issuances and sales of Parent Common Stock, securities convertible into or exchangeable or exercisable for Parent Common Stock, through any private or public registered offering, acquisition or other transaction, from time to time, of up to 7.5% in the aggregate for all such issuances and sales of the shares of Parent Common Stock issued and outstanding as of the date of this Agreement, (2) issuances of awards under the Parent Stock Plan in the ordinary course of business, (3) the issuance of shares of Parent Common Stock upon the lapse of any restrictions on any Parent Performance RSU Awards, in accordance with their terms, and (4) the issuance, delivery, sale, grant, pledge, encumbrance or subjecting to any Lien of any of the foregoing (A) through (F) of a Parent Subsidiary, in favor of or to Parent or a wholly owned Parent Subsidiary; (ciii) Effect any amendment to the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock amend (including whether by merger, consolidation or otherwise) the Parent Common Stock to be issued pursuant to Charter (other than the Parent Charter Amendment), the Parent Bylaws, the Merger Sub Charter or the Merger Sub Bylaws (other than ministerial changes); (iv) make any change in financial accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law (after the date of this Agreement); (dv) Engage in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IV; (e) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire in any transaction (whether by means of merger, share exchange, consolidation, tender offer, asset purchase or otherwise) any equity interest in or business or of any firm, corporation, partnership, company, limited liability company, trust, joint venture, association or other business organization entity or division if such thereof or any properties or assets other than (A) the acquisition or agreement would require the inclusion lease of Oil and Gas Properties or other assets in the S-4 ordinary course of proforma business consistent with past practice or (B) acquisitions of strategic investments as to which the aggregate amount of the consideration paid or transferred by Parent, Merger Sub and the Parent Subsidiaries in connection with all such transactions would not exceed $30,000,000; (vi) directly or indirectly sell, lease, transfer, farmout, license, encumber with Liens (except for Permitted Liens and for Liens which do not, individually or in the aggregate, materially impair and would not reasonably be expected to materially impair the continued use and operation of the assets or properties to which they relate in the conduct of the business of Parent and each Parent Subsidiary as presently conducted), discontinue or otherwise dispose of, or agree to sell, lease, transfer, farmout, license, encumber with Liens (except for Permitted Liens and for Liens which do not, individually or in the aggregate, materially impair and would not reasonably be expected to materially impair the continued use and operation of the assets or properties to which they relate in the conduct of the business of Parent and each Parent Subsidiary as presently conducted), discontinue or otherwise dispose of, any portion of its assets or properties; other than (A) sales, leases or dispositions for which the consideration is less than $30,000,000 in the aggregate, (B) the sale of Hydrocarbons or CO2 in the ordinary course of business, or (C) the sale or other disposition of equipment that is surplus, obsolete or replaced in the ordinary course of business; (vii) make any loans or advances to any other Person, other than (i) routine expense advances to its employees in the ordinary course of business consistent with past practice, (ii) loans or advances in the form of trade credit granted to customers in the ordinary course of business, and (iii) pursuant to customary provisions in joint operating agreements; (viii) incur, create or assume any Indebtedness other than the incurrence, creation or assumption of any Indebtedness permitted under or that is in compliance with the Parent Indentures or the Parent Credit Agreement; (ix) enter into any new line of business outside of its existing business; (x) adopt a plan of complete or partial liquidation or dissolution; (xi) take any actions or omit to take any actions that are reasonably likely to (A) result in any of the conditions set forth in Article VII not being satisfied, (B) result in new or additional required approvals from any Governmental Entity in connection with the Transactions or (C) prevent or materially impede, interfere with, hinder or delay the consummation of the Transactions, including the Merger; (xii) other than in the ordinary course of business consistent with past practice, (A) change any material method of Tax accounting, (B) make, change or rescind any material election relating to Taxes (including any election for any joint venture, partnership, limited liability company or other investment where Parent or any Parent Subsidiary has the authority to make such binding election in its discretion, but excluding any election that must be made periodically and is made consistent with past practice), or (C) settle or compromise any material audit, assessment, Tax claim or other controversy relating to Taxes for an amount materially in excess of the amount accrued or reserved with respect thereto on the financial information regarding such acquisitionstatements of Parent included in the Filed Parent Reporting Documents; (xiii) enter into or amend any Parent Related Party Transaction; or (gxiv) Agree in writing enter into any Contract, commitment or otherwise arrangement to take do any of the actions described in Section 4.1 (a) through (f) aboveforegoing.

Conduct of Business by Parent. During the period The Parent covenants and agrees that, from the date of this Agreement to the Effective Time, the Parent shall, and continuing until shall cause Merger Sub to, conduct their business in the earlier usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the termination foregoing, from the date of this Agreement pursuant to its terms or the Effective Time, Parent shall not, and shall not permit Merger Sub to, do any of the following and without the prior written consent of the Company (which consent shall not permit its subsidiaries to do any of the following:be unreasonably withheld or delayed): (ai) Declare(A) declare, set aside, aside or pay any dividends on, or make any other distributions (whether in cash, stock, equity securities or property) in respect to Parent's of, any of its capital stock, except where (iB) an adjustment is made to split, combine or reclassify any of its capital stock or issue or authorize the Exchange Ratio issuance of any other securities in accordance with Section 1.6(erespect of, in lieu of or in substitution for shares of its capital stock, (C) or (ii) the holders of Company Common Stock will otherwise receive an equivalentpurchase, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, redeem or otherwise acquire, directly or indirectly, acquire any shares of capital stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of Parent complete or its subsidiaries partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of, or alter through merger, liquidation, reorganization or restructuring or in any amounts that would adversely affect Parent's financial condition or liquidityother fashion its corporate structure; (cii) Effect issue, deliver, sell or grant (A) any amendment shares of its capital stock, (B) any securities convertible into or exchangeable for, or any options, warrants or rights to the Company's Certificate acquire, any such shares of Incorporation that would have an adverse effect on the its capital stock, or (C) any “phantom” stock, “phantom” stock rights, stock appreciation rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement)or stock-based performance units; (diii) Engage in any action that could cause amend the Parent Charter, the Parent Bylaws or the comparable organizational documents of Merger to fail to qualify Sub, other than as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IVcontemplated herein; (eiv) Engage sell, transfer, deliver, lease, license, sublicense, mortgage, pledge, encumber or otherwise dispose of (in whole or in part), or create, incur, assume or subject any lien on, any of its assets (including any Parent Intellectual Property) other than (A) in the ordinary course of business consistent with past practice, but in no event shall such dispositions exceed $50,000 individually or $100,000 in the aggregate, or (B) pursuant to the terms of contracts entered into as of the date of this Agreement, which shall be disclosed on the Parent Disclosure Letter; (v) enter into or amend any contract, transaction, indebtedness or other arrangement in which any of its directors or other affiliates, or any of their respective affiliates or family members have a direct or indirect financial interest; (vi) (A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any action with respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union, or (E) make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan; (vii) make any change in accounting methods, principles or practices affecting its reported consolidated assets, liabilities or results of operations, except insofar as may have been required by a change in GAAP; (viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the intent to directly or indirectly adversely impact economic effect of any of the transactions contemplated by this Agreementforegoing, or (B) make any loans, advances or capital contributions to, or investments in, any other person; (fix) Following the filing of the S-4, acquire make or agree to acquire make any business new capital expenditure or expenditures; (x) make any corporationmaterial Tax election, partnershipsettle or compromise any material Tax liability or refund or file any amended Tax Return; (xi) enter into any transaction with, association or other business organization enter into any agreement, arrangement or division if such acquisition or agreement understanding with any of Parent’s affiliates that would require the inclusion in the S-4 be required to be disclosed pursuant to Item 404 of proforma financial information regarding such acquisitionSEC Regulation S-B; or (gxii) Agree in writing take, authorize or otherwise commit or agree to take any of of, the actions described in Section 4.1 (a) through (f) aboveforegoing actions.

Conduct of Business by Parent. During the period from the date of Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement and continuing Agreement, until the earlier of the termination of this Agreement pursuant or the Effective Time, Parent shall, and cause each of its subsidiaries to, conduct its and their respective businesses in the ordinary course and consistent with past practices. Except as set forth in Section 5.4 of the Parent Disclosure Schedule, as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to its terms by the Company, in writing, after the date hereof until the earlier of the termination of this Agreement or the Effective Time, Parent shall not do any of the following not, and shall not permit any of its subsidiaries to do any of the followingto: (a) Declareamend or otherwise change its certificate of incorporation or by-laws; (b) issue, sell, pledge, dispose of, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of (i) any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest, thereof, or (ii) any of its assets, tangible or intangible; (c) declare, set aside, make or pay any dividends dividend or make any other distributions (whether distribution, payable in cash, stock, equity securities property or property) in otherwise, with respect to Parent's its capital stock, except where (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) or (ii) the holders of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders other than from any subsidiary of Parent Common Stock on the record date for such dividend to Parent or distributionto any other subsidiary of Parent; (bd) Purchasereclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock of Parent or its subsidiaries in any amounts that would adversely affect Parent's financial condition or liquiditystock; (ci) Effect acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any amendment to the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement); (d) Engage interest in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IV; (e) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire any business or any corporation, partnership, association partnership or other business organization or division if such acquisition thereof or agreement would require the inclusion any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or, except in the S-4 ordinary course of proforma financial information regarding business, consistent with past practice, purchase any property or assets of any other person, (ii) [other than in the ordinary course of business consistent with past practices,] incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, or (iii) enter into any Parent Material Contract; (f) make any capital expenditure or enter into any contract or commitment therefore, other than in the ordinary course of business consistent with past practices; (g) amend, terminate or extend any Parent Material Contract; (h) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date when such acquisitionliability would have been paid in the ordinary course of business consistent with past practice; or (gi) Agree agree, in writing or otherwise otherwise, to take or authorize any of the foregoing actions described or any action which would make any representation or warranty contained in Section 4.1 (a) through (f) aboveArticle IV untrue or incorrect.

Conduct of Business by Parent. During the period from the date of Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement and continuing Agreement, until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent shall, and cause its subsidiaries to conduct their respective businesses in the ordinary course and consistent with past practices. Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to by the Company, in writing, after the date hereof Parent shall not do any of the following not, and shall not permit any of its subsidiaries to do any of the followingto: (a) Declareamend or otherwise change its articles of incorporation or by-laws, other than to increase the number of authorized shares of Parent Common Stock or Parent Preferred Stock, or to otherwise implement the terms and conditions of this Agreement, or as permitted by this Agreement; (b) issue, sell, pledge, dispose of, encumber or authorize the issuance, sale, pledge disposition, grant or encumbrance of any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest thereof; (c) declare, set aside, make or pay any dividends dividend or make any other distributions (whether distribution, payable in cash, stock, equity securities property or property) in otherwise, with respect to Parent's its capital stock; (d) (i) reclassify, combine, split, or subdivide, directly or indirectly, any of its capital stock, except where (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) or (ii) the holders of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock stock, except from any officer, director or employee upon termination of Parent such officer, director or its subsidiaries in any amounts that would adversely affect Parent's financial condition or liquidity; (c) Effect any amendment to the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement); (d) Engage in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IVemployee; (e) Engage (i) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any interest in any action corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets of any other person, (ii) incur any indebtedness for borrowed money other than pursuant to agreements disclosed in the Parent Disclosure Schedule, or issue any debt securities other than pursuant to agreements disclosed in the Parent Disclosure Schedule or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances other than pursuant to leasing oil and gas properties or oil and gas development agreements entered into in the ordinary course of Parent’s business, consistent with past practice, or (iii) enter into any new contract or agreement which would require on the intent Parent Disclosure Schedule pursuant to directly or indirectly adversely impact any of the transactions contemplated by Section 4.7 and not otherwise permitted pursuant to this Agreement; (f) Following make any capital expenditure or enter into any contract or commitment therefore; (g) amend, terminate or extend any contract or agreement listed on the filing Parent Disclosure Schedule pursuant to Section 4.7; (h) delay or accelerate payment of any account payable or other liability of the S-4, acquire Company beyond or agree to acquire any business in advance of its due date or any corporation, partnership, association or other business organization or division if the date when such acquisition or agreement liability would require the inclusion have been paid in the S-4 ordinary course of proforma financial information regarding such acquisitionbusiness consistent with past practice; (i) take any action, or permit any event or condition to occur or exist, which would cause any representation or warranty of Parent to be untrue; or (gj) Agree agree, in writing or otherwise otherwise, to take or authorize any of the foregoing actions described or any action which would make any representation or warranty contained in Section 4.1 (a) through (f) aboveArticle IV untrue or incorrect.

Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent and, with respect to clause (e), its subsidiaries, shall not do any of not, except to the following and extent that Company shall not permit its subsidiaries to do any of the followingotherwise consent in writing: (a) Declare, set aside, aside or pay any dividends on or make any other distributions (whether in cash, stockshares, equity securities or property) in respect to Parent's of any share capital or split, combine or reclassify any share capital or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, except where (i) an adjustment is made other than dividends or distributions by any of Parent's subsidiaries to the Exchange Ratio in accordance with Section 1.6(e) Parent or (ii) the holders any of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distributionParent's subsidiaries; (b) Purchase, redeem, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its subsidiaries subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any amounts that would adversely affect Parent's financial condition employee pursuant to stock option or liquiditypurchase agreements in effect on the date hereof; (c) Effect Cause, permit or propose any amendment amendments to the Company's Parent Certificate of Incorporation that would have an adverse effect on the rights or Bylaws (or similar governing instruments of holders any of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreementits subsidiaries); (d) Engage Revalue any of its assets or, except as required by GAAP, make any change in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Codeaccounting methods, whether principles or not otherwise permitted by the provisions of this Article IVpractices; (ei) Engage in Acquire or enter into a definitive agreement to acquire by merging or consolidating with, or by purchasing any action with the intent to directly or indirectly adversely impact any material portion of the transactions contemplated capital stock or assets of, or by this Agreement; (f) Following the filing of the S-4any other manner, acquire or agree to acquire any business or any corporation, partnership, association or other business organization or division if thereof or (ii) be acquired by or enter into a definitive agreement to be acquired by merging or consolidating with, or by another entity purchasing any material portion of the business of Parent or its subsidiaries, taken as a whole; provided, however, that the foregoing clauses (i) and (ii) shall not apply to any such acquisition transaction or agreement would require series of transactions to effect the inclusion foregoing (a "Permitted Parent Transaction") whereby the consideration paid or payable under a transaction described in clause (i) is less than or equal to $1.45 billion or in the S-4 case of proforma financial information regarding a transaction described in clause (ii) the fully diluted capitalization of Parent (as defined below)is converted or would be convertible into less than 65% of the fully diluted capitalization of the resulting entity. For purposes of this Section 4.3(c), the value of noncash consideration with respect to clause (i) shall be, as to shares of Parent Common Stock, the number of such acquisition; orshares issuable in such transaction multiplied by the closing price of Parent Common Stock on NASDAQ on the date such transaction is closed or a definitive agreement is entered into and, as to noncash consideration, the fair market value of such consideration on the date such transaction is closed or a definitive agreement is entered into, with such fair market value to be determined in good faith by the Board of Directors of Parent. For purposes of this Section 4.3(e), the fully diluted capitalization of Parent immediately prior to such a transaction shall mean the number of shares of Parent Common Stock that (A) assumes that the Merger occurred as of Xxxxx 00, 0000, (X) the shares of Parent Common Stock issuable upon the Merger are based on Company Common Stock and other rights to acquire Company Common Stock as of March 31, 2001 and (C) is comprised all shares of outstanding Parent Common Stock, options and warrants to acquire Parent Common Stock and shares of Parent Common Stock issuable upon conversion of the Parent Convertible Notes and any other convertible debentures. (gf) Agree in writing or otherwise to take any of the actions described in Section 4.1 paragraphs (a) through (fe) above.. ARTICLE V

Conduct of Business by Parent. During Except for matters set forth in Section 5.2 of the period Parent Disclosure Schedule or otherwise contemplated by this Agreement or as required by applicable Law, from the date of this Agreement to the Effective Time, Parent shall, and continuing until shall cause each of its Subsidiaries to, conduct its business in the earlier ordinary course consistent with past practice and, to the extent consistent therewith, use commercially reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and maintain its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. In addition, and without limiting the generality of the termination foregoing, except for matters set forth in Section 5.2 of the Parent Disclosure Schedule or otherwise contemplated by this Agreement or as required by applicable Law, from the date of this Agreement pursuant to its terms or the Effective Time, Parent shall not, and shall not permit any of its Subsidiaries to, do any of the following and without the prior written consent of Company, which consent shall not permit its subsidiaries to do any of the followingbe unreasonably withheld, delayed or conditioned: (a) Declare(i) declare, set aside, aside or pay any dividends on, or make any other distributions (whether in cash, stock, equity securities or property) in respect to Parent's of, any of its capital stock, except where (i) an adjustment is made other than dividends and distributions by a direct or indirect wholly-owned Subsidiary of Parent to the Exchange Ratio in accordance with Section 1.6(e) or its parent company, (ii) split, combine or reclassify any of its capital stock or issue or authorize the holders issuance of Company Common Stock will otherwise receive an equivalentany other securities in respect of, proportional dividend in lieu of or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders substitution for shares of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeemits capital stock, or (iii) purchase, redeem or otherwise acquire, directly or indirectly, acquire any shares of capital stock of Parent or any of its subsidiaries Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (b) issue, deliver, sell or grant (i) any shares of its capital stock or other voting securities, (ii) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, voting securities or convertible or exchangeable securities or (iii) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than the issuance of shares of Parent Common Stock upon the exercise of Parent Stock Options by any employee, officer or director of Parent outstanding on the date of this Agreement and in any amounts that would adversely affect Parent's financial condition or liquidityaccordance with their present terms; (c) Effect amend the Parent Charter Documents or other comparable charter or organizational documents of any amendment to the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders Subsidiary of Parent's Common Stock (including , except for the Certificate Amendment and the Parent Common Stock to be issued pursuant to this Agreement)By-Law Amendments; (d) Engage in any single transaction or series of related transactions having a purchase price (including any assumed debt) in excess of $2 million in the aggregate, acquire or agree to acquire (i) any Person or business, whether by merging or consolidating with, or by purchasing a substantial equity interest in or portion of the assets of such Person or business, or otherwise or (ii) any assets that are material, individually or in the aggregate, to Parent and its Subsidiaries, taken as a whole; (e) (i) subject to Section 5.2(b), grant or announce any incentive awards or any increase in compensation, severance or termination pay to any employee, officer, director or other service provider of Parent or any of its Subsidiaries, except in the ordinary course of business consistent with past practice or to the extent required under existing Parent Employee Plans or existing Parent Employment Agreements or by applicable Law, (ii) hire any new employees or officers, except in the ordinary course of business consistent with past practice with respect to employees or officers with an annual base salary and incentive compensation opportunity not to exceed $200,000 per employee or officer, (iii) establish, adopt, enter into, amend, modify or terminate in any material respect any collective bargaining agreement or Parent Employee Plan, or (iv) take any action to accelerate any rights or benefits, pay or agree to pay any pension, retirement allowance, termination or severance pay, bonus or other employee benefit, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement or Parent Employee Plan; (f) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP; (g) sell, lease (as lessor), license or otherwise dispose of or subject to any Lien (other than any Permitted Lien) any properties or assets that could cause are material, individually or in the aggregate, to Parent and its Subsidiaries, taken as a whole, except licenses of or other grants of rights to use Intellectual Property in the ordinary course of business consistent with past practice and sales of inventory and excess or obsolete assets in the ordinary course of business consistent with past practice; (h) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice; (i) make or agree to make any new capital expenditure or expenditures (other than in the ordinary course of business or capital expenditures that are contemplated by Parent’s annual budget for 2011 and capital expenditure plan for 2012 which have been made available to the Company) that are in excess of $2.5 million in the aggregate; (j) with respect to any Parent Intellectual Property, except in the ordinary course of business consistent with past practice, and except for agreements between or among Parent and its Subsidiaries, (A) encumber, impair, abandon, fail to maintain, transfer, license to any Person (including through an agreement with a reseller, distributor, franchisee or other similar channel partner), or otherwise dispose of any right, title or interest of Parent or any of its Subsidiaries in any Parent Intellectual Property or Parent Software Products or (B) divulge, furnish to or make accessible any material confidential or other non-public information in which Parent or any of its Subsidiaries has trade secret or equivalent rights within the Parent Intellectual Property to any Person who is not subject to an enforceable written agreement to maintain the confidentiality of such confidential or other non-public information; (k) make or change any material Tax election or settle or compromise any Tax liability or claim in excess of $1 million in the aggregate; (l) waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises that (i) involve the payment of monetary damages equal to or lesser than the amounts specifically reserved with respect thereto on the balance sheet as of December 31, 2010 included in the Parent SEC Documents or that do not exceed $1 million individually or in the aggregate, (ii) if involving any non-monetary outcome, will not have a material effect on the continuing operations of Parent and (iii) are with respect to ordinary course customer disputes; (m) enter into any new line of business outside of Parent’s existing business; (n) take any action, or knowingly fail to take any action, which action or failure to act would prevent or impede, or would be reasonably likely to prevent or impede, the Merger to fail to qualify from qualifying as a "reorganization" under reorganization within the meaning of Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IV; (e) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire any business or any corporation, partnership, association or other business organization or division if such acquisition or agreement would require the inclusion in the S-4 of proforma financial information regarding such acquisition; or (go) Agree in writing authorize any of, or otherwise commit or agree to take any of, the foregoing actions. For purposes of this Section 5.2, if any action, transaction or omission is permitted by the terms of a subsection hereof that specifically relates to the subject matter of the actions described subsection, such action, transaction or omission shall be deemed permitted under all other subsections of this Section 5.2 even if such action, transaction or omission has ancillary effects on other subject matters contemplated by other subsections of this Section 5.2. Nothing contained in Section 4.1 (a) through (f) abovethis Agreement is intended to give the Company, directly or indirectly, the right to control or direct the operations of Parent or any of its Subsidiaries prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.

Conduct of Business by Parent. During Parent covenants and agrees that, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, unless the Company shall otherwise agree in writing, which agreement shall not be unreasonably withheld or delayed, Parent shall not conduct its business and shall cause the businesses of the Parent Subsidiaries to be conducted in the ordinary course of business except as expressly contemplated by this Agreement. Except as contemplated by this Agreement, Parent shall not, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, directly or indirectly do any of the following and without the prior written consent of the Company, which consent shall not permit its subsidiaries to do any of the followingbe unreasonably withheld or delayed: (a) Declareamend or otherwise change the Certificate of Incorporation or Bylaws of Parent other than incident to a stock split or combination; (b) (i) declare, set aside, make or pay any dividends dividend or make any other distributions distribution (whether in cash, stock, equity securities stock or propertyproperty or any combination thereof) in respect to Parent's of any of its capital stock, except where (i) an adjustment is made for quarterly cash dividends and stock dividends and any Parent Subsidiary may declare and pay a dividend to the Exchange Ratio in accordance with Section 1.6(e) its parent or Parent or (ii) reclassify the holders of Company Parent Common Stock will otherwise receive an equivalentor issue or authorize or propose the issuance of any other securities in respect of, proportional dividend in lieu of or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders substitution for shares of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its subsidiaries in any amounts that would adversely affect Parent's financial condition or liquidityStock; (c) Effect issue any amendment to the Company's Certificate shares of Incorporation that would have an adverse effect on the rights of holders of Parent's Parent Common Stock (including except restricted stock or common stock issued pursuant to stock options issued under the Parent Stock Option Plans or in any stock dividend) in one transaction or series of related transactions if the shares so issued constitute more than 15% of the outstanding shares of Parent Common Stock (after giving effect to be issued pursuant to this Agreementsuch issuance); (d) Engage in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(aacquire (by merger, consolidation or acquisition of stock or assets) of the Code, whether or not otherwise permitted by the provisions of this Article IV; (e) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire any business or any corporation, partnership, association partnership or other business organization or division thereof if such acquisition or agreement the consideration therefor would require the inclusion in the S-4 of proforma financial information regarding such acquisitionexceed $150,000,000; orand (ge) Agree in writing take, or otherwise agree to take take, any of the actions described in Section 4.1 (aSections 5.3(a) through (fc) above, or any action which would make any of the representations or warranties of Parent contained in this Agreement untrue or incorrect in any material respect as contemplated hereby or prevent Parent from performing or cause Parent not to perform in any material respect its covenants hereunder.

Conduct of Business by Parent. Pending the Merger. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent covenants and agrees that, unless the Company shall otherwise agree in writing, Parent shall conduct its business in the ordinary course of business and consistent with past practice and shall not do directly or indirectly do, or propose to do, any of the following and shall not permit its subsidiaries to do any without the prior written consent of the followingCompany: (a) Declareamend or otherwise change Parent's Articles of Incorporation or By-Laws; (i) declare, set aside, make or pay any dividends dividend or make any other distributions distribution (whether in cash, stock, equity securities stock or propertyproperty or any combination thereof) in respect to Parent's of any of its capital stock, except where (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) ; or (ii) the holders issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of Company Common Stock will otherwise receive an equivalentany kind to acquire any shares of, proportional dividend its capital stock of any class or distribution (based on the Exchange Ratio, as adjusted other property or assets whether pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders any rights agreement, stock option plans or otherwise, provided that Parent may issue shares of Parent Common Stock pursuant to currently outstanding options or employee stock purchases referred to on the record date for Parent Schedule in response to Section 3.2 above and Parent may issue options pursuant to its 1998 Equity Compensation Plan in amounts and on terms consistent with past practice, provided that such dividend or distribution; (b) Purchase, redeem, or otherwise acquire, directly or indirectly, any option grants do not exceed 50,000 shares of capital stock of Parent or its subsidiaries in any amounts that would adversely affect Parent's financial condition or liquiditythe aggregate; (c) Effect any amendment to the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement); (d) Engage in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IV; (e) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division if thereof, or otherwise acquire or agree to acquire any assets of any other person, or dispose of any assets, which, in any such acquisition case, would materially delay or agreement would require prevent the inclusion in consummation of the S-4 of proforma financial information regarding such acquisitionMerger and the other transactions contemplated by this Agreement; or (gd) Agree take any action to change its accounting policies or procedures except as required by a change in GAAP occurring after the date hereof; or (e) take or agree in writing or otherwise to take take, (i) any of the actions described in this Section 4.1 4.2; (aii) through any action which would make any of Parent's representations or warranties in this Agreement, if made on and as of the date of such action or agreement, untrue or incorrect in any material respect; (fiii) aboveany action which could prevent it from performing, or cause it not to perform, its obligations under this Agreement; (iv) any action that would cause the Merger not to be treated as a reorganization within the meaning of Section 368(a) of the Code; or (v) any action that would prevent or impede the Merger from qualifying as a "pooling of interests" for accounting purposes.

Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent shall not do any of the following and shall not permit its subsidiaries to do any of the following: (a) Declare, set aside, aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect to Parent's of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, except where (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) or (ii) the holders of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its subsidiaries subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any amounts that would adversely affect Parent's financial condition employee pursuant to stock option or liquiditypurchase agreements in effect on the date hereof; (c) Effect any amendment to the Company's Certificate Adopt a plan of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement)complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization; (d) Engage in any action that could reasonably be expected to cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, Code whether or not otherwise permitted by the provisions of this Article IV;; or (e) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire Acquire or agree to acquire by merging, consolidating with, or by purchasing any equity interest in or a material portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division if such acquisition thereof, or agreement would require the inclusion acquire, sell or otherwise dispose of any assets or enter into any joint ventures, strategic partnerships or alliances, in each case other than in the S-4 ordinary course of proforma financial information regarding such acquisition; or business consistent with past practice or for consideration (gcapital stock of Parent shall be measured at the then current market price per share) Agree in writing or otherwise to take any excess of the actions described in Section 4.1 (a) through (f) above$20,000,000.

Conduct of Business by Parent. During the period from the date of Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement and continuing Agreement, until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent shall not do any shall, and cause its subsidiaries to conduct their respective businesses in the ordinary course and consistent with past practices. Except as set forth in Section 5.4 of the following Parent Disclosure Schedule, as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to by the Company, in writing, after the date hereof Parent shall not, and shall not permit any of its subsidiaries to do any of the followingto: (aA) Declareamend or otherwise change its certificate of incorporation or by-laws, other than to increase the number of authorized shares of Parent Common Stock or Parent preferred stock, or to otherwise implement the terms and conditions of this Agreement, or as permitted by this Agreement; (B) issue, sell, pledge, dispose of, encumber or authorize the issuance, sale, pledge disposition, grant or encumbrance of (i) any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest thereof, other than (x) any issuance in connection with a Qualified Financing, (y) any issuance pursuant to any outstanding security or agreement of Parent, or (z) any issuance or sale pursuant to any plan for or agreement with any officer, director or employee of Parent; or (ii) any of its assets, tangible or intangible, except pursuant to contracts or agreements identified in Parent Disclosure Schedule; (C) declare, set aside, make or pay any dividends dividend or make any other distributions (whether distribution, payable in cash, stock, equity securities property or property) in otherwise, with respect to Parent's its capital stock, except where except, if at all, with respect to shares which may be issued in a Qualified Financing; (D) (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) reclassify, combine, split, or subdivide, directly or indirectly, any of its capital stock, or (ii) the holders of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock stock, except from any officer, director or employee upon termination of Parent such officer, director or its subsidiaries in any amounts that would adversely affect Parent's financial condition or liquidityemployee; (cE) Effect (i) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any amendment to the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement); (d) Engage interest in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IV; (e) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire any business or any corporation, partnership, association partnership or other business organization or division if such acquisition thereof or agreement would require the inclusion any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets of any other person, (ii) incur any indebtedness for borrowed money other than pursuant to agreements disclosed in the S-4 Parent Disclosure Schedule, or issue any debt securities other than pursuant to agreements disclosed in the Parent Disclosure Schedule or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of proforma financial information regarding any person, or make any loans or advances other than pursuant to licensing/development agreements entered into in the ordinary course of Parent's business, consistent with past practice, or (iii) enter into any new Parent Contract not otherwise permitted pursuant to this Agreement; (F) make any capital expenditure or enter into any contract or commitment therefore other than pursuant to licensing/development agreements disclosed in Section 4.6 of the Parent Disclosure Schedule; (G) amend, terminate or extend any Parent Contract; (H) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date when such acquisitionliability would have been paid in the ordinary course of business consistent with past practice; (I) take any action, or permit any event or condition to occur or exist, which would cause any representation or warranty of Parent to be untrue; or (gI) Agree agree, in writing or otherwise otherwise, to take or authorize any of the foregoing actions described or any action which would make any representation or warranty contained in Section 4.1 Article IV untrue or incorrect. Notwithstanding the foregoing, and anything to the contrary in this Agreement, the parties acknowledge and agree that Parent may negotiate, execute, deliver and perform agreements to establish customary benefit and compensation arrangements for its officers, directors and employees, appoint additional officers or directors and hire new employees and enter into customary agreements with them, enter in to customary arrangements to obtain insurance, enter into formal arrangements concerning its occupancy and use of its current headquarters space in New York, New York, amend, create and adopt such corporate governance policies, procedures, rules and regulations, as may be appropriate in connection with Parent's listing application or SOXA, take actions which are appropriate or necessary to enhance the corporate staffing and operations of Parent, and take actions which are appropriate or necessary to memorialize the registration rights of Parent's stockholders as heretofore disclosed to Company's management (aeach of the foregoing, a "Permitted Parent Action"), and no such Permitted Parent Action shall be deemed to breach any Parent representation, warranty, covenant or agreement in this Agreement, provided, that no such Permitted Parent Action shall have a material adverse effect on Parent and that Parent shall notify the Company of each such Permitted Parent Action. In appointing officers or directors between the date of this Agreement and the Closing Date pursuant to this paragraph, Parent shall only appoint, if any at all, (i) through independent directors, (fii) aboveother directors to replace existing directors, and (iii) one or more officers to replace functions currently performed by any officer or officers being replaced. In no event will any contract with any officer be in an amount which individually, or taken together with all other contracts with any such newly appointed officers, in the aggregate, is material to Parent.

Conduct of Business by Parent. During the period Pending Closing. Parent covenants and agrees with Prize that, from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, each of the Parent shall not do Companies will conduct its business only in the ordinary and usual course consistent with past practices. Notwithstanding the preceding sentence, Parent covenants and agrees with Prize that, except as specifically contemplated in this Agreement, from the date of this Agreement until the Effective Time, without the prior written consent of Prize, except as set forth on the Parent Disclosure Schedule: (a) None of the Parent Companies will (i) amend its certificate or articles of incorporation, bylaws or other organizational documents; (ii) split, combine or reclassify any of its outstanding capital stock; (iii) declare, set aside or pay any dividends or other distributions (whether payable in cash, property or securities) with respect to its capital stock; (iv) issue, sell or agree to issue or sell any securities or other equity interests, including its capital stock, any rights, options or warrants to acquire its capital stock, or securities convertible into or exchangeable or exercisable for its capital stock (other than shares of Parent Common Stock issued pursuant to the exercise of any Parent Warrant outstanding on the date of this Agreement); (v) purchase, cancel, retire, redeem or otherwise acquire any of its outstanding capital stock or other securities or other equity interests; (vi) merge or consolidate with, or transfer all or substantially all of its assets to, any other Person; (vii) liquidate, wind-up or dissolve (or suffer any liquidation or dissolution); or (viii) enter into any contract, agreement, commitment or arrangement with respect to any of the following foregoing. (b) None of the Parent Companies will (i) acquire any corporation, partnership or other business entity or any interest therein (other than interests in joint ventures, joint operation or ownership arrangements or tax partnerships acquired in the ordinary course of business) having an acquisition price in excess of $3,000,000; (ii) sell, lease or sublease, transfer or otherwise dispose of or mortgage, pledge or otherwise encumber any Oil and Gas Interests of Parent that were assigned a value in the Reserve Data Value in excess of $3,000,000, individually, or any other assets that have a value at the time of such sale, lease, sublease, transfer or disposition in excess of $3,000,000, individually (except that this clause shall not apply to the sale of Hydrocarbons in the ordinary course of business or to encumbrances under the Parent Bank Credit Agreement); (iii) farm-out any Oil and Gas Interest of Parent having a value in excess of $3,000,000 or interest therein; (iv) sell, transfer or otherwise dispose of or mortgage, pledge or otherwise encumber any securities of any other Person (including any capital stock or other securities or equity interest in any Parent Subsidiary); (v) make any material loans, advances or capital contributions to, or investments in, any Person (other than loans or advances in the ordinary course of business) in an aggregate amount in excess of $3,000,000; (vi) enter into any Parent Material Agreement or any other agreement not terminable by any of the Parent Companies upon notice of 30 days or less and without penalty or other obligation; or (vii) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing. (c) None of the Parent Companies will (i) permit its subsidiaries to be outstanding at any time under the Parent Bank Credit Agreement indebtedness for borrowed money in excess of $160,000,000; (ii) incur any indebtedness for borrowed money other than under trade credit vendor lines not exceeding $15,000,000 in the aggregate or under the Parent Bank Credit Agreement; (iii) incur any other obligation or liability (other than liabilities incurred in the ordinary course of business); (iv) assume, endorse (other than endorsements of negotiable instruments in the ordinary course of business), guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the liabilities or obligations of any other Person in an amount in excess of $500,000; or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing. (d) The Parent Companies will operate, maintain and otherwise deal with the Oil and Gas Interests of Parent in accordance with good and prudent oil and gas field practices and in accordance with all applicable oil and gas leases and other contracts and agreements and all applicable laws, rules and regulations. (e) None of the Parent Companies shall voluntarily resign, transfer or otherwise relinquish any right it has as of the date of this Agreement, as operator of any Oil and Gas Interest of Parent, except as required by law, regulation or contract, except to the extent such action would not be reasonably likely to have a Material Adverse Effect on Parent. (f) None of the Parent Companies will (i) enter into, or otherwise become liable or obligated under or pursuant to: (1) any employee benefit, pension or other plan (whether or not subject to ERISA), (2) any other stock option, stock purchase, incentive or deferred compensation plan or arrangement or other fringe benefit plan, or (3) any consulting, employment, severance, termination or similar agreement with any Person, or amend or extend any such plan, arrangement or agreement; (ii) except for payments made pursuant to the Prize Extraordinary Transaction Compensation Policy any Parent Employee Benefit Plan or any other plan, agreement or arrangement described in the Parent Disclosure Schedule, grant, or otherwise become liable for or obligated to pay, any severance or termination payment, bonus or increase in compensation or benefits (other than payments, bonuses or increases that are mandated by the terms of agreements existing as of the date hereof or that are paid in the ordinary course of business, consistent with past practices, and not individually or in the aggregate material in amount) to, or forgive any indebtedness of, any employee or consultant of any of the Parent Companies; or (iii) enter into any contract, agreement, commitment or arrangement to do any of the followingforegoing. (g) None of the Parent Companies will create, incur, assume or permit to exist any Lien on any of its assets, except for Permitted Encumbrances. (h) The Parent Companies will (i) keep and maintain accurate books, records and accounts; (ii) maintain in full force and effect the policies or binders of insurance described in Section 4.22; (iii) pay all Taxes, assessments and other governmental charges imposed upon any of their assets or with respect to their franchises, business, income or assets before any penalty or interest accrues thereon; (iv) pay all material claims (including claims for labor, services, materials and supplies) that have become due and payable and which by law have or may become a Lien upon any of their assets prior to the time when any penalty or fine shall be incurred with respect thereto or any such Lien shall be imposed thereon; and (v) comply in all material respects with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority, obtain or take all Governmental Actions necessary in the operation of their businesses, and comply with and enforce the provisions of all Parent Material Agreements, including paying when due all rentals, royalties, expenses and other liabilities relating to their businesses or assets; provided, however, Parent will not be in violation of this Section 5.1(h) if any of the Parent Companies incurs obligations for penalties and interest in connection with gross production tax reporting in the ordinary course of business; and provided further, that the Parent Companies may contest the imposition of any such Taxes, assessments and other governmental charges, any such claim, or the requirements of any applicable law, rule, regulation or order or any Parent Material Agreement if done so in good faith by appropriate proceedings and if adequate reserves are established in accordance with GAAP. (i) The Parent Companies will at all times preserve and keep in full force and effect their corporate existence and rights and franchises material to their performance under this Agreement, except where the failure to do so would not have a Material Adverse Effect on Parent. (j) None of the Parent Companies will: (ai) Declareengage in any practice, set aside, take any action or pay permit by inaction any dividends or make any other distributions (whether of the representations and warranties contained in cash, stock, equity securities or property) in respect Article 4 to Parent's capital stockbecome untrue, except where (i) an adjustment is made to the Exchange Ratio in accordance with as specifically permitted under other provisions of this Section 1.6(e) or (ii) the holders of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its subsidiaries in any amounts that would adversely affect Parent's financial condition or liquidity; (c) Effect any amendment to the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement5.1(j); (dii) Engage in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) approve or implement budgets for general and administrative expenses of the CodeParent Companies (including salary, whether bonuses, general operating and overhead expenses) or budgets for Capital Expenditures of the Parent Companies, or incur expenses or disburse funds for any of such purposes except pursuant to the budgets which have been approved by Prize or revisions to such budgets which are approved by Prize, such approval not otherwise permitted by the provisions of this Article IVto be unreasonably withheld (any budgets which have been or are approved as required herein are referred to as "Approved Budgets"); (eiii) Engage except to the extent already included in an Approved Budget, enter into any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire any business or any corporation, partnership, association agreements or other business organization arrangements with respect to, or division if such acquisition make any payments, incur any expenses or agreement would disburse any funds for (1) any Capital Project, the completion or full capitalization of which can reasonably be expected to require the inclusion Parent Companies to expend, in the S-4 aggregate, in excess of proforma financial information regarding such acquisition$5,000,000, or (2) any Capital Project for the exploration of Oil and Gas Interests with undeveloped reserves (including the acquisition of leasehold interests and seismic data, the drilling of wells and all related costs and expxxxxx) which can reasonably be expected to require the Parent Companies to expend, in the aggregate, in excess of $2,500,000; or (giv) Agree make any Capital Expenditure or general and administrative expense payment which exceeds by more than 20 percent the amount set forth in writing or otherwise to take any of the actions described appropriate line item for such expenditure in Section 4.1 (a) through (f) abovean Approved Budget.

Conduct of Business by Parent. During the period from the date of Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement and continuing Agreement, until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent shall not do any shall, and cause its subsidiaries to conduct their respective businesses in the ordinary course and consistent with past practices. Except as set forth in Section 5.4 of the following Parent Disclosure Schedule, as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to by the Company, in writing, after the date hereof Parent shall not, and shall not permit any of its subsidiaries to do any of the followingto: (aA) Declareamend or otherwise change its certificate of incorporation or by-laws, other than to increase the number of authorized shares of Parent Common Stock or Parent preferred stock, or to otherwise implement the terms and conditions of this Agreement, or as permitted by this Agreement; (B) issue, sell, pledge, dispose of, encumber or authorize the issuance, sale, pledge disposition, grant or encumbrance of (i) any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest thereof, other than (x) any issuance in connection with a Qualified Financing, (y) any issuance pursuant to any outstanding security or agreement of Parent, or (z) any issuance or sale pursuant to any plan for or agreement with any officer, director or employee of Parent; or (ii) any of its assets, tangible or intangible, except pursuant to contracts or agreements identified in Parent Disclosure Schedule; (C) declare, set aside, make or pay any dividends dividend or make any other distributions (whether distribution, payable in cash, stock, equity securities property or property) in otherwise, with respect to Parent's its capital stock, except where except, if at all, with respect to shares which may be issued in a Qualified Financing; (D) (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) reclassify, combine, split, or subdivide, directly or indirectly, any of its capital stock, or (ii) the holders of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock stock, except from any officer, director or employee upon termination of Parent such officer, director or its subsidiaries in any amounts that would adversely affect Parent's financial condition or liquidityemployee; (ci) Effect acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any amendment to the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement); (d) Engage interest in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IV; (e) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire any business or any corporation, partnership, association partnership or other business organization or division if such acquisition thereof or agreement would require the inclusion any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets of any other person, (ii) incur any indebtedness for borrowed money other than pursuant to agreements disclosed in the S-4 Parent Disclosure Schedule, or issue any debt securities other than pursuant to agreements disclosed in the Parent Disclosure Schedule or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of proforma financial information regarding any person, or make any loans or advances other than pursuant to licensing/development agreements entered into in the ordinary course of Parent's business, consistent with past practice, or (iii) enter into any new Parent Contract not otherwise permitted pursuant to this Agreement; (F) make any capital expenditure or enter into any contract or commitment therefore other than pursuant to licensing/development agreements disclosed in Section 4.6 of the Parent Disclosure Schedule; (G) amend, terminate or extend any Parent Contract; (H) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date when such acquisitionliability would have been paid in the ordinary course of business consistent with past practice; (I) take any action, or permit any event or condition to occur or exist, which would cause any representation or warranty of Parent to be untrue; or (gI) Agree agree, in writing or otherwise otherwise, to take or authorize any of the foregoing actions described or any action which would make any representation or warranty contained in Section 4.1 Article IV untrue or incorrect. Notwithstanding the foregoing, and anything to the contrary in this Agreement, the parties acknowledge and agree that Parent may negotiate, execute, deliver and perform agreements to establish customary benefit and compensation arrangements for its officers, directors and employees, appoint additional officers or directors and hire new employees and enter into customary agreements with them, enter in to customary arrangements to obtain insurance, enter into formal arrangements concerning its occupancy and use of its current headquarters space in New York, New York, amend, create and adopt such corporate governance policies, procedures, rules and regulations, as may be appropriate in connection with Parent's listing application or SOXA, take actions which are appropriate or necessary to enhance the corporate staffing and operations of Parent, and take actions which are appropriate or necessary to memorialize the registration rights of Parent's stockholders as heretofore disclosed to Company's management (aeach of the foregoing, a "Permitted Parent Action"), and no such Permitted Parent Action shall be deemed to breach any Parent representation, warranty, covenant or agreement in this Agreement, provided, that no such Permitted Parent Action shall have a material adverse effect on Parent and that Parent shall notify the Company of each such Permitted Parent Action. In appointing officers or directors between the date of this Agreement and the Closing Date pursuant to this paragraph, Parent shall only appoint, if any at all, (i) through independent directors, (fii) aboveother directors to replace existing directors, and (iii) one or more officers to replace functions currently performed by any officer or officers being replaced. In no event will any contract with any officer be in an amount which individually, or taken together with all other contracts with any such newly appointed officers, in the aggregate, is material to Parent.

Conduct of Business by Parent. During Except as set forth on Section 4.1(b) of the Parent Disclosure Letter, except as otherwise required, permitted or contemplated by this Agreement or except as consented to in writing by the Company, which consent shall not be unreasonably withheld or delayed, during the period from the date of this Agreement to the Effective Time, Parent shall, and continuing until shall cause the earlier Parent Subsidiaries to, carry on their respective businesses in the ordinary course. Without limiting the generality of the termination foregoing, except as set forth on Section 4.1(b) of the Parent Disclosure Letter, except as otherwise required, permitted or contemplated by this Agreement or except as consented to in writing by the Company, which consent shall not be unreasonably withheld or delayed, during the period from the date of this Agreement pursuant to its terms or the Effective Time, Parent shall not do any of the following and shall not permit its subsidiaries to do any of the followingParent Subsidiary to: (ai) Declare(A) other than (1) dividends and distributions by a direct or indirect wholly owned Parent Subsidiary to its parent and (2) regular quarterly cash dividends with respect to Parent Common Stock, which shall be $0.14 per share of Parent Common Stock, declare, set aside, aside or pay any dividends on, or make any other distributions (whether in cash, stock, equity securities or property) in respect of, any of its capital stock or (B) split, combine or reclassify any of its capital stock or (C) except pursuant to Parent's capital stock, except where (i) an adjustment is made agreements entered into with respect to the Exchange Ratio Parent Stock Plans that are in accordance with Section 1.6(e) or (ii) effect as of the holders close of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based business on the Exchange Ratiodate of this Agreement, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchasepurchase, redeem, redeem or otherwise acquire, directly or indirectly, acquire any shares of capital stock of Parent or its subsidiaries in any amounts that would adversely affect Parent's financial condition of the Parent Subsidiaries or liquidityany other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (cii) Effect issue or authorize the issuance of, deliver or sell any amendment shares of its capital stock (or any other securities in respect of, in lieu of, or in substitution for, shares of its capital stock), any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, other than the Company's Certificate issuance of Incorporation that would have an adverse shares of Parent Common Stock upon the exercise of the Parent Stock Options under the Parent Stock Plans or in connection with other awards or issuance of Parent Common Stock under the Parent Stock Plans, in any such case, outstanding as of the date of this Agreement (or granted hereafter as permitted under this Agreement) and in accordance with their terms as in effect on the rights date of holders this Agreement (or, in the case of Parent's Common Stock (including grants made subsequent to the Parent Common Stock to be issued pursuant to date of this Agreement, in accordance with their terms as in effect on the date of grant, which terms shall be consistent with past practice); (diii) Engage in amend its certificate of incorporation or by-laws (or other comparable organizational documents), other than amendments or changes to any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) such documents of the Code, whether or not otherwise permitted by Parent Subsidiaries in the provisions ordinary course of this Article IVbusiness; (eiv) Engage other than in the ordinary course of business, sell, lease, license, mortgage or otherwise encumber or subject to any action with the intent to directly Lien (other than Parent Permitted Liens) or indirectly adversely impact otherwise dispose of any of the transactions contemplated by this Agreementits material properties or material assets; (fv) Following change the filing accounting principles used by it unless required by GAAP (or, if applicable with respect to foreign subsidiaries, the relevant foreign generally accepted accounting principles); or any Governmental Entity; (vi) acquire by merging or consolidating with, by purchasing any substantial equity interest in or a substantial portion of the S-4assets of, acquire or agree to acquire by any other manner, any significant business or any corporation, partnership, association or other business organization or division if such acquisition thereof, or agreement would require the inclusion otherwise acquire any assets that are material, individually or in the S-4 aggregate, to Parent and the Parent Subsidiaries, taken as a whole, except for (A) the purchase of proforma financial information regarding such acquisitionassets from suppliers or vendors in the ordinary course of business, (B) items reflected in the capital plan of Parent previously provided to the Company or (C) acquisitions of businesses or assets not contemplated in clause (A) or (B) involving consideration up to an aggregate amount not to exceed $50,000,000; (vii) except in the ordinary course of business, make or rescind any material express or deemed election or settle or compromise any material claim or action relating to Taxes, or change any of its methods of accounting or of reporting income or deductions for Tax purposes in any material respect; (viii) satisfy any material claims or liabilities, other than in the ordinary course of business or in accordance with their terms; (ix) other than in the ordinary course of business, (A) terminate or adversely modify or amend any contract having a duration of more than one year and total payment obligations of Parent in excess of $25,000,000 (other than (1) contracts terminable within one year or (2) the renewal, on substantially similar terms, of any contract existing on the date of this Agreement), (B) waive, release, relinquish or assign any right or claim of material value to Parent, or (C) cancel or forgive any material indebtedness owed to Parent or any Parent Subsidiary; or (gx) Agree in writing authorize, commit or otherwise agree to take any of the actions described in Section 4.1 (a) through (f) aboveforegoing actions.

Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except as provided on Section 5.01(b) of the Parent Disclosure Letter and except as expressly contemplated by this Agreement or required by applicable Laws, Parent shall not do any of the following not, and shall not permit its subsidiaries to do any of its Subsidiaries to, without the following:Company’s prior written consent (in the case of clause (ii) and (solely with respect to the foregoing clause) (vii), such consent not to be unreasonably withheld, conditioned or delayed): (ai) Declare(A) declare, set aside, aside or pay any dividends on, or make any other distributions (whether in cash, stock, equity securities stock or property) in respect to Parent's of, any of its capital stock, except where other than dividends or distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent or (iB) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) split, combine or reclassify any of its capital stock; (ii) except for transactions among Parent and one or more of its Subsidiaries or among one or more of Parent’s Subsidiaries, and except in connection with any financing related to the Merger and the other transactions contemplated by this Agreement, issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units; provided, however, that Parent may (A) issue shares of Parent Common Stock (1) in respect of any current or future equity or equity based awards under the Parent Plans, (2) in order to finance, or as consideration in, acquisitions otherwise permitted by this Agreement, (3) in connection with financing or refinancing transactions related to, or reasonably advisable in connection with, this Agreement and the transactions contemplated hereby (including to fund fees and expenses) and (4) pursuant to outstanding convertible securities, including warrants, (B) grant equity and equity-based awards in the ordinary course of business or (C) pledge or otherwise encumber or subject to any Liens shares of capital stock of a Subsidiary of Parent in connection with financing or refinancing transactions in the ordinary course of business and permitted by this Agreement; (iii) amend the Parent Charter (other than the Parent Charter Amendment) or the Parent Bylaws or the comparable charter or organizational documents of any of its Subsidiaries (other than in connection with the Merger and the other transactions contemplated by this Agreement) if such amendment would be adverse to Parent or the Company, or holders of Company Common Stock will otherwise who receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on in the record date for such dividend or distributionMerger; (biv) Purchase, redeemdirectly or indirectly acquire (A) by merging or consolidating with, or otherwise acquireby purchasing all of or a substantial equity interest in, directly or indirectlyby any other manner, any shares division, business or equity interest of capital stock any person or (B) any assets forming part of such a division or business; except in each case, that would not, or would not reasonably be expected to, prevent or materially impair the ability of Parent or its subsidiaries in any amounts that would adversely affect Parent's financial condition or liquidityMerger Sub to consummate the Merger before the Termination Date; (cv) Effect any amendment to the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement); (d) Engage in take any action that could cause could, or fail to take any action, the failure of which could, reasonably be expected to prevent the Merger to fail to qualify from qualifying as a "reorganization" under reorganization within the meaning of Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IV; (evi) Engage in enter into any other transaction or take any other action with that would reasonably be expected to prevent or materially delay or impair Parent’s or Merger Sub’s ability to consummate the intent to directly or indirectly adversely impact any of Merger and the other transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire any business or any corporation, partnership, association or other business organization or division if such acquisition or agreement would require the inclusion in the S-4 of proforma financial information regarding such acquisition; or (gvii) Agree in writing authorize any of, or otherwise commit, propose or agree to take any of of, the actions described in Section 4.1 (a) through (f) aboveforegoing actions.

Conduct of Business by Parent. During Except for matters set forth in the period Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time Parent shall, and continuing until shall cause Sub to, conduct its business in the earlier usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the termination foregoing, except as contemplated by the Transaction Agreements, from the date of this Agreement pursuant to its terms or the Effective Time, Parent shall not, and shall not permit Sub to, do any of the following and shall not permit its subsidiaries to do any without the prior written consent of the followingCompany: (aA) Declaredeclare, set aside, aside or pay any dividends on, or make any other distributions (whether in cash, stock, equity securities or property) in respect to of, any of its capital stock (in the case of Parent's capital stock, except where (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) or membership interests (iiin the case of Sub), (B) split, combine or reclassify any of its capital stock (in the holders case of Company Common Stock will otherwise receive an equivalentParent) or membership interests (in the case of Sub) or issue or authorize the issuance of any other securities in respect of, proportional dividend in lieu of or distribution in substitution for shares of its capital stock (based on in the Exchange Ratiocase of Parent) or membership interests (in the case of Sub), as adjusted pursuant to Section 1.6(e)(C) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchasepurchase, redeem, redeem or otherwise acquire, directly or indirectly, acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or its subsidiaries Sub, or alter through merger, liquidation, reorganization or restructuring or in any amounts that would adversely affect Parent's financial condition other fashion the corporate structure or liquidityownership of Parent or Sub; (cii) Effect issue, deliver, sell or grant (A) any amendment to shares of its capital stock (in the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders case of Parent's Common Stock ) or any of its membership interests (including in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units; (iii) amend the Parent Common Stock to be issued pursuant to this Agreement)Charter, the Parent By-laws or the comparable organizational documents of Sub; (d) Engage in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IV; (e) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire any business or any corporation, partnership, association or other business organization or division if such acquisition or agreement would require the inclusion in the S-4 of proforma financial information regarding such acquisition; or (g) Agree in writing or otherwise to take any of the actions described in Section 4.1 (a) through (f) above.

Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent shall not do any and each of the following and shall not permit its subsidiaries shall, except to do any the extent that Company shall otherwise consent in writing, use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization and (ii) keep available the services of the following:its present officers and employees. (a) Declare, set aside, aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect to Parent's of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, except where (i) an adjustment is made other than dividends or distributions by any of Parent's subsidiaries to the Exchange Ratio in accordance with Section 1.6(e) Parent or (ii) the holders any of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distributionParent's subsidiaries; (b) Purchase, redeem, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its subsidiaries subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any amounts that would adversely affect Parent's financial condition employee pursuant to stock option or liquiditypurchase agreements in effect on the date hereof; (c) Effect Cause, permit or propose any amendment amendments to the Company's Certificate Parent Charter Documents (or similar governing instruments of Incorporation that would have an adverse effect on the rights any of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreementits subsidiaries); (d) Revalue any of its assets or, except as required by GAAP, make any change in accounting methods, principles or practices; (e) Engage in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IV; (ef) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire any business or any corporation, partnership, association or other business organization or division if such acquisition or agreement would require the inclusion in the S-4 of proforma financial information regarding such acquisition; or (g) Agree in writing or otherwise to take any of the actions described in Section 4.1 4.2 (a) through (f) above.

Conduct of Business by Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent shall, and shall not do any cause its subsidiaries to, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers and others having business dealings with them. Between the date of this Agreement and the Effective Time or until the earlier termination of this Agreement pursuant to its terms, except (1) as contemplated by this Agreement, (2) as set forth in Section 4.1(b) of the following Parent Disclosure Schedule, or (3) with the prior written consent of the Company, Parent shall not, and shall not permit any of its subsidiaries to do any of the followingto: (aA) Declaredeclare, set aside, aside or pay any dividends or make any other distributions (whether in cash, stock, equity securities property or propertyotherwise) any dividends on, or make any other distributions in respect to Parent's of, any of its capital stock, except where other than dividends and distributions by any direct or indirect wholly owned subsidiary of Parent to its parent, (iB) an adjustment is made to split, combine or reclassify any of its capital stock or issue or authorize the Exchange Ratio issuance of any other securities in accordance with Section 1.6(e) respect of, in lieu of or in substitution for shares of its capital stock or (iiC) the holders of Company Common Stock will otherwise receive an equivalentpurchase, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, redeem or otherwise acquire, directly or indirectly, acquire any shares of capital stock of Parent or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; provided, however, that with respect to clause (C) only, Parent may take such actions in an aggregate amount not to exceed $50 million in addition to any amounts that would adversely affect Parent's financial condition or liquiditysuch actions taken as required by the proviso in Section 4.1(b)(ii)(C) to offset issuances of capital stock in an acquisition permitted under Section 4.1(b)(iv); (cii) Effect (x) issue, deliver, sell, award, pledge, dispose of or otherwise encumber or authorize or propose the issuance, delivery, grant, sale, award, pledge or other encumbrance (including limitations in voting rights) or authorization of, any amendment shares of its capital stock, any voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, (y) amend or otherwise modify the Company's Certificate terms of Incorporation that would have an adverse effect any such rights, warrants or options (except as expressly contemplated by this Agreement) or (z) accelerate the vesting of any of the stock options in each case other than (A) the issuance of Parent Common Stock upon the exercise of stock options outstanding under the Parent Stock Incentive Plan on the rights date of holders this Agreement in accordance with their present terms or in accordance with the present terms of Parent's any employment agreements existing on the date of this Agreement, (B) the grant of stock options to employees and directors to purchase up to 1,000,000 shares of Parent Common Stock (including at an exercise price equal to the fair market value of the Parent Common Stock to be issued on the date of grant) pursuant to the Parent Stock Incentive Plan as in effect on the date of this AgreementAgreement (as the same may be amended to increase the number of shares of Parent Common Stock which may be the subject of awards thereunder), and the issuance of Parent Common Stock upon the exercise thereof, and (C) the issuance of Parent Common Stock in connection with a transaction not prohibited by Section 4.1(b)(iv); provided, however, that stock issuances in connection with a transaction permitted under Section 4.1(b)(iv) hereof may not exceed the number of shares of Parent Common Stock purchased by the Parent after the date hereof; (diii) Engage in any action that could cause the Merger to fail to qualify amend its Amended and Restated Articles of Association or Amended and Restated Memorandum of Association, other than as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted contemplated by the provisions of this Article IVDomestication; (eiv) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire (for cash or shares of stock or otherwise) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof; provided, however, that the Parent and its subsidiaries may enter into such transactions (in addition to those listed on Schedule 4.1(b)), other than with an affiliate, if the purchase price and required capital contributions therefore (whether consisting of cash or Parent Common Stock or a combination of both) do not exceed, in the aggregate, $200 million (the "Parent Acquisition Basket"), and if such transactions would not be reasonably likely to prevent or materially delay the consummation of the Merger; (v) mortgage or otherwise encumber or subject to any lien (a non- exclusive license shall not be considered a mortgage, encumbrance or lien), or sell, lease, exchange or otherwise dispose of any of, its properties or assets, except for sales of its properties or assets in the ordinary course of business consistent with past practice or other sales that, exclusive of the transactions listed on Schedule 4.1(b) of the Parent Disclosure Schedule, do not exceed, in the aggregate $50 million; (vi) dispose of, pledge or encumber any of Parent's or its subsidiaries' intellectual property, except through non-exclusive license agreements; (vii) change its fiscal year; (viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) indebtedness incurred to effect a transaction disclosed on Schedule 4.1(b) of the Parent Disclosure Schedule, (y) indebtedness incurred or assumed in connection with one or more acquisition transactions permitted under Section 4.1(b)(iv), provided that indebtedness assumed in connection with any such transaction (as opposed to indebtedness incurred to effect any such transaction which will be counted solely against the limitations of Section 4.1(b)(iv)) shall not exceed the amount that would otherwise be permitted to be incurred pursuant to clause (z) below plus any remaining balance in the Parent Acquisition Basket, and (z) indebtedness which when added to existing indebtedness of Parent and its subsidiaries (other than indebtedness incurred pursuant to clause (x) and indebtedness incurred or assumed pursuant to clause (y) to the extent that such indebtedness reduces the available amount in the Parent Acquisition Basket) does not exceed in the aggregate $50 million, or (B) other than in the ordinary course of business consistent with past practice and within the limits specified in Section 4.1(b)(iv), make any loans, advances or capital contributions to, or investments in, any other person, other than to Parent or any direct or indirect wholly owned subsidiary of Parent; (ix) purchase or acquire, or permit or cause any of its subsidiaries to purchase or acquire, beneficial or record ownership of any shares of Company Common Stock; (x) make or agree to make any new capital expenditures (exclusive of expenditures set forth on Schedule 4.1(b)) for tangible physical assets which in the aggregate exceed $50 million; (xi) except in the ordinary course of business consistent with past practice, modify, amend, renew, fail to renew or terminate any material contract or agreement would require to which the inclusion in the S-4 of proforma financial information regarding such acquisitionParent or any subsidiary is a party or waive, release or assign any material rights or claims; or (gxii) Agree in writing authorize any of, or otherwise commit or agree to take any of of, the actions described in Section 4.1 (a) through (f) aboveforegoing actions.

Conduct of Business by Parent. During Except as set forth in Section 4.01(b) of the Parent Disclosure Letter, except as otherwise contemplated by this Agreement or except as consented to in writing by the Company, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent shall not do any carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and as it is currently proposed to be conducted and in compliance in all material respects with all applicable Laws and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its material relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it. Without limiting the generality of the following and shall not permit its subsidiaries foregoing, during the period from the date of this Agreement to do any the Effective Time, except as contemplated by this Agreement or as set forth in Section 4.01(b) of the followingParent Disclosure Letter, or otherwise approved in writing by the Company, Parent shall not: (ai) Declare(A) adjust, set asidesplit, combine or reclassify the Parent Common Stock, (B) make, declare or pay any dividends or make any other distributions (whether in cash, stock, equity securities or property) in respect to Parent's capital stock, except where (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) or (ii) the holders of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratioon, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, or otherwise acquireor, directly or indirectly, redeem, purchase or otherwise acquire, any shares of Parent Common Stock or any securities or obligations convertible into or exchangeable for any shares of Parent Common Stock, (C) grant any person any right or option to acquire any shares of Parent Common Stock, (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of Parent Common Stock or any securities or obligations convertible into or exchangeable or exercisable for any shares of Parent Common Stock or such securities, or (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of Parent Common Stock; (ii) directly or indirectly, sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any of its property or assets; (iii) make or propose any changes in its Certificate of Incorporation or Bylaws; (iv) merge or consolidate with any other person; (v) acquire assets or capital stock of Parent or its subsidiaries in any amounts that would adversely affect Parent's financial condition or liquidityother person; (cvi) Effect incur, create, assume or otherwise become liable for any amendment to indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the Company's Certificate obligations of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement)any other person; (dvii) Engage create any subsidiaries; (viii) enter into, amend or modify any employment, severance, termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee, or pay any amounts not otherwise due to, any officer, director, consultant or employee, except as may be required by applicable Laws; (ix) enter into, adopt or amend any "employee benefit plan" as defined in Section 3(3) of ERISA; (x) take any action that could cause the Merger give rise to fail severance benefits payable to qualify any officer or director of Parent as a "reorganization" under Section 368(a) result of the Code, whether or not otherwise permitted by the provisions consummation of this Article IV; (e) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this AgreementAgreement (including in connection with any post-consummation termination of employment); (fxi) Following change any method or principle of Tax or financial accounting, except to the filing extent required by GAAP or applicable Law; (xii) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any Contract to which Parent is a party; (xiii) enter into, amend or terminate any confidentiality agreements, standstill agreements or similar arrangements or waive any provisions under any existing confidentiality agreement, standstill agreement or similar arrangements; (xiv) write up, write down or write off the book value of the S-4any assets, acquire except as required by GAAP consistently applied or agree as required by applicable Law; (xv) incur or commit to acquire any business capital expenditures; (xvi) take any action that would reasonably be likely to result in (A) any representation or warranty of Parent set forth in Article III becoming not true or not accurate in any corporation, partnership, association material respect or (B) any condition set forth in Article VI not being satisfied; (xvii) enter into or carry out any other business organization or division if such acquisition or agreement would require the inclusion transaction other than in the S-4 ordinary course of proforma financial information regarding such acquisitionbusiness; (xviii) make, revoke or amend any Tax election, settle or compromise any claim or assessment with respect to Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of any Taxes or amend any Tax Returns; or (gxix) Agree agree (whether or not in writing or otherwise writing) to take any of the actions described in Section 4.1 (a) through (f) aboveforegoing actions.

Conduct of Business by Parent. During the period Pending Closing. Parent covenants and agrees with GreenHunter that, from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, each of the Parent shall Companies will conduct its business only in the ordinary and usual course consistent with past practices. Notwithstanding the preceding sentence, Parent covenants and agrees with GreenHunter that, except as specifically contemplated in this Agreement, from the date of this Agreement until the Effective Time, without the prior written consent of GreenHunter, except as set forth on the Parent Disclosure Schedule: (a) None of the Parent Companies will (i) amend its certificate or articles of incorporation, bylaws or other organizational documents; (ii) split, combine or reclassify any of its outstanding capital stock; (iii) declare, set aside or pay any dividends or other distributions (whether payable in cash, property or securities) with respect to its capital stock; (iv) issue, sell or agree to issue or sell any securities or other equity interests, including its capital stock, any rights, options or warrants to acquire its capital stock, or securities convertible into or exchangeable or exercisable for its capital stock (other than shares of Parent Common Stock issued pursuant to the exercise of any Parent Warrant outstanding on the date of this Agreement), other than an equity financing of up to $7.5 million on terms that are approved by the Board of Directors of Parent and at a price per share that is not do less 70% of the average historic trading price of Parent Common Stock during the 45 day period prior to such financing; (v) purchase, cancel, retire, redeem or otherwise acquire any of its outstanding capital stock or other securities or other equity interests; (vi) merge or consolidate with, or transfer all or substantially all of its assets to, any other Person; (vii) liquidate, wind-up or dissolve (or suffer any liquidation or dissolution); or (viii) enter into any contract, agreement, commitment or arrangement with respect to any of the following foregoing. (b) None of the Parent Companies will (i) acquire any corporation, partnership or other business entity or any interest therein having an acquisition price in excess of $7.5 million, individually or in the aggregate; (ii) sell, lease or sublease, transfer or otherwise dispose of or mortgage, pledge or otherwise encumber any asset having a value in excess of $7.5 million, individually or in the aggregate; (iii) sell, transfer or otherwise dispose of or mortgage, pledge or otherwise encumber any securities of any other Person (including any capital stock or other securities or equity interest in any Parent Subsidiary); (iv) organize or form any subsidiary, or make any material loans, advances or capital contributions to, or investments in, any Person (other than loans or advances in the ordinary course of business) in an aggregate amount in excess of $500,000, individually or in the aggregate; (v) enter into any Parent Material Agreement or any other agreement not terminable by any of the Parent Companies upon notice of 30 days or less and shall without penalty or other obligation; or (vii) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing. (c) None of the Parent Companies will (i) incur any indebtedness for borrowed money other than under trade credit vendor lines not permit its subsidiaries exceeding $7.5 million individually or in the aggregate; (ii) incur any other obligation or liability (other than liabilities incurred in the ordinary course of business); (iii) assume, endorse (other than endorsements of negotiable instruments in the ordinary course of business), guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the liabilities or obligations of any other Person in an amount in excess of $500,000 individually or in the aggregate; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing. (d) None of the Parent Companies will (i) enter into, or otherwise become liable or obligated under or pursuant to: (1) any employee benefit, pension or other plan (whether or not subject to ERISA), (2) any other stock option, stock purchase, incentive or deferred compensation plan or arrangement or other fringe benefit plan, except pursuant to any Parent Employee Benefit Plan or any other plan, agreement or arrangement described in the Parent Disclosure Schedule, or (3) any consulting, employment, severance, termination or similar agreement with any Person, or amend or extend any such plan, arrangement or agreement; (ii) except for payments made pursuant to any Parent Employee Benefit Plan or any other plan, agreement or arrangement described in the Parent Disclosure Schedule, grant, or otherwise become liable for or obligated to pay, any severance or termination payment, bonus or increase in compensation or benefits (other than payments, bonuses or increases that are mandated by the terms of agreements existing as of the date hereof or that are paid in the ordinary course of business, consistent with past practices, and not individually or in the aggregate material in amount) to, or forgive any indebtedness of, any employee or consultant of any of the Parent Companies; or (iii) enter into any contract, agreement, commitment or arrangement to do any of the followingforegoing. (e) None of the Parent Companies will create, incur, assume or permit to exist any Lien on any of its assets, except for Permitted Encumbrances. (f) The Parent Companies will (i) keep and maintain accurate books, records and accounts; (ii) maintain in full force and effect the policies or binders of insurance described in Section 4.22; (iii) pay all Taxes, assessments and other governmental charges imposed upon any of their assets or with respect to their franchises, business, income or assets before any penalty or interest accrues thereon; (iv) pay all material claims (including claims for labor, services, materials and supplies) that have become due and payable and which by law have or may become a Lien upon any of their assets prior to the time when any penalty or fine shall be incurred with respect thereto or any such Lien shall be imposed thereon; and (v) comply in all material respects with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority, obtain or take all Governmental Actions necessary in the operation of their businesses, and comply with and enforce the provisions of all Parent Material Agreements, including paying when due all rentals, royalties, expenses and other liabilities relating to their businesses or assets; provided, however, that the Parent Companies may contest the imposition of any such Taxes, assessments and other governmental charges, any such claim, or the requirements of any applicable law, rule, regulation or order or any Parent Material Agreement if done so in good faith by appropriate proceedings and if adequate reserves are established in accordance with GAAP. (g) The Parent Companies will at all times preserve and keep in full force and effect their corporate existence and rights and franchises material to their performance under this Agreement, except where the failure to do so would not have a Material Adverse Effect on Parent. (h) None of the Parent Companies will: (ai) Declareengage in any practice, set aside, take any action or pay permit by inaction any dividends or make any other distributions (whether of the representations and warranties contained in cash, stock, equity securities or property) in respect Article 4 to Parent's capital stockbecome untrue, except where (i) an adjustment is made to the Exchange Ratio in accordance with as specifically permitted under other provisions of this Section 1.6(e) or (ii) the holders of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its subsidiaries in any amounts that would adversely affect Parent's financial condition or liquidity; (c) Effect any amendment to the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement5.1(h); (dii) Engage approve or implement budgets for general and administrative expenses of the Parent Companies (including salary, bonuses, general operating and overhead expenses) or budgets for Capital Expenditures of the Parent Companies, or incur expenses or disburse funds for any of such purposes except pursuant to the budgets which have been disclosed to GreenHunter or revisions to such budgets which are approved by GreenHunter, such approval not to be unreasonably withheld (any budgets which have been disclosed to GreenHunter or modifications thereto which are approved as required herein are referred to as “Approved Parent Budgets”); (iii) except to the extent already included in an Approved Parent Budget, enter into any agreements or other arrangements with respect to, or make any payments, incur any expenses or disburse any funds for any Capital Project, the completion or full capitalization of which can reasonably be expected to require the Parent Companies to expend, in the aggregate, in excess of $2.5 million; (iv) make any Capital Expenditure or general and administrative expense payment which exceeds by more than 20 percent the amount set forth in the appropriate line item for such expenditure in an Approved Parent Budget. (i) None of Parent or any of its Affiliates will take, cause or permit to be taken any action that could cause reasonably be expected to pose a material risk to the status of the Merger to fail to qualify as a "reorganization" under Section within the meaning of Code section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IV; (e) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire any business or any corporation, partnership, association or other business organization or division if such acquisition or agreement would require the inclusion in the S-4 of proforma financial information regarding such acquisition; or (g) Agree in writing or otherwise to take any of the actions described in Section 4.1 (a) through (f) above).

Conduct of Business by Parent. During Except for matters set forth in the period Parent Disclosure Letter or otherwise expressly contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time Parent shall, and continuing until shall cause each Parent Subsidiary to, conduct its business in the earlier ordinary course in substantially the same manner as previously conducted and use all reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and keep its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. In addition, and without limiting the generality of the termination foregoing, except for matters set forth in the Parent Disclosure Letter or otherwise expressly contemplated by the Transaction Agreements, from the date of this Agreement pursuant to its terms or the Effective Time, Parent shall not, and shall not permit any Parent Subsidiary to, do any of the following and shall not permit its subsidiaries to do any without the prior written consent of the followingCompany: (ai) Declare(A) declare, set aside, aside or pay any dividends on, or make any other distributions (in respect of, any of its capital stock, whether in cash, stock, equity securities stock or property, other than (1) dividends and distributions by a direct or indirect wholly owned subsidiary of Parent to its parent and (2) regular quarterly cash dividends with respect to the Parent Common Stock, not in excess of $0.04 per share, with usual declaration, record and payment dates and in accordance with Parent's past dividend policy, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect to Parent's of, in lieu of or in substitution for shares of its capital stock, except where (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) or (iiC) the holders of Company Common Stock will otherwise receive an equivalentpurchase, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, redeem or otherwise acquire, directly or indirectly, acquire any shares of capital stock of Parent or its subsidiaries in any amounts that would adversely affect Parent's financial condition Parent Subsidiary or liquidityany other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (cii) Effect issue, deliver, sell or grant (A) any amendment shares of its capital stock, (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, voting securities or convertible or exchangeable securities or (D) other than in the Company's Certificate ordinary course of Incorporation that would have an adverse effect on business consistent with past practice, any stock options, performance shares, incentive shares, restricted stock, "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units, other than (1) the rights issuance of holders of Parent's Parent Common Stock (including and associated Parent Rights) upon the exercise of Parent Employee Stock Options outstanding on the date of this Agreement and in accordance with their present terms, (2) the issuance of Parent Preferred Stock upon the exercise of Parent Rights, (3) the issuance of Parent Common Stock to be issued (and associated Parent Rights) pursuant to this Agreement)the Parent Stock Option Agreement and (4) the sale or purchase of Parent Common Stock (or its equivalent) under Parent Pension Plans; (diii) Engage amend its certificate of incorporation, by-laws or other comparable charter or organizational documents in any action that could cause a manner adverse to the Merger to fail to qualify as a "reorganization" under Section 368(a) holders of the Code, whether or not otherwise permitted by the provisions of this Article IVCompany Common Stock; (eiv) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division if such acquisition thereof or agreement would require the inclusion (B) any assets that are material, individually or in the S-4 aggregate, to Parent and the Parent Subsidiaries, taken as a whole; (v) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of proforma operations of Parent, except insofar as may have been required by a change in GAAP; (vi) sell, lease, license or otherwise dispose of or subject to any Lien any properties or assets that are material, individually or in the aggregate, to Parent and the Parent Subsidiaries, taken as a whole, except sales of obsolete assets in the ordinary course of business consistent with past practice; (vii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent or any Parent Subsidiary, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial information regarding such acquisitionstatement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to or in Parent or any direct or indirect wholly owned subsidiary of Parent; (viii) make or agree to make any new capital expenditure or expenditures that, individually, is in excess of $5,000,000 or, in the aggregate, are in excess of $35,000,000; (A) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of Parent included in the Filed Parent SEC Documents or in the Parent Disclosure Letter or incurred in the ordinary course of business consistent with past practice, (B) cancel any material indebtedness (individually or in the aggregate), waive any claims or rights of substantial value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent or any Parent Subsidiary is a party; (x) take any action that (without giving effect to any action taken or agreed to be taken by the Company or any of its affiliates) would prevent Parent from accounting for the business combination to be effected by the Merger as a pooling of interests; (xi) take any action that (without giving effect to any action taken or agreed to be taken by the Company or any of its affiliates) would render the provisions of Sections 132-134 of the BCL applicable to this Agreement or the Merger; or (gxii) Agree in writing authorize any of, or otherwise commit or agree to take any of of, the actions described in Section 4.1 (a) through (f) aboveforegoing actions.

Conduct of Business by Parent. During the period from the date of Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement and continuing Agreement, until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent shall, and cause its subsidiaries to conduct their respective businesses in the ordinary course and consistent with past practices. Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously consented to by the Company, in writing, after the date hereof Parent shall not do any of the following not, and shall not permit any of its subsidiaries to do any of the followingto: (a) Declareamend or otherwise change its articles of incorporation or by-laws, other than to increase the number of authorized shares of Parent Common Stock or Parent Preferred Stock, or to otherwise implement the terms and conditions of this Agreement, or as permitted by this Agreement; (b) issue, sell, pledge, dispose of, encumber or authorize the issuance, sale, pledge disposition, grant or encumbrance of any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest thereof; (c) declare, set aside, make or pay any dividends dividend or make any other distributions (whether distribution, payable in cash, stock, equity securities property or property) in otherwise, with respect to Parent's its capital stock; (d) (i) reclassify, combine, split, or subdivide, directly or indirectly, any of its capital stock, except where (i) an adjustment is made to the Exchange Ratio in accordance with Section 1.6(e) or (ii) the holders of Company Common Stock will otherwise receive an equivalent, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock stock, except from any officer, director or employee upon termination of Parent such officer, director or its subsidiaries in any amounts that would adversely affect Parent's financial condition or liquidity; (c) Effect any amendment to the Company's Certificate of Incorporation that would have an adverse effect on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this Agreement); (d) Engage in any action that could cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IVemployee; (e) Engage (i) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets) any interest in any action corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets of any other person, (ii) incur any indebtedness for borrowed money other than pursuant to agreements disclosed in the Parent Disclosure Schedule, or issue any debt securities other than pursuant to agreements disclosed in the Parent Disclosure Schedule or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances other than pursuant to licensing/development agreements entered into in the ordinary course of Parent’s business, consistent with past practice, or (iii) enter into any new contract or agreement which would require on the intent Parent Disclosure Schedule pursuant to directly or indirectly adversely impact any of the transactions contemplated by Section 4.7 and not otherwise permitted pursuant to this Agreement; (f) Following make any capital expenditure or enter into any contract or commitment therefore; (g) amend, terminate or extend any contract or agreement listed on the filing Parent Disclosure Schedule pursuant to Section 4.7; (h) delay or accelerate payment of any account payable or other liability of the S-4, acquire Company beyond or agree to acquire any business in advance of its due date or any corporation, partnership, association or other business organization or division if the date when such acquisition or agreement liability would require the inclusion have been paid in the S-4 ordinary course of proforma financial information regarding such acquisitionbusiness consistent with past practice; (i) take any action, or permit any event or condition to occur or exist, which would cause any representation or warranty of Parent to be untrue; or (gj) Agree agree, in writing or otherwise otherwise, to take or authorize any of the foregoing actions described or any action which would make any representation or warranty contained in Section 4.1 (a) through (f) aboveArticle IV untrue or incorrect.

Conduct of Business by Parent. During the period from the date of this Agreement Date and continuing until the earlier of (i) the termination of this Agreement pursuant to its terms or Agreement, (ii) the Effective TimeTime and (iii) with respect to clause (c) below, the applicable Restriction Date (as defined in Schedule 6.23(c)) Parent shall not, and it shall cause each of its Subsidiaries not to, do any of the following and (except to the extent expressly provided otherwise herein or as consented to in advance in writing by the Company, which consent shall not permit its subsidiaries to do any of the following:be unreasonably withheld, conditioned or delayed): (a) Declareamend the Parent Organizational Documents; (b) declare, set aside, aside or pay any dividends on, or make any other distributions (whether in cash, stock, equity securities or property) in respect to Parent's of, any of its capital stock, except where (i) an adjustment is made other equity interests or voting securities, other than dividends and distributions by a direct or indirect wholly-owned subsidiary of Parent to the Exchange Ratio in accordance with Parent and stock dividend subject to Section 1.6(e) 2.10, or (ii) the holders of Company Common Stock will otherwise receive an equivalentrepurchase, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, redeem or otherwise acquire, directly or indirectlyoffer to repurchase, redeem or otherwise acquire, any shares of capital stock or voting securities of, or Equity Interests in, Parent or any of its Subsidiaries or any securities of Parent or any of its subsidiaries in Subsidiaries convertible into or exchangeable for capital stock or voting securities of, or Equity Interest in, Parent or any amounts that would adversely affect Parent's financial condition of its Subsidiaries, or liquidityany warrants, calls, options or other rights to acquire any such capital stock, voting securities or Equity Interests; (c) Effect take any amendment to the Company's Certificate of Incorporation that would have an adverse effect action set forth on the rights of holders of Parent's Common Stock (including the Parent Common Stock to be issued pursuant to this AgreementSchedule 6.23(c); (d) Engage in take any action that could cause reasonably be expected to prevent the Merger to fail to qualify from qualifying as a "“reorganization" ” under Section 368(a) of the Code; provided, whether however, that neither Parent nor either of the Merger Sub shall be deemed to have breached this covenant as a result of a decline in the value of Parent Class A Common Stock prior to the Closing (for any reason or not otherwise permitted by for no reason) that results in any failure of the provisions Merger, taken together, to qualify as a “reorganization” within the meaning of this Article IV;Section 368(a) of the Code; or (e) Engage in any action with the intent agree, resolve or commit to directly or indirectly adversely impact do any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire any business or any corporation, partnership, association or other business organization or division if such acquisition or agreement would require the inclusion in the S-4 of proforma financial information regarding such acquisition; or (g) Agree in writing or otherwise to take any of the actions described in Section 4.1 (a) through (f) aboveforegoing.

Conduct of Business by Parent. During the period from From the date of this Agreement and continuing until to the earlier of the termination of this Agreement pursuant to its terms or the Effective TimeClosing Date, Parent shall not do any of the following and shall not permit its subsidiaries to do any without the prior written consent of the followingShareholder and the Company: (ai) Declare(A) declare, set aside, aside or pay any dividends on, or make any other distributions (whether in cash, stock, equity securities or property) in respect to Parent's of, any of its capital stock, except where (iB) an adjustment is made to split, combine or reclassify any of its capital stock or issue or authorize the Exchange Ratio issuance of any other securities in accordance with Section 1.6(erespect of, in lieu of or in substitution for shares of its capital stock, (C) or (ii) the holders of Company Common Stock will otherwise receive an equivalentpurchase, proportional dividend or distribution (based on the Exchange Ratio, as adjusted pursuant to Section 1.6(e)) in connection with the Merger as if they had been holders of Parent Common Stock on the record date for such dividend or distribution; (b) Purchase, redeem, redeem or otherwise acquire, directly or indirectly, acquire any shares of capital stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of Parent complete or its subsidiaries partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of, or alter through merger, liquidation, reorganization or restructuring or in any amounts that would adversely affect Parent's financial condition or liquidityother fashion its corporate structure; (cii) Effect issue, deliver, sell or grant (A) any amendment shares of its capital stock, (B) any securities convertible into or exchangeable for, or any options, warrants or rights to the Company's Certificate acquire, any such shares of Incorporation that would have an adverse effect on the rights its capital stock (other than vesting of holders of Parent's Common Stock (including the Parent Common Stock to be issued currently outstanding options and warrants pursuant to this Agreementtheir terms), or (C) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units; (diii) Engage in any action that could cause amend the Merger to fail to qualify Parent Charter or the Parent Bylaws other than as a "reorganization" under Section 368(a) of the Code, whether or not otherwise permitted by the provisions of this Article IVcontemplated herein; (eiv) Engage in any action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; (f) Following the filing of the S-4, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any equity interest in or business or of any corporation, partnership, joint venture, association or other business organization or division if thereof; (v) sell, transfer, deliver, lease, license, sublicense, mortgage, pledge, encumber or otherwise dispose of (in whole or in part), or create, incur, assume or allow any Lien, other than Parent Permitted Liens; (vi) (A) enter into or amend any material Parent Contract; or (B) modify, amend, transfer, terminate or waive any rights under any material Parent Contract; (vii) enter into or amend any material Parent Contract, transaction, indebtedness or other arrangement in which any of Parent’s officers, directors, shareholders or other affiliates, or any of their respective affiliates or family members have a direct or indirect financial interest; (A) except with respect to continued advances pursuant to the terms of the Wachovia Obligations, incur any indebtedness for borrowed money or guarantee any such acquisition indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities, guarantee any debt securities of another Person, enter into any “keep well” or other agreement would require to maintain any financial statement condition of another Person or enter into any arrangement having the inclusion economic effect of any of the foregoing, (B) make any loans, advances or capital contributions to, or investments in, any other Person or (iii) create, incur, assume or guarantee any material capitalized lease obligations; (ix) establish, adopt, enter into or amend, modify or terminate any Parent Benefit Plans, including any bonus, profit sharing, compensation, stock option, warrant, pension, retirement, deferred compensation, employment, severance, termination, change in control, indemnification, retention bonus or other employee benefit plan, agreement, trust fund or arrangement for the benefit or welfare of any officer, director, shareholder, employee, consultant or other individual performing services for Parent, (ii) agree to any increase in the S-4 compensation or benefits, including cash, equity, and other forms of proforma financial information regarding such acquisitioncompensation payable or to become payable to, or any increase in the contractual term of employment of, any officer, director, shareholder or consultant or salaried employee (iii) pay any benefit not required by any Parent Benefit Plan or other plan or agreement, (iv) establish, adopt, enter into or amend in any respect any collective bargaining agreement, or any other agreement or commitment to or relating to any labor union, or (v) make any determination under any collective bargaining agreement, or any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan; (x) do or omit to take any action, or permit any omission to act, that would cause a breach or default under, or the termination, modification or amendment of, any material Parent Contract, or any government license, material Permit or other material authorization; (xi) amend, modify, extend, renew or terminate any lease, or enter into any new lease, sublease, license or other agreement for the use or occupancy of any real property; (xii) make or omit to take any action which would be reasonably anticipated to have a Parent Material Adverse Effect; (xiii) form, establish or acquire any Subsidiary; or (gxiv) Agree in writing take, authorize, commit or otherwise agree to take any of the actions described in Section 4.1 (a) through (f) aboveforegoing actions.