Common use of Conduct of Business by the Company Pending the Closing Clause in Contracts

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date: (a) the Company shall conduct its business and operations only in the usual and ordinary course of business; (b) Except as contemplated by this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to that, between the Closing Date: (a) date of this Agreement and the Effective Time, except as set forth in Section 6.1 of the Company shall conduct its business and operations only in the usual and ordinary course Disclosure Schedule or as permitted by any other provision of business; (b) Except as contemplated by this Agreement, and as necessary to effect the proposals contained unless Parent will otherwise agree in the Company Proxy Statement to writing (which agreement will not be filed (the “Company Proxy Statement”unreasonably withheld, delayed or conditioned), the Company shall will, and will cause each Company Subsidiary to, conduct its operations in the ordinary course of business and use commercially reasonable efforts to preserve substantially intact its business organization and maintain existing relations and goodwill with customers, suppliers and employees in the ordinary course of business consistent with past practice. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 6.1 of the Company Disclosure Schedule or as permitted by any other provision of this Agreement, the Company will not (unless required by applicable Law), and will not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Parent (which consent will not be unreasonably withheld, delayed or conditioned): (a) amend or otherwise change its certificate of incorporation or bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of, or other Equity Interests in, the Company or any Company Subsidiary of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by Contract right), of the Company or any Company Subsidiary, other than the issuance of Shares (i) upon the vesting of Company RSUs or Company Restricted Shares, (ii) the exercise of Company Options outstanding as of the date hereof in accordance with their terms or (iii) in connection with the Top-Up Option; (c) sell, pledge, dispose of of, let lapse, abandon, assign, transfer, lease, license, guarantee or encumber any material property or assets of its assets; the Company or any Company Subsidiary (including any Registered Intellectual Property and unregistered Owned Intellectual Property), except (i) to the extent required pursuant to Contracts in effect prior to the date hereof, (ii) amend pursuant to the sale, purchase or propose to amend its Certificate licensing of Incorporation inventory, raw materials, equipment, goods, or Bylaws; other supplies in the ordinary course of business consistent with past practice or (iii) split, combine or reclassify any outstanding shares for non-exclusive licenses in the ordinary course of its capital stock, or business consistent with past practice with a fair market value not in excess of $2,500,000 in the aggregate; (d) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the Company or another wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting or registration of its capital stock; ; (ive) reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any of its capital stock, other Equity Interests or any other securities, or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or other securities, in each case other than in connection with the Top-Up Option; (f) merge or consolidate the Company or any Company Subsidiary with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary, or otherwise enter into any agreements imposing material restrictions on the assets, operations or businesses of the Company or any Company Subsidiary; (g) enter into a new line of business (other than currently-projected extensions of existing product lines); (h) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any Person or any division thereof or any assets, other than acquisitions of assets (including, without limitation, the purchase of inventory, raw materials, equipment, goods, or other supplies) in the ordinary course of business consistent with past practice and any other acquisitions for consideration that is individually not in excess of $2,500,000, or in the aggregate not in excess of $5,000,000; (i) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than a wholly-owned Company Subsidiary) for borrowed money; (j) make any loans, advances, guarantees or capital contributions to, or investments in, any other Person (other than any wholly-owned Company Subsidiary) in excess of $2,500,000 in the aggregate; (k) terminate, cancel or amend any Company Material Contract, or cancel, modify or waive any rights thereunder, or enter into or amend any Contract that, if existing on the date hereof, would be a Company Material Contract; (l) make or authorize any capital expenditure in excess of the Company’s capital expenditure budget as disclosed to Parent prior to the date hereof, other than capital expenditures that are not, in the aggregate, in excess of $2,500,000; (m) except to the extent required by (i) applicable Law, (ii) the existing terms of any Company Benefit Plan, (iii) contractual commitments or corporate policies with respect to severance or termination pay as in existence on the date hereof and listed on Section 6.1(m) of the Company Disclosure Schedule or (iv) as otherwise provided on Section 6.1(m) of the Company Disclosure Schedule: (A) increase in any manner the compensation, bonus or benefits payable or to become payable to its Service Providers (except for increases in the ordinary course of business consistent with past practice in base salaries or base wages of employees of the Company or any Company Subsidiary); (B) grant any additional rights to severance or termination pay to, or enter into any severance agreement with, any Service Provider, or establish, adopt, enter into or amend any Company Benefit Plan; (C) grant any new awards under any Company Benefit Plan, (D) amend or modify any outstanding award under any Company Benefit Plan, (E) take any action to amend, waive or accelerate the vesting criteria or vesting requirements of payment of any compensation or benefit under any Company Benefit Plan or remove any existing restrictions in any Company Benefit Plans or awards made thereunder, (F) take any action to accelerate the payment, or to fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan or (G) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or applicable laws; (n) forgive any loans to Service Providers or any of their respective affiliates; (o) make any material change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (p) encourage customers to make payments earlier than would otherwise reasonably be expected (based on past practice) to be made to the Company or the Company Subsidiaries, or agree to payment terms or conditions with suppliers that are not consistent in all material respects with past practice; (q) compromise, settle or agree to settle any Proceeding (including any Proceeding relating to this Agreement or the transactions contemplated hereby) other than compromises, settlements or agreements in the ordinary course of business that involve only the payment of monetary damages not in excess of $2,500,000 individually or $5,000,000 in the aggregate, in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any Company Subsidiary; (r) (i) make, change, or rescind any material Tax election, (ii) file any material amended Tax Return of the Company or any of the Company Subsidiaries, (iii) or adopt or change any material method or period of Tax accounting, (iv) settle or compromise any material claim relating to Taxes; (v) create surrender any subsidiariesmaterial claim for a refund of Taxes; (vi) enter into or modify any contract, “closing agreement, commitment or arrangement ” as described in Section 7121 of the Code with respect to material Taxes; or (vii) consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business); (s) write up, write down or write off the book value of any assets, except for depreciation and amortization and normal valuation adjustments to accounts receivable and inventory in accordance with GAAP consistently applied; (t) pre-pay any long-term debt; or (u) authorize or enter into any Contract or otherwise make any commitment, in each case to do any of the foregoing; foregoing in clauses (ca) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not through (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commencedt); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to that, between the Closing Date: (a) date of this Agreement and the Effective Time, except as set forth in Section 5.1 of the Company shall conduct its business and operations only Disclosure Schedule, as expressly permitted by any other provision of this Agreement or as required by applicable Law, unless Parent will otherwise agree in the usual and ordinary course of business; writing (b) Except as contemplated by this Agreementwhich agreement will not be unreasonably withheld, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”delayed or conditioned), the Company shall will (a) conduct its operations in the ordinary course of business consistent with past practice and (b) use commercially reasonable efforts to (i) preserve substantially intact its business organization, (ii) keep available the services of the current executive officers and key employees of the Company, (iii) maintain in effect all of the Company Permits, and (iv) maintain and preserve, in all material respects, its material business relationships with licensors, suppliers, joint venture partners, strategic alliance partners and others having significant business relationships with the Company. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly permitted by any other provision of this Agreement or as required by applicable Law, the Company will not (unless required by applicable Law), between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Parent (which consent will not be unreasonably withheld, delayed or conditioned): (a) amend the Company Charter or Company Bylaws; (b) issue, deliver, sell, pledge, dispose of, grant, transfer or otherwise encumber or subject to any Lien, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of, or other Equity Interests in, the Company of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by Contract right), of the Company, other than (i) the issuance of Shares upon the vesting of Company RSUs or the exercise of Company Options outstanding as of the date hereof in accordance with their terms, (ii) distributions of Shares under the Company ESPP as provided in Section 2.4(f) or (iii) the issuance of shares of Voting Common Stock upon the conversion of shares of Non-Voting Common Stock in accordance with the Company Charter and Company Bylaws; (c) sell, pledge, dispose of of, transfer, lease, license or sublicense, swap or encumber any material property or assets (including any airport gate) of its assets; the Company (other than (i) non-exclusive grants of licenses in Intellectual Property Rights and (ii) amend transfers, leases, licenses or propose sublicenses or swaps with respect to amend its Certificate Company Slots for a duration of Incorporation approximately six months or Bylaws; less, in each case, in the ordinary course of business consistent with past practice), except pursuant to Contracts in effect as of the date of this Agreement; (iiid) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares any of its capital stock or other Equity Interest or enter into any agreement with respect to the voting or registration of its capital stock; ; (ive) reclassify, combine, split, subdivide or otherwise amend the terms of, or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any of its capital stock, other Equity Interests or any other securities, or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or other securities; ; (vf) create any subsidiaries; (vi) enter into merge or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose ofconsolidate, or agree to issuemerger or consolidate, sellthe Company with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, pledge dissolution, consolidation, restructuring, recapitalization or dispose of, other reorganization of the Company or file a petition in bankruptcy under any additional shares of, provisions of applicable Law on behalf of the Company or any options, warrants, conversion privileges or rights consent to the filing of any kind bankruptcy petition against the Company under any similar applicable Law; (g) directly or indirectly, acquire or agree to acquire any shares of(including, its capital stock; (ii) acquire (without limitation, by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any corporationinterest in any Person or any division thereof or any assets, partnership other than (i) the planned purchase of aircraft and associated equipment pursuant to the terms and provisions of Company Material Contracts as in effect on the date hereof, (ii) acquisitions of assets (including, without limitation, the purchase of inventory, raw materials, equipment, goods, or other supplies) in the ordinary course of business organization or division or the material assets thereof; and (iii) incur any indebtedness other acquisitions for borrowed money, issue any debt securities consideration that is individually not in excess of $2,000,000 or guarantee any indebtedness to others; or in the aggregate not in excess of $7,500,000; (ivh) enter into any new line of business; (i) incur or create any Indebtedness, cancel any Indebtedness owed to the Company, or waive, release, grant or transfer any right of material value, in each case other than for the financing of aircraft pursuant to the Company Aircraft Finance Contracts; (j) make any loans, guarantees or capital contributions to, or investments in, any other Person in excess of $1,000,000 in the aggregate; (k) terminate, cancel, or amend any Company Material Contract, or cancel, modify or waive any contractmaterial rights thereunder, or enter into or amend any Contract that, if existing on the date hereof, would be a Company Material Contract, in each case, other than in the ordinary course of business consistent with past practice; (l) make or authorize any capital expenditure in excess of the Company’s capital expenditure budget as set forth in Section 5.1(l) of the Company Disclosure Schedule, other than capital expenditures that are not, in the aggregate, in excess of $5,000,000 and excluding any expenditures (i) in connection with the planned purchase or delivery or aircraft and associated equipment pursuant to Contracts in force on the date hereof or (ii) required for compliance with FAA regulations applicable to the Company, including airworthiness directives; (m) except to the extent required by (i) applicable Law or (ii) the existing terms of any Company Benefit Plan: (A) increase the compensation or benefits payable or to become payable to any Service Provider (except for increases to any non-executive employee in the ordinary course of business consistent with past practice that are not material in the aggregate), (B) grant any additional rights to severance or termination pay to, or enter into any severance agreement with, any Service Provider, or establish, adopt, enter into or amend any bonus, profit sharing, thrift, pension, retirement, deferred compensation, termination or severance plan, agreement, commitment trust, fund, policy or other benefit arrangement as to any Service Provider, (C) hire any new Service Provider other than non-executive employees in the ordinary course of business and on terms consistent with respect similarly situated Service Providers, or (D) make any material change to the terms and conditions of employment applicable to any group of employees, as reflected in work rules, employee handbooks, policies and procedures, or otherwise, except for the entry or amendment of any CBA; (n) forgive any loans to Service Providers or any of their respective affiliates; (o) make any material change in tax or financial accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (p) commence, compromise, settle or agree to settle any Proceeding (including any Proceeding relating to this Agreement or the transactions contemplated hereby) other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of monetary damages (net of any payments or proceeds received through insurance) not in excess of $1,000,000 individually or $5,000,000 in the aggregate, in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company; (q) make or change any material Tax election, settle or compromise any material claim or assessment for Taxes, file a material amendment of any Tax Return, or waive or extend any statute of limitations pertaining to material Taxes; (r) change the fiscal year of the Company; (s) write up, write down or write off the book value of any tangible assets, in the aggregate, in excess of $7,500,000, except for depreciation, amortization or impairment in accordance with GAAP consistently applied; (t) create any Subsidiary of the Company; (u) fail to maintain, or allow to lapse, or abandon any Material Domain Name; (v) take any action, or fail to take any action, which action or failure could result in the loss of any (i) Company Slots (excluding temporary returns to the FAA), (ii) airport gates that are leased, subleased, licensed or sublicensed, swapped or otherwise occupied (or for which the Company has the right to occupy) by the Company or (iii) other airport facilities; (w) enter into any transaction with any stockholder, director, officer or employee of the Company that would require disclosure by the Company under Item 404 of Regulation S-K; or (x) authorize or enter into any Contract or otherwise make any commitment, in each case to do any of the foregoing; foregoing in clauses (da) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS through (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commencedw); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to the Closing Date: Section 8.1, except (a) as set forth in Section 5.1 of the Company Disclosure Letter, (b) as specifically required by this Agreement (including the Restructuring Transactions), (c) as required by Law or (d) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company (i) shall and shall cause each Company Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice and use reasonable best efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers and other Persons with whom it and they have material business relations; provided, however, that no action that is specifically permitted by any of clauses (a) through (p) of Section 5.1(ii) shall be deemed a breach of this clause (i), and (ii) the Company shall conduct not, and shall not permit any Company Subsidiary to: (a) authorize or pay any dividends on or make any distribution with respect to its business outstanding shares of capital stock (whether in cash, assets, shares or other securities of the Company or any Company Subsidiary), except (i) that the Company may continue the declaration and operations only payment of regular quarterly cash dividends on the Company Shares, not to exceed $0.15 per share for each quarterly dividend, (ii) for dividends and distributions paid or made on a pro rata basis by a Company Subsidiary in the usual and ordinary course of business; business consistent with past practice or by a wholly-owned Company Subsidiary to the Company or another wholly-owned Company Subsidiary, and (iii) the declaration and payment of the Pre-Merger Special Dividend in respect of each share of Company Common Stock; (b) Except split, combine, reduce or reclassify any of its capital stock, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock, except for any such transaction by a wholly-owned Company Subsidiary which remains a wholly-owned Company Subsidiary after consummation of such transaction; (c) except as contemplated required by applicable Law or any Company Benefit Plan, (i) increase the compensation or benefits payable or to be provided to any of its directors, officers, employees or consultants (other than increases in annual base salaries and incentive compensation opportunities at times and in amounts in the ordinary course of business consistent with past practice), (ii) grant or increase to any of its directors, officers, employees or consultants any severance, termination, change in control or retention pay, (iii) pay or award, or commit to pay or award, any cash bonuses or cash incentive compensation (other than the payment of accrued and unpaid cash bonuses or other cash incentive compensation), (iv) enter into any employment, severance, retention or change in control agreement with any of its directors, officers, employees or consultants (other than offer letters that do not otherwise provide for severance, retention or change in control payments or benefits), (v) establish, adopt, enter into, amend or terminate any collective bargaining agreement or Company Benefit Plan (or a plan or arrangement that would be a Company Benefit Plan if in existence as of the date hereof), or (vi) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to be provided to any of its directors, officers, employees or consultants; (d) make any material change in financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, applicable Law or SEC policy; (e) authorize or announce an intention to authorize, or enter into agreements providing for, any acquisitions of an equity interest in any Person or any business or division of any Person (including by means of an asset purchase), or any mergers, consolidations or business combinations, except for (i) such transactions that collectively do not have purchase prices that exceed $25 million in the aggregate (provided that any such transactions, individually or in the aggregate, would not reasonably be expected to prevent or materially delay or impede the consummation of the Transactions), (ii) capital expenditures otherwise permitted by Section 5.1(ii)(n), (iii) transactions between the Company and a wholly-owned Company Subsidiary or between wholly-owned Company Subsidiaries or (iv) the creation of new wholly-owned Subsidiaries organized to conduct or continue activities otherwise permitted by this Agreement; (f) amend the Company Governing Documents, and as necessary to effect the proposals contained in shall not permit any Significant Subsidiary of the Company Proxy Statement to be filed adopt any amendments to its governing documents; (the “Company Proxy Statement”)g) issue, the Company shall not directly or indirectly do any of the following: (i) deliver, grant, sell, pledge, dispose of or encumber encumber, or authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any of shares in its assets; capital stock (ii) amend including restricted stock), voting securities or propose other equity interest in the Company or any Company Subsidiary or any securities convertible into or exchangeable for any such shares, voting securities or equity interest, or any rights, warrants or options to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify acquire any outstanding such shares of in its capital stock, voting securities or declare, set aside equity interest or pay any dividend or other distribution payable in cash, “phantom” stock, property “phantom” stock rights, stock appreciation rights or stock based performance units or take any action to cause to be exercisable any otherwise unexercisable Company Equity Award under any existing Company Equity Plan (except as otherwise provided by the express terms of any Company Equity Award outstanding on the date hereof), other than issuances of Company Shares (i) in respect of any exercise of Company Stock Options or the vesting, lapse of restrictions with respect to or settlement of Company Equity Awards, outstanding as of the date hereof or issued in accordance with this Agreement, in each case, accordance with their respective terms, (ii) pursuant to the terms of the Company ESPP, subject to Section 2.3(d) or (iii) transactions between the Company and a wholly-owned Company Subsidiary or between wholly-owned Company Subsidiaries; (h) directly or indirectly, purchase, redeem or otherwise acquire any shares of in its capital stock; or any rights, warrants or options to acquire any such shares in its capital, except for (i) redemptions or acquisitions of Company Shares tendered by holders of Company Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (ii) the redemption or acquisition by the Company of Company Equity Awards in connection with the forfeiture of such awards and (iii) transactions between the Company and a wholly-owned Company Subsidiary or between wholly-owned Company Subsidiaries; (i) redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (i) any Indebtedness for borrowed money among the Company and its wholly-owned Company Subsidiaries or among wholly-owned Company Subsidiaries, (ii) Indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any existing Indebtedness for borrowed money of the Company or any of the Company Subsidiaries maturing on or prior to the six (6) month anniversary of the date of such refinancing, (iii) guarantees by the Company of Indebtedness for borrowed money of Company Subsidiaries or guarantees by Company Subsidiaries of Indebtedness for borrowed money of the Company or any Company Subsidiary, which Indebtedness is incurred in compliance with this clause (i), (iv) redeemIndebtedness for borrowed money incurred pursuant to (A) agreements entered into by the Company or any Company Subsidiary in effect prior to the execution of this Agreement and set forth in Section 5.1(ii)(i)(A) of the Company Disclosure Letter and (B) other agreements that may be entered into following the date hereof and set forth in Section 5.1(ii)(i)(B) of the Company Disclosure Letter, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; transactions at the stated maturity of such Indebtedness and required amortization or mandatory prepayments and (vi) Indebtedness for borrowed money not to exceed $100 million in aggregate principal amount outstanding at any time incurred by the Company or any of the Company Subsidiaries other than in accordance with clauses (i) through (v); provided that nothing contained herein shall prohibit the Company and the Company Subsidiaries from making guarantees or obtaining letters of credit or surety bonds for the benefit of commercial counterparties in the ordinary course of business consistent with past practice; (j) make any loans to any other Person, except for loans among the Company and its wholly-owned Company Subsidiaries or among the Company’s wholly-owned Company Subsidiaries; (k) sell, lease, license, transfer, exchange, swap or otherwise dispose of, or subject to any Lien (other than Company Permitted Liens), any of its properties or assets (including shares in the capital of the Company Subsidiaries), except (i) pursuant to an existing agreement in effect prior to the execution of this Agreement that is listed on Section 5.1(ii)(k) of the Company Disclosure Letter, (ii) in the case of Liens, as required in connection with any Indebtedness permitted to be incurred pursuant to Section 5.1(ii)(i), (iii) such transactions with neither a fair market value of the assets or properties nor an aggregate purchase price that exceeds $25 million in the aggregate for all such transactions and (iv) for transactions among the Company and its wholly-owned Company Subsidiaries or among wholly-owned Company Subsidiaries; (l) compromise or settle any claim, litigation, investigation or proceeding, in each case made or pending by or against the Company or any of the Company Subsidiaries (for the avoidance of doubt, including any compromise or settlement with respect to matters in which any of them is a plaintiff), or any of their officers and directors in their capacities as such, other than the compromise or settlement of claims, litigation, investigations or proceedings that: (i) is for an amount (in excess of insurance proceeds) not to exceed, for any such compromise or settlement individually or in the aggregate, $50 million, (ii) does not impose any injunctive relief on the Company and the Company Subsidiaries and (iii) does not provide for the license, covenant not to assert, or otherwise granting of any rights, of or under any Intellectual Property; (m) make or change any material Tax election, change any Tax accounting period for purposes of a material Tax or material method of Tax accounting, file any material amended Tax Return, settle or compromise any audit or proceeding relating to a material amount of Taxes, agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes, enter into any “closing agreement” within the meaning of Section 7121 of the Code (or modify any contractsimilar provision of state, agreementlocal, commitment or arrangement non-U.S. Law) with respect to any material Tax, surrender any right to claim a material Tax refund, or take any action which would cause the Company or any Company Subsidiary to be treated as an “expatriated entity” within the meaning of Section 7874(a)(2) of the foregoing; Code as a result of the Transactions; (cn) Except as contemplated by this Agreement, and those items contained except in the Company Proxy Statement to be filedordinary course of business consistent with past practice, or in accordance with the Company’s anticipated capital expenditures for its 2016 fiscal year described on Section 5.1(ii)(n) of the Company shall not Disclosure Letter, make any new capital expenditure or expenditures, or commit to do so; (o) except in the ordinary course of business consistent with past practice or in connection with any transaction to the extent specifically permitted by any other subclause of this Section 5.1(ii) and excluding any Material Contract of the type described in Section 3.20(a)(ii)(B) (but subject to the other restrictions set forth in this Section 5.1(ii)), (i) issueenter into any Contract that would, sellif entered into prior to the date hereof, pledge or dispose ofbe a Company Material Contract, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire materially modify, materially amend or terminate any Company Material Contract or waive, release or assign any material rights or claims thereunder; or (by mergerp) agree, consolidation, acquisition of stock or assets in writing or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to take any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andforegoing actions.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: Effective Time, except as set forth in Section 6.01 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless Parent shall otherwise agree in writing, (ax) the respective businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business consistent with past practice and (y) the Company shall conduct use all reasonable efforts to keep available the services of such of the current officers, significant employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with such of the corporate partners, customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations in order to preserve substantially intact its business organization. By way of amplification and operations only not limitation, except as set forth in Section 6.01 of the usual Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, neither the Company nor any Company Subsidiary shall, between the date of this Agreement and ordinary course the Effective Time, directly or indirectly, do, or agree to do, any of business; the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) amend or otherwise change its articles of incorporation or bylaws or equivalent organizational documents; (b) Except as contemplated by this Agreementissue, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of, grant, transfer, lease, license, guarantee or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license or encumbrance of, (i) any shares of capital stock of the Company or encumber any Company Subsidiary of its 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 any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Company Subsidiary except for (A) issues of Company Common Stock pursuant to options, warrants and convertible Company Capital Stock outstanding on the date hereof and disclosed as such pursuant to Section 4.03 and (B) employee stock option grants to non-officers and directors of the Company; PROVIDED, HOWEVER, that (x) such grants are at fair market value and at a level consistent with past practice, (y) Parent has received notice of the Company's intention to grant such options and has consented thereto in writing (which consent shall not be unreasonably withheld) and (z) the aggregate amount of such granted options does not exceed 25,000 shares of Company Common Stock, or (ii) any property or assets of the Company or any Company Subsidiary; (c) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or person or any division thereof; (ii) amend incur any indebtedness for borrowed money or propose to amend its Certificate issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of Incorporation any person for borrowed money or Bylawsmake any loans or advances; (iii) splitterminate, combine cancel or reclassify request any outstanding shares of its capital stockmaterial change in, or agree to any material change in, any Company Material Contract or enter into any contract or agreement material to the business, results of operations or financial condition of the Company and the Company Subsidiaries taken as a whole; (iv) enter into any contract or agreement relating to the provision or receipt of pharmacy products or services, therapy or supplies that is not cancelable without penalty upon not more than 60 days' notice; (v) make or authorize any capital expenditure, other than capital expenditures in the ordinary course of business consistent with past practice that have been budgeted for calendar year 1997 and disclosed to Parent and that are not, in the aggregate, in excess of $5,000,000 for the Company and the Company Subsidiaries taken as a whole; or (vi) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 6.01(c); (d) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock; , except that any Company Subsidiary may pay dividends or make other distributions to the Company or any other Company Subsidiary; (ive) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock stock; (f) amend or change the period (or permit any acceleration, amendment or change) of exercisability of options granted under the Company Stock Plans or authorize cash payments in exchange for any Company Stock Options granted under any of such plans; (g) amend the terms of, repurchase, redeem or otherwise acquire, or permit any Company Subsidiary to repurchase, redeem or otherwise acquire, any of its securities or any securities of any Company Subsidiary, or propose to do any of the foregoing; (h) increase the compensation payable or to become payable to, or pay or enter into any agreement or understanding to pay any bonus to, its directors, officers, consultants or employees (other than increases in compensation for non-officer employees that are in the ordinary course of business consistent with past practice and the payment of bonuses to non- officer employees that are in the ordinary course of business consistent with past practice and pursuant to objective written criteria established by the board of directors of the Company PROVIDED that Parent has received notice of the Company's intention to implement such increase and has consented thereto in writing (which consent shall not be unreasonably withheld)), or grant any rights to severance or termination pay to, or enter into any employment or severance agreement which provides benefits upon a change in control of the Company that would be triggered by the Merger with, any director, officer, consultant or other securities; (v) create employee of the Company or any subsidiaries; (vi) Company Subsidiary who is not currently entitled to such benefits from the Merger, establish, adopt, enter into or modify amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, consultant or employee of the Company or any Company Subsidiary, except to the extent required by applicable Law or the terms of a collective bargaining agreement, or enter into or amend any contract, agreement, commitment or arrangement between the Company or any Company Subsidiary and any of the Company's directors, officers, consultants or employees; (i) pay, discharge, settle 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 and consistent with past practice of liabilities reflected or reserved against on the consolidated balance sheet of the Company and the consolidated the Company Subsidiaries dated as of June 30, 1996 included in the Company 1996 10-K and only to the extent of such reserves; (j) take any action with respect to accounting policies or procedures, other than actions in the ordinary course of business consistent with past practice or as required by U.S. GAAP; (k) make any tax election or settle or compromise any material Federal, state or local United States income tax liability, or any income tax liability of any other jurisdiction, other than those made in the ordinary course of business consistent with past practice and those for which specific reserves have been recorded on the consolidated balance sheet of the foregoing; (c) Except Company and the consolidated the Company Subsidiaries dated as contemplated by this Agreementof June 30, and those items contained 1996 included in the Company Proxy Statement 1996 10-K and only to be filed, the Company shall not extent of such reserves; (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (ivl) enter into or modify amend any contract, agreement, commitment or arrangement with respect with, or enter into any transaction with, or make any payment to or on account or behalf of, other than any such transactions or payments pursuant to the agreements set forth on Section 6.01(m) of the Company Disclosure Schedule, any affiliate of the Company or of any Principal Stockholder, including any of the foregoingfollowing entities: Xxxxxx Xxxxxx Health Care Association, Inc., National Assistance Bureau, Inc., Winter Haven Homes, Inc., Chamber Health Care Society, Inc., Southeastern Cottages, Inc., Senior Care, Inc., The Atrium Nursing Home, Inc., The Atrium of Jacksonville, Ltd. and Warner Xxxxxxx X.X.; or (dm) authorize or enter into any formal or informal agreement or otherwise make any commitment to do any of the foregoing or to take any action which would make any of the representations or warranties of the Company shall notify ADS promptly of any material adverse event contained in this Agreement untrue or circumstance affecting ADS (including the filing of any material litigation against incorrect or prevent the Company from performing or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) cause the Company shall comply not to perform its covenants hereunder or result in all material respects with all legal requirements and contractual obligations applicable any of the conditions to its operations and business and pay all applicable taxes; andthe Merger set forth herein not being satisfied.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Effective Time, except as set forth in Section 5.1 of the Company shall Disclosure Schedule, as expressly required by applicable Law or as contemplated by this Agreement or otherwise with the prior written consent of Parent, the Company will, and will cause each Company Subsidiary to, (i) conduct its business and operations only in the ordinary and usual and ordinary course of business; business and consistent with past practice, (bii) Except use its commercially reasonable efforts to keep available, in all material respects, the services of the current officers, employees and consultants of the Company and each Company Subsidiary and preserve, in all material respects, the goodwill and current relationships of the Company and each Company Subsidiary with significant customers, suppliers and other Persons with which the Company or any Company Subsidiary has significant business relationships and (iii) use its commercially reasonable efforts to preserve intact its business organization. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly required by applicable Law or contemplated by this Agreement, and as necessary to effect or otherwise with the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)prior written consent of Parent, the Company shall not, and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly indirectly, do any of the following: : (a) amend or otherwise change its certificate of incorporation or bylaws or equivalent organizational documents; (b) issue, deliver, sell, transfer, pledge, dispose of, xxxxx x Xxxx or permit a Lien to exist on, or authorize, propose or agree to the issuance, delivery, sale, transfer, pledge or disposition of or granting or placing a Lien on, any shares of any class of capital stock of, or other Equity Interests in, the Company or any Company Subsidiary, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class of capital stock or other Equity Interests of the Company or any Company Subsidiary (including, for the avoidance of doubt, through the adoption of any stockholder rights plan or “poison pill” agreement), other than (i) pursuant to the requirements of Contracts of the Company or any Company Subsidiary as in existence on the date of this Agreement and which are set forth on Section 5.1(b)(i) of the Company Disclosure Schedule or (ii) pursuant to the vesting and/or exercise of Company Options, Restricted Shares and Company Warrants and other contractual rights that are in existence on the date hereof and in accordance with their current terms; (c) sell, pledge, dispose of, transfer, lease, license, guarantee, encumber, abandon or permit to lapse any material property or assets (including Intellectual Property Rights) of the Company or encumber any Company Subsidiary, except to grant nonexclusive licenses to customers for use of its assets; Company’s products and services in the ordinary course of business consistent with past practice; (iid) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares any of its capital stock or enter into any Contract with respect to the voting or registration of its capital stock; ; (ive) adjust, reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock or other securities; Equity Interests; (vf) create merge or consolidate the Company or any subsidiaries; (vi) enter into Company Subsidiary with any Person or modify any contractadopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, agreementdissolution, commitment restructuring, recapitalization or arrangement with respect to any other reorganization of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; Company Subsidiary; (iig) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any corporationinterest or make any investment in any Person, partnership or other than acquisitions of goods and services in the ordinary course of business organization or division or the material assets thereof; consistent with past practice; (iiih) incur any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), the obligations of any indebtedness Person for borrowed money; (i) make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Company Subsidiary) other than in the ordinary course of business consistent with past practice in excess of $50,000 in the aggregate; (j) terminate, cancel, renew, or request or agree to others; any material change in or waiver under, any Company Material Contract, enter into any Contract that, if existing on the date hereof, would be a Company Material Contract, or amend any Contract in existence on the date hereof that, after giving effect to such amendment, would be a Company Material Contract; (ivk) make or authorize any capital expenditure in excess of $10,000 individually or $500,000 in the aggregate; (l) hire or terminate any officer or employee (except with respect to non-executive employees with aggregate annual compensation below $150,000); (m) take any action which would reasonably be expected to cause, or fail to take any reasonable action to prevent, any change in employee relations which has or is reasonably likely to have a material adverse effect on the productivity, the financial condition, results of operations of the Company or the relationships between the employees of the Company and the management of the Company; (i) except as required to comply with any Law or any Benefit Plan or Benefit Agreement as in effect on the date of this Agreement, (A) pay, announce, promise or grant, whether orally or in writing, increase or establish (each, as applicable) any wages, base pay, fees, salaries, bonuses, incentives, deferred compensation, pensions, severance or termination payments, change of control or retention payments, retirement, profit-sharing, fringe benefits, equity or equity-linked awards, employee benefit plans, or any other form of compensation or benefits payable by the Company to any Participant, including without limitation, any increase or change pursuant to any Benefit Plan or Benefit Agreement, (B) adopt, establish, enter into, amend, modify or terminate any Benefit Plan, Benefit Agreement or collective bargaining, employee association, works council or similar Contract, (C) enter into any trust, annuity or modify insurance agreement or similar Contract or take any contractother action to fund or otherwise secure the payment of any compensation or benefit or (D) take any action to accelerate the time of vesting or payment of any compensation or benefit or (ii) take any action, agreementdirectly or indirectly, commitment that accelerates the vesting or arrangement accelerates the lapse of forfeiture or other restrictions on equity securities of the Company; (o) forgive any loans to directors, officers, employees or any of their respective affiliates; (p) pre-pay any long-term debt; or waive, release, pay, discharge or satisfy any liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms; (q) make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (r) commence, compromise, settle or agree to settle any Action (including any Action relating to this Agreement or the transactions contemplated hereby) other than those made in the ordinary course of business consistent with past practice and which involve only the payment of monetary damages not in excess of $100,000 individually or $200,000 in the aggregate, in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any Company Subsidiary; (s) make or change any material election with respect to Taxes; adopt or change any material accounting method with respect to Taxes; amend any United States federal or material other Tax Return; enter into any private letter ruling, closing agreement or similar ruling or Contract with the IRS or any other Tax authority; enter into any Tax allocation agreement, Tax indemnity agreement, Tax sharing agreement or similar Contract with respect to Taxes; consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment; settle any Action with respect to a material amount of Taxes or forego any material Tax refund; (t) write up, write down or write off the book value of any assets, in the aggregate, in excess of $10,000 individually or $500,000 in the aggregate, except for depreciation and amortization in accordance with GAAP consistently applied; (u) take any action that is intended or would reasonably be expected to result in any of the conditions and requirements of the Offer set forth in Annex I or the conditions to the Merger set forth in Article 6 not being satisfied; (v) convene any regular or special meeting (or any adjournment thereof) of the stockholders of the Company other than the Special Meeting (if such a meeting is required by applicable Law); (w) fail to keep in force Insurance Policies or replacement or revised provisions providing insurance coverage with respect to the assets, operations and activities of the Company and the Company Subsidiaries as are currently in effect; (x) make any change in its investment policies with respect to cash or marketable securities; (y) grant to any Third Party any assignment, license, covenant not to xxx, release, immunity or other right with respect to the Company Intellectual Property (other than nondisclosure agreements, end user license agreements, and terms of use entered into in the ordinary course of business on Company’s applicable standard form agreement without material changes ) or acquire from a Third Party a grant of any assignment, license, covenant not to xxx, release, immunity or other right with respect to Intellectual Property or Intellectual Property Rights, other than employment agreements between Company and its employees and non-exclusive, proprietary (i.e., non-Open Source), inbound Software licenses generally commercially available on commercially reasonable terms with annual license fees under $10,000 in the aggregate that do not relate to Intellectual Property or Intellectual Property Rights incorporated into any Company Offering; or (z) authorize or enter into any Contract or otherwise make any commitment to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Effective Time, except as set forth on Section 5.1 of the Company Disclosure Schedule or as permitted or required by any other provision of this Agreement, unless Parent shall otherwise agree in writing (which agreement shall not be unreasonably withheld, delayed or conditioned), the Company will, and will cause each Company Subsidiary to, conduct its business and operations only in the ordinary and usual and ordinary course of business; (b) Except as contemplated by this Agreementbusiness and comply in all material respects with all applicable Laws. In addition to the foregoing, and as necessary to effect the proposals contained in an extension thereof, except as set forth on Section 5.1 of the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule or as required by any other provision of this Agreement, the Company shall not (unless required by applicable Law), and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Parent (iwhich consent shall not be unreasonably withheld, delayed or conditioned): (a) amend or otherwise change its articles of incorporation or bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of, or other Equity Interests in, the Company or any Company Subsidiary of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by Contract right), of the Company or any Company Subsidiary, other than the issuance of Common Shares upon the exercise of Company Options or Company Warrants outstanding as of the date hereof in accordance with their terms; (c) sell, pledge, dispose of of, transfer, lease, license, guarantee or encumber any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockencumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property Rights) of the Company or any Company Subsidiary, except pursuant to existing contracts or commitments or the sale or purchase of goods or services in the ordinary course of business consistent with past practice, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Company Subsidiary and the Company or another wholly-owned Company Subsidiary; (d) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iva combination thereof) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; its capital stock (c) Except as contemplated other than dividends paid by this Agreement, and those items contained in a wholly-owned Company Subsidiary to the Company Proxy Statement or another wholly-owned Company Subsidiary) or enter into any agreement with respect to be filedthe voting or registration of its capital stock; (e) reclassify, combine, split, subdivide or amend the Company shall not (i) issue, sell, pledge or dispose terms of, or agree to issueredeem, sellpurchase or otherwise acquire, pledge directly or dispose ofindirectly, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; , other Equity Interests or any other securities; (iif) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any corporationinterest in any Person or any division thereof or any assets, partnership other than acquisitions of inventory or other business organization or division or assets in the material assets thereof; ordinary course of business; (iiig) incur any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), the obligations of any Person (other than a wholly-owned Company Subsidiary) for borrowed money, except (i) in connection with refinancings of existing indebtedness at the maturity thereof, or (ii) for borrowings under the Company’s existing credit facilities for working capital and general corporate purposes not prohibited by this Agreement; (h) (A) increase the compensation or benefits payable to othersits directors, officers or employees or grant or pay any bonuses to any such Persons, except for bonuses that are accrued as of December 31, 2011 or for increases in salaries or wages in the ordinary course of business; (B) grant any rights to receive material severance or termination pay (other than rights in existence on December 31, 2011 pursuant to a Company Benefit Plan) which will become due and payable on or after the Effective Time, except as otherwise required by Law or in the ordinary course of business; (C) adopt, enter into or amend any material Company Benefit Plan, except to reflect changes in Law and plan administration or in the ordinary course of business; or (ivD) hire any employee whose total annual cash compensation will exceed $100,000; (i) enter into any new real property leases; (j) make any material modifications, upgrades or modify changes to any contractsoftware, agreementcomputer system or other technology that is material to the operation of the Company’s or the Company Subsidiaries’ businesses; (k) make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (l) make or change any Tax election or settle or compromise any liability for Taxes other than as set forth on Section 5.1(l) of the Company Disclosure Schedule; or (m) authorize or enter into any Contract that would be a Material Contract or otherwise make any commitment or arrangement with respect to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date: Except (a) the Company shall conduct its business and operations only in the usual and ordinary course of business; (b) Except as expressly contemplated by this Agreement, (b) as required by applicable Law (including for this purpose any COVID-19 Measures), or (c) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the earlier of (i) the Effective Time and as necessary (ii) the termination of this Agreement pursuant to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)Section 9.01, the Company (x) shall, and shall cause its Subsidiaries to, conduct its business in the ordinary course of business and use commercially reasonable efforts to preserve its business organization intact, and maintain its existing relations and goodwill with customers, suppliers and creditors, (y) shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to keep available the services of their current officers and key employees, and (z) shall not, and shall cause its Subsidiaries not directly to: (i) amend its memorandum and articles of association or indirectly do equivalent organizational documents, except in the case of any of the following: Company’s Subsidiaries only, for any such amendment which is not material to the business of the Company and its Subsidiaries, taken as a whole; (iii) sell(A) split, pledgecombine, dispose subdivide or reclassify any shares of capital stock or encumber any other equity securities or ownership interests of the Company or any of its assetsSubsidiaries; (iiB) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend on or make any other distribution payable distributions (whether in cash, stock, property or otherwise otherwise) with respect to shares of capital stock of the Company or any of its capital stockSubsidiaries or other equity securities or ownership interests in the Company or any of its Subsidiaries, except for the declaration and payment of dividends or other distributions (x) pursuant to the previously announced dividend policy or dividend declared prior to the date hereof or (y) by the Company’s wholly-owned Subsidiaries to the Company or to another wholly-owned Subsidiary of the Company; and (ivC) except as required by the Company Equity Plans and in accordance with their respective terms as in effect on the date hereof, redeem, purchase or acquire otherwise acquire, or offer to acquire redeem, purchase or otherwise acquire, any shares Company Equity Interests, except from holders of its capital stock Company Options in full or partial payment of any purchase price and any applicable Taxes payable by such holder upon the lapse of restrictions on, or exercise, settlement or vesting of the Company Options; (iii) except for (A) issuances by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary thereof, (B) the transfer or other securities; disposition of securities solely between or among the Company and its wholly-owned Subsidiaries or (vC) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any issuances as a result of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in exercise of the Company Proxy Statement to be filedOptions in each case in accordance with their respective terms as in effect on the date hereof, the Company shall not (i) issue, sell, pledge pledge, dispose, encumber or dispose of, grant any Shares or agree to issue, sell, pledge or dispose of, any additional shares ofof the Company’s Subsidiaries’ capital stock, or any options, warrants, conversion privileges convertible securities or other rights of any kind to acquire any shares of, its Shares or any of the Company’s Subsidiaries’ capital stock; stock or other equity interests; (iiiv) acquire or agree to acquire (including by merger, consolidation, consolidation or acquisition of stock or assets assets, or otherwise), directly or indirectly, any assets, property, securities, interests or businesses at a total consideration in excess of US$150,000 in the aggregate, in each case other than pursuant to existing Contracts or in the ordinary course of business; (v) any corporationsell, partnership pledge, lease, assign, license or other business organization otherwise transfer, dispose of or division encumber or the material assets thereof; (iii) create or incur any indebtedness Lien (other than a Permitted Lien) on any property or assets of the Company or any of its Subsidiaries, except (A) increased obligations under existing Liens resulting from Indebtedness incurred in accordance with Section 6.01(vi), (B) with respect to property or assets with a value of less than US$150,000 in the aggregate, or (C) in the ordinary course of business. (vi) incur, create, assume, refinance or replace any Indebtedness for borrowed money, money or issue or amend or modify the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any indebtedness to others; other Person (other than a wholly-owned Subsidiary of the Company), in each case not in the ordinary course of business, except (A) Indebtedness incurred under the Company’s or its Subsidiaries’ existing credit facilities as in effect on the date hereof, or (ivB) the refinancing of any existing Indebtedness of the Company or any of its Subsidiaries to the extent that (x) the material terms and conditions of any newly incurred Indebtedness are reasonable market terms, and (y) the aggregate principal amount of such Indebtedness is not increased as a result of such refinancing; (vii) make any material loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, Affiliates, agents or consultants) or enter into any “keep well” or similar agreement to maintain the financial condition of another entity, in each case, other than in the ordinary course of business or by the Company or a wholly-owned Subsidiary thereof to the Company or a wholly-owned Subsidiary thereof; (viii) enter into, renew, materially modify or amend, terminate, or waive, release, compromise or assign any rights or claims under, any Material Contract (or any Contract that, if existing as of the date of this Agreement, would be a Material Contract), other than (A) in the ordinary course of business, (B) any termination or renewal in accordance with the terms of any existing Material Contract that occur automatically without any action by the Company or any of its Subsidiaries, or (C) as may be reasonably necessary to comply with the terms of this Agreement; provided, however, that to the extent that another sub-section of this Section 6.01 would permit the entry into of a Material Contract in a higher dollar threshold than in the definition of “Material Contract”, then this Section 6.01 shall not prevent the entry into of such Material Contract in such higher dollar threshold; (ix) without prejudice to Section 6.01(xiii) below, settle or compromise any legal action, suit or arbitration proceeding, in each case made or pending against the Company or any of its Subsidiaries, other than settlements (A) requiring the Company or its Subsidiaries to pay monetary damages not exceeding US$100,000 for any single action, suit or arbitration proceeding or series of related actions, suits or arbitration proceedings, (B) covered by existing insurance, and (C) not involving the admission of any wrongdoing by the Company or any of its Subsidiaries; (x) (A) establish, adopt, enter into, materially amend or terminate any Benefit Plan or collective bargaining agreement, or any plan, program, policy, or arrangement that would be a Benefit Plan if in effect on the date of this Agreement, (B) materially increase the compensation, severance, perquisites or fringe benefits payable or to become payable to any current or former director, officer or employee of the Company or any of its Subsidiaries, other than such increases which are in the ordinary course of business consistent with past practice and in the aggregate do not exceed $80,000 (calculated as the aggregate incremental cost to the Group Companies resulting therefrom on a monthly basis), (C) pay any bonus or severance pay to any current or former director, officer or employee of the Company or any of its Subsidiaries other than in the ordinary course of business or in accordance with the terms of a Benefit Plan as in effect on the date hereof, (D) grant any stock options, stock appreciation rights, restricted shares, restricted stock units or equity-based compensatory awards, (E) accelerate the payment, right to payment or vesting of any compensation or benefits, including any Company Options, (F) take any action to fund or in any other way secure the payment of compensation or benefits under any Benefit Plan or any plan, program, policy, practice or arrangement that would be a Benefit Plan if in effect on the date of this Agreement, (G) hire any Person whose target annual compensation is expected to exceed US$100,000 or (H) terminate the employment of any Person whose target annual compensation is expected to exceed US$100,000, other than a termination by the Company or any of its Subsidiaries for cause; except, in the case of each of clauses (A) through (H), as required by applicable Law or required by any Benefit Plan; (xi) enter into any new line of business that is material to the Company and its Subsidiaries taken as a whole; (xii) make any material change to its methods of accounting in effect at December 31, 2021, except as required by a change in U.S. GAAP (or modify any contractinterpretation thereof) or in applicable Law, agreementor make any change, commitment or arrangement other than in the ordinary course of business, with respect to accounting policies, unless required by U.S. GAAP or a competent Governmental Entity; (xiii) except in the ordinary course of business, (A) make, change or revoke any material Tax election, (B) amend any income or other material Tax Return, (C) enter into any “closing agreement” under Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) with respect to Taxes, (D) knowingly surrender any right to claim a refund of a material amount of Taxes, (E) settle or finally resolve any audit, proceeding or controversy with respect to a material amount of Taxes, (F) change any method of Tax accounting, (G) consent to any extension or waiver of the limitation period applicable to any material Taxes; (xiv) adopt a plan of merger, complete or partial liquidation or dissolution or resolutions providing for or authorizing such merger, liquidation or dissolution, or a consolidation, recapitalization or bankruptcy reorganization of the Company or any of its Subsidiaries; (xv) make or incur any capital expenditures (or any obligations or liabilities in respect thereof), other than any capital expenditures (or obligations or liabilities in respect thereof) in an amount not to exceed US$150,000 in the aggregate; (xvi) transfer or license from any Person any rights to any Intellectual Property that is material to the business of the Group Companies, taken as a whole, or transfer or grant an exclusive license to any Person any rights to any Company IP Rights, in each case not in the ordinary course of business; (xvii) abandon, fail to maintain or allow to lapse, including by failure to pay the required fees in any jurisdiction, or disclaim, dedicate to the public, sell, assign or grant any security interest in, to or under any material Company IP Rights or develop, create or invent any material Intellectual Property jointly with any third party; (xviii) fail to keep in force insurance policies that provide insurance coverage with respect to the assets, operations and activities of the Company or any of its Subsidiaries as are currently in effect and are material to the Group Companies, taken as a whole; or (xix) agree, resolve or authorize or commit to do any of the foregoing; (d) . Nothing contained in this Agreement is intended to give Parent, directly or indirectly, the Company shall notify ADS promptly right to control or direct the operations of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or any of its Subsidiaries prior to the existence Effective Time. Prior to the Effective Time, each of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company and its Subsidiaries shall comply in all material respects exercise, consistent with all legal requirements the terms and contractual obligations applicable to conditions of this Agreement, complete control and supervision over its operations and business and pay all applicable taxes; andits respective Subsidiaries’ operations

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to the Closing Date: Section 9.1, except (ai) as set forth in Section 6.1 of the Company shall conduct its business and operations only in the usual and ordinary course of business; Disclosure Letter, (bii) Except as contemplated expressly required by this Agreement, and (iii) as necessary may be required by Law or (iv) as consented to effect the proposals contained in the Company Proxy Statement to writing by Parent (which consent shall not be filed (the “Company Proxy Statement”unreasonably withheld, delayed or conditioned), the Company (x) shall and shall cause its Subsidiaries to, conduct its business in all material respects in the ordinary course of business and use commercially reasonable efforts to preserve its business organization intact, and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors and tenants, and (y) shall not, and shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber permit any of its assets; Subsidiaries to: (iia) amend its charter, articles of organization, declaration of trust, articles of incorporation, limited partnership agreement, operating agreement, bylaws, limited liability company agreement or propose to amend its Certificate equivalent organizational documents or waive any provision of Incorporation or Bylaws; Article VII of the Company Articles; (iiib) split, combine combine, subdivide or reclassify any outstanding shares of capital stock of the Company or any of its capital stock, or Subsidiaries; (c) declare, set aside or pay any dividend on or make any other distribution payable distributions (whether in cash, stock, property or otherwise otherwise) with respect to shares of capital stock of the Company or any of its capital stockSubsidiaries or other equity securities or ownership interests in the Company or any of its Subsidiaries, except for (A) the authorization and payment by the Company of dividends, payable quarterly in accordance with past practice for the period up to the Closing Date at a rate not to exceed a quarterly rate of (x) $0.22 per Company Common Share and (y) $0.44531 per share of Company Series B Preferred Stock, (z) $0.22 per unit of Company OpCo (B) the declaration and payment of dividends or other distributions to the Company by any directly or indirectly wholly owned Company Subsidiary, and (C) the authorization and payment by the Company of the dividends, payable semi-annually in respect of shares of Gramercy Investment Trust and Gramercy Investment Trust II not to exceed $16,000.00 in the aggregate; provided, however, that, notwithstanding the restriction on dividends and other distributions in this Section 6.1(c), the Company and any of its Subsidiaries shall, subject to Section 6.7, be permitted to make distributions, including under Sections 858 or 860 of the Code, reasonably necessary for the Company to maintain its qualification as a REIT under the Code or applicable state Law and avoid the imposition of any entity level income or excise Tax under the Code or applicable state Law (ivany such distribution, a “Special Distribution”); (d) except as required by a Company Benefit Plan, redeem, purchase or acquire otherwise acquire, or offer to redeem, purchase or otherwise acquire, any Company Equity Interests, except from holders of (i) Restricted Company Share Awards, Company RSU Awards, Company Options or Phantom Share Awards in full or partial payment of any purchase price and any applicable Taxes payable by such holder upon the lapse of restrictions on the Restricted Company Share Awards, Company RSU Awards, Company Options or Phantom Share Awards and (ii) fractional interests of Company Equity Interests solely with respect to the fractional interests; (e) except as required by any Company Leases, acquire or agree to acquire (including by merger, consolidation or acquisition of stock or assets) any real property, personal property (other than personal property at a total cost of less than Two Million U.S. Dollars ($2,000,000) in the aggregate), corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof, except (A) acquisitions by the Company or any wholly owned Company Subsidiary of or from an existing wholly owned Company Subsidiary or joint venture partners pursuant to existing purchase rights or options, or (B) the pending acquisitions set forth on Section 6.1(e) of the Company Disclosure Letter (the pending acquisitions described in this clause (B), the “Company Pending Acquisitions”); (f) sell, pledge, lease, assign, transfer dispose of or encumber, or effect a deed in lieu of foreclosure with respect to, any property or assets, or voluntarily exercise any purchase or sale rights or rights of first offer pursuant to any agreement with a Company Joint Venture where the exercise of any such right is not otherwise required under the circumstances pursuant to the terms of the applicable agreement, except (A) as set forth on Section 6.1(f) of the Company Disclosure Letter, (B) pledges and encumbrances on property and assets in the ordinary course of business and that would not be material to any Company Property or any assets of the Company or any of its Subsidiaries, (C) with respect to property or assets with a value of less than Two Million U.S. Dollars ($2,000,000) in the aggregate, and (D) sales to joint venture partners pursuant to existing purchase rights or options; (g) incur, create, assume, refinance or replace any Indebtedness for borrowed money or issue or amend or modify the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Company Subsidiary), except (A) Indebtedness incurred under the Company’s existing revolving credit facility for working capital purposes in the ordinary course of business (including to the extent necessary to pay dividends permitted under this Agreement and to pay Indebtedness that matures), (B) funding any Company Pending Acquisitions, or (C) the refinancing of any existing Indebtedness of the Company or any of its Subsidiaries to the extent that (1) the material terms and conditions of any newly incurred Indebtedness are reasonable market terms and (2) the aggregate principal amount of such Indebtedness is not increased as a result of such refinancing; (h) make any material loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, affiliates, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of another entity, other than (A) by the Company or a wholly owned Company Subsidiary to the Company or a wholly owned Company Subsidiary, (B) loans or advances (i) required to be made under any of the Company Leases or ground leases affecting the Company Properties or (ii) made to non-Affiliate tenants in the ordinary course of business and consistent with past practice, or (C) the loans or advances set forth on Section 6.1(h) of the Company Disclosure Letter; (i) enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any rights or claims under, any Company Material Contract (or any contract that, if existing as of the date of this Agreement, would be a Company Material Contract), other than (A) any termination or renewal in accordance with the terms of any existing Company Material Contract that occur automatically without any action by the Company or any of its Subsidiaries, (B) the entry into any modification or amendment of, or waiver or consent under, any mortgage or related agreement to which the Company or any of its Subsidiaries is a party as required or necessitated by this Agreement or the Transactions; provided that any such modification, amendment, waiver or consent does not increase the principal amount thereunder or otherwise materially adversely affect the Company, any of its Subsidiaries or Parent, (C) as may be reasonably necessary to comply with the terms of this Agreement, (D) to preserve the commercial interests of the Company and its Subsidiaries consistent with past practice; provided that any actions taken by the Company pursuant to this clause (D) shall not have an adverse economic impact on the Company in excess of an aggregate of One Million U.S. Dollars ($1,000,000) per year in the case of a recurring payment or Five Million U.S. Dollars ($5,000,000) in the aggregate in the case of any non-recurring payment obligation, (E) the entry into any amendment, termination, waiver, release, compromise or assignment of any Company Lease made in the ordinary course of business, or (F) actions permitted under clauses (A) through (C) of Section 6.1(g); (j) except as set forth on Section 6.1(j) of the Company Disclosure Letter, enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any rights or claims under, any Company Lease (or any lease for real property that, if existing as of the date of this Agreement, would be a Company Lease), except to preserve the commercial interests of the Company and its Subsidiaries consistent with past practice, provided that any actions taken by the Company pursuant to this Section 6.1(j) shall not have an adverse economic impact on the Company in excess of an aggregate of One Million U.S. Dollars ($1,000,000) per year in the case of a recurring payment or Five Million U.S. Dollars ($5,000,000) in the aggregate in the case of any non-recurring payment obligation; (k) settle or compromise (A) any material legal action, suit or arbitration proceeding, in each case made or pending against the Company or any of its Subsidiaries, including any such matter relating to Taxes, and (B) any legal action, suit or proceeding involving any present, former or purported holder or group of holders of the Company Common Shares, in each case, where the amount paid by the Company or any of its Subsidiaries in settlement exceeds Five Hundred Thousand U.S. Dollars ($500,000) individually and is not covered by insurance; (l) except as required by Law or by a Company Benefit Plan, (A) enter into, materially amend or terminate any Company Benefit Plan, (B) except in the ordinary course of business consistent with past practice, increase the compensation or employee benefits of any employee or independent contractor, (C) grant any awards under a Company Equity Plan, other than with respect to the grant of annual equity awards to directors of the Company, or (D) fund any rabbi trust; (m) make any material change to its methods of accounting in effect at December 31, 2014, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business, with respect to accounting policies, unless required by GAAP or the SEC; (n) enter into any material new line of business; (o) take any action, or fail to take any action, which would reasonably be expected to cause the Company to fail to qualify as a REIT or any of its Subsidiaries to cease to be treated as a partnership or disregarded entity for federal income tax purposes (other than as contemplated by Section 6.10) or as a qualified REIT subsidiary, a taxable REIT subsidiary or a REIT under the applicable provisions of Section 856 of the Code, as the case may be; (p) adopt a plan of merger, complete or partial liquidation or resolutions providing for or authorizing such merger, liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization, except in connection with any Company Pending Acquisitions permitted pursuant to Section 6.1(e); (q) amend or modify the compensation terms or any other obligations of the Company contained in the engagement letters entered into with the Company Financial Advisor or the Persons listed on Section 4.24 of the Company Disclosure Letter, in a manner materially adverse to the Company, any of its Subsidiaries or Parent or engage other financial advisers in connection with the transactions contemplated by this Agreement; (r) make any capital expenditures or other investments except (A) in accordance with the Company CapEx Budget, (B) as required to be made under any of the Company Leases or ground leases affecting the Company Properties, (C) as required to be made pursuant to any Law, (D) for ordinary course capital expenditures not to exceed $500,000 in the aggregate or (E) as reasonably required to satisfy any health or safety concerns at any of the Company Properties; (s) except for (A) issuances by a wholly owned Company Subsidiary to the Company or another wholly owned Company Subsidiary, (B) issuances as a result of the exercise of Company Options as of the date of this Agreement, (C) conversions of the Company Series B Preferred Stock, (D) issuances as a result of the OpCo Merger, or (E) conversions or redemptions of Company OpCpo limited partnership interests, issue, sell, pledge, dispose, encumber or grant any Company Common Shares or any of the Company Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares Company Common Shares or any of its the Company Subsidiaries’ capital stock or other securitiesequity interests; or (vt) create any subsidiaries; (vi) authorize, or enter into or modify any contract, agreement, commitment or arrangement with respect to do any of the foregoing; (c) Except as contemplated by . Notwithstanding anything to the contrary set forth in this Agreement, and those items contained but subject to Section 6.7, nothing in this Agreement shall prohibit the Company from taking any action, at any time or from time to time, that in the Company Proxy Statement to be filedreasonable judgment of the Company, upon advice of counsel, is reasonably necessary for the Company shall not to maintain its qualification as a REIT under the Code for any period or portion thereof ending on or prior to the Effective Time or to avoid incurring entity level income or excise Taxes under the Code, including making dividend or other distribution payments to shareholders of the Company in accordance with this Agreement (iincluding Section 6.7) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) earlier of the Effective Time or the termination of this Agreement, except as set forth in Section 6.1 of the Company Confidential Disclosure Schedule or as specifically required or permitted by this Agreement or required by Law, unless Parent shall otherwise consent thereto in writing, the Company shall, and shall cause each of its Subsidiaries to, conduct its business and operations only in the ordinary and usual and ordinary course of business; business consistent with past practice and, to the extent consistent therewith, shall use its reasonable best efforts to (x) preserve its and each of its Subsidiaries’ business organization and its rights, authorizations, franchises and other authorizations issued by Governmental Entities intact, (y) keep available the present services of the current officers and employees of the Company and each of its Subsidiaries, and (z) preserve the goodwill of the customers of the Company and each of its Subsidiaries with whom business relationships exist. By way of amplification and not limitation, except as set forth in Section 6.1 of the Company Confidential Disclosure Schedule or as specifically required or permitted by any other provision of this Agreement or required by Law, between the date of this Agreement and the earlier of the Effective Time or the termination of this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent (which consent shall not be unreasonably withheld or delayed): (a) amend or otherwise change its Company Articles or Bylaws or equivalent organizational documents; (b) Except enter into a plan of consolidation, merger, share exchange, reorganization or similar business combination with or involving any other Person, or a letter of intent or agreement in principle with respect thereto, other than in accordance with Section 6.3(e) of this Agreement or as contemplated by this Agreement; (c) issue, and as necessary to effect sell, pledge, dispose of, grant, transfer, encumber, or authorize the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)issuance, sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock or rights of, or other Equity Interests in, the Company shall not directly or indirectly do any of its Subsidiaries of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the following: Company or any of its Subsidiaries, including but not limited to any shares of capital stock to be issued but excluding the issuance of Company Common Stock upon the exercise or conversion of Company Options or Company Warrants outstanding as of the date hereof in accordance with their terms; (id) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or encumber any deposits of its assetsthe Company Bank, except (i) pursuant to existing Contracts or commitments listed on Section 6.1(d) of the Company Confidential Disclosure Schedule; (ii) amend the sale of SBA or propose to amend its Certificate commercial loans in the ordinary course of Incorporation business consistent with past practice; or Bylaws; (iii) splitthe sale or purchase of goods or the pledge of securities in the ordinary course of business consistent with past practice and in a transaction that together with all other transactions is not material to the Company and its Subsidiaries taken as a whole; (e) other than normal quarterly cash dividends not in excess of $0.05 per share of Company Common Stock, combine or reclassify any outstanding shares of its capital stock, or declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof); provided, however, that no dividends shall be paid by the Company or any Subsidiary if (i) the Company or any Subsidiary shall be required to borrow funds to do so or (ii) such dividend shall cause the Company or any Subsidiary to cease to qualify as a “well-capitalized” institution under applicable FRB or FDIC rules; (f) reclassify, combine, split, subdivide or redeem, purchase or otherwise with respect to shares acquire, directly or indirectly, any of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock other Equity Interests or other securities; ; (v) create any subsidiaries; (vig) enter into any agreement or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or otherwise agree to issueacquire, sell, pledge directly or dispose of, any additional shares of, indirectly (whether by merger or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or by formation of a joint venture or otherwise) ), all or any corporationportion of the assets or properties of any business, partnership or any interest therein (other than by way of foreclosures or acquisitions of control in a bona fide fiduciary capacity or in satisfaction of debts previously contracted in good faith in the ordinary course of business organization or division or the material assets thereof; consistent with past practice); (iiih) incur any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any indebtedness person for borrowed money, other than in the ordinary course of business consistent with past practice; (i) terminate, cancel or request any material change in, or agree to othersany material change in, or enter into any new, Company Material Agreement, other than in the ordinary course of business and consistent with past practice; (j) except as may be required by contractual commitments or corporate policies with respect to bonuses, annual salary increases, severance or termination pay in existence on the date of this Agreement and except for bonus payments identified in Section 6.1(j) of the Company Confidential Disclosure Schedule relating to service performed during the Company’s 2005 fiscal year: (i) increase the compensation or benefits payable or to become payable to its current or former directors, officers or employees other than increases in compensation for non-executive officers and other employees in the ordinary course of business and consistent with past practice; (ii) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any current or former director, officer or other employee of the Company or any of its Subsidiaries, or establish, adopt, enter into, make any contribution to, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any current or former director, officer or employee, except to the extent required by applicable Law or this Agreement or to satisfy contractual obligations existing as of the date hereof or as otherwise set forth on Schedule 6.1(j) of the Company Confidential Disclosure Schedule; or (iviii) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan, other than as permitted by this Agreement; (k) hire any person as an employee of the Company or any of its Subsidiaries or promote any employee, except (i) to satisfy contractual obligations existing as of the date hereof and set forth in Section 6.1(k) of the Company Confidential Disclosure Schedule, (ii) persons hired to fill any vacancies arising after the date hereof and whose employment is terminable at the will of the Company or applicable Subsidiary, and (iii) persons hired to fill newly created positions other than any person to be hired under this clause (iii) who would be entitled to receive cash compensation, including any guaranteed bonus, of more than $75,000 per annum; (l) enter into any new line of business except as set forth in Section 6.1(l), offer any new product or modify change its material lending, investment, underwriting, risk and asset liability management and other material banking and operating policies except as required by a Governmental Entity or file any contract, agreement, commitment application or arrangement make any contract with respect to branching or site location or branching or site relocation; (m) enter into any Derivatives Transaction; (n) acquire (other than by way for foreclosures or acquisitions in a bona fide fiduciary capacity or in satisfaction of debts previously contracted in good faith, in each case in the ordinary course of business consistent with past practice) any debt security or equity investment other than federal funds or United States government securities or United States government agency securities, in each case with a term of one (1) year or less; (o) make any loan, loan commitment or renewal or extension thereof to any Person which would, when aggregated with all outstanding loans, commitments for loans or renewals or extensions thereof made to such Person and any affiliate or immediate family member of such Person, exceeds $2,000,000 without submitting complete loan package information customarily submitted to the Company Bank Board or the Company Bank loan committee in connection with obtaining approval of such action to the chief financial officer of Parent for review with a right of comment at least three (3) Business Days prior to taking such action; provided, that, if Parent objects in writing to such loan or loan commitment or renewal or extension thereof by the end of such third Business Day, the Company shall be required to obtain the approval of a majority of the members of (i) the Company or Company Bank Board (as applicable) or (ii) the Company Bank loan committee, prior to making such loan or loan commitment or renewal or extension thereof; (p) make any capital expenditures other than those identified in Section 6.1(p) of the Company Confidential Disclosure Schedule and other additional capital expenditures in the ordinary course of business consistent with past practice not exceeding $50,000 individually or $100,000 in the aggregate; (q) accelerate the payment of any material liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice; (r) make any material change in accounting policies or procedures, other than as required by GAAP or by a Governmental Entity; (s) waive, release, assign, settle or compromise any claims, or any litigation or arbitration for an amount in excess of $50,000, individually, or $100,000 in the aggregate, or which would impose any restriction on the Company’s or any Subsidiary’s ability to conduct its business as presently conducted or would create a precedent for claims that are reasonably likely to be material to the Company and its Subsidiaries taken as a whole; (t) make any material tax election, settle or compromise any material liability for Taxes, extend the statute of limitations with any Tax authority, or file any proceeding in court in any tax litigation or any appeal from an asserted tax deficiency file or amend any Tax Return or file any refund for Taxes, other than in the ordinary course of business; (u) reclassify any investment security from hold-to-maturity or available to sale to trading; or (v) authorize or enter into any agreement or otherwise make any commitment to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Date, the Company covenants and agrees that prior to the Closing Date: (a) that, unless Target shall otherwise agree in writing or as required or permitted under this Agreement, the Company shall conduct its business only in, and operations only the Company shall not take any action except in the usual normal and ordinary course of businessbusiness in substantially the same manner as conducted previously; (b) Except and the Company shall use its commercially reasonable efforts to preserve substantially intact the business organization of the Company, to keep available the services of the present officers, employees and consultants of the Company and its subsidiaries and to preserve the present relationships of the Company with customers, suppliers and other persons with which the Company has significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), Agreement the Company shall not not, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Date, directly or indirectly do do, or propose to do, any of the following: following without the prior written consent of Target (inot to be unreasonably withheld): (a) amend or otherwise change the Company’s articles of incorporation or bylaws; (b) issue, sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockencumber, or declareauthorize the issuance, set aside sale, pledge, disposition or pay any dividend or other distribution payable in cashencumbrance of, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create Company Stock of any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares ofclass, or any options, warrants, conversion privileges convertible securities or other rights of any kind to acquire any shares of Company Stock, or any other ownership interest (including, without limitation, any phantom interest) of the Company, any subsidiary or any of its Affiliates (except the exercise of currently outstanding options and warrants in accordance with their terms); (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its common stock, (ii) split, combine or reclassify any of its common stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital common stock; , (iiiii) amend the terms of, repurchase, redeem or otherwise acquire, or permit any subsidiary to repurchase, redeem or otherwise acquire, any of its securities or any securities of a subsidiary, except in accordance with preexisting commitments as of the date hereof, or propose to do any of the foregoing; (d) (i) acquire (by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any company, corporation, partnership or other business organization or division thereof, or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify amend any contract, agreement, commitment or arrangement to effect any such acquisition, (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse (other than checks in the ordinary course of business) or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances; (iii) to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any entity; (iv) to enter into or amend any material agreement or contract which provides for the sale, license, or purchase by the Company or any of its subsidiaries of assets; or (v) authorize any capital expenditures or purchase of fixed assets which are individually in excess of $25,000 or, in the aggregate, in excess of $100,000; (e) take any action to change accounting policies or procedures (including, without limitation, procedures with respect to revenue recognition, payments of accounts payable and collection of accounts receivable) (except as required by GAAP); (f) make any material Tax election inconsistent with past practices or settle or compromise any material federal, state, local or foreign Tax liability or agree to an extension of a statute of limitations; (g) fail to file, subject to any extension provided under Rule 12b-25 of the Exchange Act, any quarterly or annual Exchange Act Report on or prior to the date such report is due or engage in any activity that might cause the Over-the-Counter-Bulletin Board to refuse to allow the Company’s common stock to be quoted on the Over-the-Counter-Bulletin Board; (h) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business; and (i) engage in any action or enter into any transaction or permit any action to be taken or transaction to be entered into that could reasonably be expected to delay the consummation of, or otherwise adversely affect, any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andtransactions contemplated by this Agreement.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Effective Time, except as set forth in Section 5.1 of the Company Disclosure Schedule or as specifically permitted by any other provision of this Agreement, unless Parent shall otherwise agree in writing, the Company will, and will cause each of its Subsidiaries to conduct its business and operations only in the ordinary and usual and ordinary course of business; (b) Except as contemplated by this Agreementbusiness consistent with past practice. Without limiting the foregoing, and as necessary to effect the proposals contained an extension thereof, except as set forth in Section 5.1 of the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule or as specifically permitted by any other provision of this Agreement, the Company shall not (unless required by applicable Law), and shall not permit any of its Subsidiaries to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Parent: (a) amend or otherwise change its certificate of incorporation or bylaws or equivalent organizational documents; (b) (i) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock of, or other Equity Interests in, the Company or any of its Subsidiaries of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the Company or any of its Subsidiaries, other than (x) the issuance of Company Common Stock upon the exercise or conversion of Company Options, Company Warrants and Company Debentures outstanding as of the date hereof in accordance with their terms, (y) the granting of up to 200,000 options to purchase shares of Company Common Stock in the ordinary course of business consistent with past practice or (z) the issuance of shares of Company Common Stock to the holders of Company Debentures in satisfaction of periodic interest payments due under the Company Debentures, or (ii) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or encumber any of its assets; (ii) amend Subsidiaries, except pursuant to existing Contracts or propose to amend its Certificate commitments or the sale or purchase of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares goods in the ordinary course of its capital stockbusiness consistent with past practice, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice; (c) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares any of its capital stock (other than dividends paid by a wholly-owned Subsidiary of the Company to the Company or to any other wholly-owned Subsidiary of the Company) or enter into any agreement with respect to the voting of its capital stock; ; (ivd) except as otherwise contemplated by Section 5.15, reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock stock, other Equity Interests or other securities; ; (ve) create (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any subsidiaries; interest in any person or any division thereof or any material assets, (viii) 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 (other than a wholly-owned Subsidiary of the Company) for borrowed money, (iii) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract, or (iv) enter into or modify amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1(e); (f) except as may be required by contractual commitments or corporate policies with respect to bonuses, annual salary increases, severance or termination pay in existence on the date of this Agreement as disclosed in Section 3.11(b) of the Company Disclosure Schedule: (i) increase the compensation or benefits payable or to become payable to its directors, officers or employees; (ii) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of its Subsidiaries, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law; or (iii) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan; (g) (i) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms, (ii) accelerate or delay collection of any material notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, or (iii) delay or accelerate payment of any material account payable in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice; (h) make any change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice or except as required by GAAP or by a Governmental Entity; (i) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration; (j) make any material tax election, settle or compromise any material liability for Taxes, amend any Tax Return or file any refund for Taxes; (k) take, or agree to take, any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; (l) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which the Company is a party; (m) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article VI not being satisfied; or (n) authorize or enter into any agreement or otherwise make any commitment to do any of the foregoing; (c) Except as contemplated by provided, however, that nothing in this Agreement, and those items contained Section 5.1 shall in any way limit the Company Proxy Statement to be filedfrom fulfilling its continuing obligations under the Exchange Agreement effective June 4, 2003, which obligations are set forth in Section 5.1 of the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andDisclosure Schedule.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to the Closing Date: Section 8.1, except (a) as set forth in Section 5.1 of the Company shall conduct its business and operations only in the usual and ordinary course of business; Disclosure Letter, (b) Except as contemplated specifically required by this Agreement, and (c) as necessary required by Law or (d) as consented to effect the proposals contained in the Company Proxy Statement to writing by Parent (which consent shall not be filed (the “Company Proxy Statement”unreasonably withheld, delayed or conditioned), the Company shall not directly or indirectly do any of the following: (i) shall and shall cause each Company Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice, and use reasonable best efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers and other Persons with whom it and they have material business relations; provided, however, that no action that is specifically permitted by any of clauses (a) through (e) of Section 5.1(ii) shall be deemed a breach of this clause (i), and (ii) agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company shall not, and shall not permit any Company Subsidiary to: (a) authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, shares or other securities of the Company or any Company Subsidiary), except (i) that the Company may continue the declaration and payment of regular quarterly cash dividends on the Company Shares, not to exceed $0.145 per share for each quarterly dividend, with usual record and payment dates for such dividends in accordance with past dividend practice to the extent that any such dividend would not be a “non-ordinary course distribution” within the meaning of IRS Notice 2014-52, and (ii) for dividends and distributions paid or made on a pro rata basis by a Company Subsidiary in the ordinary course of business consistent with past practice or by a wholly-owned Company Subsidiary to the Company or another wholly-owned Company Subsidiary; (b) split, combine, reduce or reclassify any of its capital stock, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock, except for any such transaction by a wholly-owned Company Subsidiary which remains a wholly-owned Company Subsidiary after consummation of such transaction; (c) except as required by applicable Law or any Company Benefit Plan in existence as of the date hereof, (i) increase the compensation or benefits payable or to be provided to any of its directors or executive officers (other than increases in annual base salaries and target incentive compensation opportunities at times and in amounts in the ordinary course of business consistent with past practice), (ii) grant or increase to any of its directors or executive officers any severance, termination, change in control or retention pay, (iii) pay or award, or commit to pay or award, any cash bonuses or cash incentive compensation to any of its directors or executive officers (other than as permitted by clause (i) of this Section 5.1(c) and other than the payment of accrued and unpaid cash bonuses or other cash incentive compensation), (iv) enter into any employment, severance, change in control or retention agreement with any of its directors or executive officers (other than offer letters that do not otherwise provide for severance, change in control or retention payments or benefits), (v) establish, adopt, enter into, amend or terminate any collective bargaining agreement (other than a renewal of an existing collective bargaining agreement in the ordinary course or business) or Company Benefit Plan (or a plan or arrangement that would be a Company Benefit Plan if in existence as of the date hereof), or (vi) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to be provided to any of its directors or executive officers; (d) make any material change in financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, applicable Law or SEC policy; (e) amend the Company Governing Documents, and shall not permit any Subsidiary of the Company to adopt any amendments to its governing documents; (f) issue, deliver, grant, sell, pledge, dispose of or encumber encumber, or authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any of shares in its assets; capital stock (ii) amend including restricted stock), voting securities or propose other equity interest in the Company or any Company Subsidiary or any securities convertible into or exchangeable for any such shares, voting securities or equity interest, or any rights, warrants or options to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify acquire any outstanding such shares of in its capital stock, voting securities or declare, set aside equity interest or pay any dividend or other distribution payable in cash, “phantom” stock, property “phantom” stock rights, stock appreciation rights or stock based performance units or take any action to cause to be exercisable any otherwise unexercisable Company Equity Award under any existing Company Equity Plan (except as otherwise provided by the express terms of any Company Equity Award outstanding on the date hereof), other than issuances of Company Shares (i) in respect of any exercise of Company Warrants or the vesting, lapse of restrictions with respect to or settlement of Company Equity Awards outstanding as of the date hereof, or issued in accordance with this Agreement, in each case, in accordance with their respective terms, (ii) pursuant to the terms of the Company Equity Plans, subject to Section 2.3(d) or (iii) transactions between the Company and a wholly-owned Company Subsidiary or between wholly-owned Company Subsidiaries; (g) directly or indirectly, purchase, redeem or otherwise acquire any shares of in its capital stock; (iv) redeemor any rights, purchase warrants or acquire or offer options to acquire any such shares in its capital, except for (i) redemptions or acquisitions of Company Shares tendered by holders of Company Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (ii) the redemption or acquisition by the Company of Company Equity Awards in connection with the forfeiture of such awards and (iii) transactions between the Company and a wholly-owned Company Subsidiary or between wholly-owned Company Subsidiaries; (h) make any loans to any other Person, except for loans among the Company and its capital stock wholly-owned Company Subsidiaries or other securities; among the Company’s wholly-owned Company Subsidiaries; (vi) create make or change any subsidiaries; (vi) material Tax election, change any Tax accounting period for purposes of a material Tax or material method of Tax accounting, file any material amended Tax Return, settle or compromise any audit or proceeding relating to a material amount of Taxes, agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes, enter into any “closing agreement” within the meaning of Section 7121 of the Code (or modify any contractsimilar provision of state, agreementlocal, commitment or arrangement non-U.S. Law) with respect to any material Tax, surrender any right to claim a material Tax refund, or take any action which would cause Parent to be treated as a domestic corporation for U.S. federal income tax purposes pursuant to Section 7874(b) of the foregoingCode from and after the Closing Date as a result of the Transactions; or (cj) Except as contemplated by this Agreementagree, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets writing or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to take any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andforegoing actions.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Effective Time, except as set forth in Section 5.1 of the Company Disclosure Schedule or as contemplated by any other provision of this Agreement, unless Parent shall conduct its otherwise agree in writing, which agreement shall not be unreasonably withheld or delayed, the business of the Company and operations the Company Subsidiaries shall be conducted only in in, and the usual Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business; (b) Except . By way of amplification and not limitation, except as set forth in Section 5.1 of the Company Disclosure Schedule or as contemplated by any other provision of this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not (unless required by applicable Laws or NASDAQ regulations) cause or permit the Company or any Company Subsidiary, or any of their officers, directors, employees and agents, to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (ia) amend or otherwise change its Articles of Incorporation or By- laws or equivalent organizational documents; (b) issue, sell, pledge, dispose of of, grant, transfer, lease, license, guarantee, encumber, or encumber authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, (i) any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock of the Company or any Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable or exercisable securities, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Company Subsidiary or (ii) other than in the ordinary course of business and in a manner consistent with past practice, any property or assets of the Company or any Company Subsidiary, except (A) the issuance of Company Common Stock upon the exercise of Company Options, the grant of options to purchase up to an additional 50,000 shares of Company Common Stock under the Company Stock Plans and the issuance of shares upon exercise thereof, (B) pursuant to contracts or agreements in force at the date of this Agreement, or (C) that the Company may amend the Rights Agreement; provided that no such amendment shall result in Parent or any of its affiliates or associates becoming an "Acquiring Person" thereunder as a result of the transactions contemplated hereby or otherwise exempt any third person from the definition of "Acquiring Person"; (c) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock (other than regular quarterly cash dividends at a rate not in excess of $.07 per share of Company Common Stock declared and paid in accordance with past practice and dividends paid by Company Subsidiaries to the Company or to other Company Subsidiaries in the ordinary course or dividends in respect of preferred stock of a Company Subsidiary) or enter into any agreement with respect to the voting of its capital stock; ; (ivd) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock (other than any preferred stock of a Company Subsidiary); (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other securitiesbusiness organization, person or any division thereof (other than a wholly owned Company Subsidiary or any preferred stock of a Company Subsidiary) or any assets, other than acquisitions of assets in the ordinary course of business; (vii) create incur any subsidiariesindebtedness 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 for borrowed money, except for (A) indebtedness for borrowed money incurred in the ordinary course of business or in connection with transactions otherwise permitted under this Section 5.1, (B) indebtedness incurred to refinance any existing indebtedness or (C) other indebtedness for borrowed money under existing credit facilities; or (viiii) enter into or modify amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1(e); (f) take any action with respect to accounting policies or procedures, other than actions in the ordinary course of business and consistent with past practice or except as required by changes in GAAP; (g) take any action that would prevent or impede the Merger from qualifying (A) for "pooling-of-interests" accounting treatment or (B) as a reorganization within the meaning of Section 368 of the Code; (h) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable Law; (i) amend any existing plan or program to provide, or adopt a new plan or program providing, for the payment to any class of employees of any additional compensation or benefits in connection with the transactions contemplated by this Agreement; or (j) authorize or enter into any formal or informal agreement or otherwise make any commitment to do any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants Between the date of this Agreement and agrees that prior to the Closing Date: (a) earlier of the Effective Time and the valid termination of this Agreement in accordance with Article 7, except as set forth in Section 5.1 of the Company Disclosure Schedule or as otherwise expressly contemplated by any other provision of this Agreement, or with the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, use its commercially reasonable efforts to (i) conduct its business and operations only in the usual and ordinary course of business; business in a manner consistent with past practice, and (bii) Except keep available the services of the current officers, employees and consultants of the Company and each of its Subsidiaries and to preserve the goodwill and current relationships of the Company and each of its Subsidiaries with customers, suppliers and other Persons with which the Company or any of its Subsidiaries has business relations. Without limiting the foregoing, except as set forth in Section 5.1 of the Company Disclosure Schedule or as otherwise expressly contemplated by any other provision of this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not, and shall not permit any of its Subsidiaries to, between the date of this Agreement and the earlier of the Effective Time and the valid termination of this Agreement in accordance with Article 7, directly or indirectly do indirectly, take any of the following: following actions without the prior written consent of Parent (inot to be unreasonably withheld, conditioned or delayed): (a) amend its certificate of incorporation or bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, transfer or encumber any shares of capital stock of, or other Equity Interests in, the Company or any of its Subsidiaries of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities of the Company or any of its Subsidiaries, other than the issuance of Shares upon the exercise of Company Options or settlement of Company RSUs, in each case, outstanding as of the date hereof in accordance with their terms; (c) sell, pledge, dispose of of, transfer, lease, license, guarantee or encumber any property or assets of the Company or any of its assets; Subsidiaries (other than Intellectual Property), except (i) pursuant to existing Contracts set forth in Section 5.1(c) of the Company Disclosure Schedule or (ii) amend the sale or propose to amend its Certificate purchase of Incorporation or Bylaws; goods in the ordinary course of business consistent with past practice; (iiid) splitsell, combine or reclassify any outstanding shares of its capital stockassign, pledge, transfer, exclusively license, abandon, or otherwise dispose of any material Company Owned Intellectual Property, except in the ordinary course of business consistent with past practice; (e) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (vEquity Interests, except for any dividends on Preferred Shares pursuant to Section 4(b) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated Certificate of Designations or dividends paid by this Agreement, and those items contained in a wholly-owned Subsidiary of the Company Proxy Statement to be filed, the Company shall not or another wholly-owned Subsidiary of the Company; (if) issuereclassify, sellcombine, pledge split, subdivide or dispose amend the terms of, or agree to issueredeem, sellpurchase or otherwise acquire, pledge directly or dispose ofindirectly, any additional shares ofof its capital stock or other Equity Interests; (g) adopt a plan of merger, merge or consolidate the Company or any optionsof its Subsidiaries with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, warrantsdissolution, conversion privileges restructuring, recapitalization or rights other reorganization of the Company or any kind to acquire any shares of, of its capital stock; Subsidiaries; (iih) acquire (including by merger, consolidation, or acquisition of stock or assets or otherwiseother similar transaction) any corporationPerson, partnership or other business organization or division or assets, other than acquisitions of inventory, equipment, personal property and raw materials in the ordinary course of business consistent with past practice; (i) repurchase, redeem, defease, cancel, prepay, forgive, issue, sell or otherwise incur, or amend in any material assets thereof; (iii) incur respect the terms of, any indebtedness for borrowed money, issue money or any debt securities of the Company or any of its Subsidiaries or assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), the obligations of any Person (other than a wholly-owned Subsidiary of the Company), except the Company and its Subsidiaries may incur indebtedness for borrowed money not to others; exceed one million dollars ($1,000,000) individually or in the aggregate; (j) make any loans, advances, investments or capital contributions to, or investments in, any other Person (other than any wholly-owned Subsidiary of the Company); (k) terminate, cancel or renew, or agree to any material amendment to or waiver under any Company Material Contract, or enter into or amend any Contract that, if existing on the date hereof, would be a Company Material Contract, other than in the ordinary course of business consistent with past practice; (l) except to the extent required by this Agreement, applicable Law or the existing terms of any Company Benefit Plan: (i) increase the compensation, fees or benefits payable or to become payable to any current or former Service Provider except the payment of bonuses or commissions to any current or former Service Provider in the ordinary course for completed periods based on actual performance, (ii) grant any new incentive compensation to any current or former Service Provider, (iii) grant or provide any change in control, severance, termination. retention or similar payments or benefits to any current or former Service Provider (including any obligation to gross-up, indemnify or otherwise reimburse any such individual for any Tax incurred by any such individual, including under Section 409A or 4999 of the Code), (iv) establish, adopt, enter into into, amend or modify terminate any contractCompany Benefit Plan (or any plan, agreementprogram, commitment policy, agreement or arrangement that would be a Company Benefit Plan if it were in existence on the date hereof), other than amendments in the ordinary course of business that do not materially increase the expense of maintaining such plan, (v) take any action to accelerate the vesting, payment or funding of any compensation or benefits under any Company Benefit Plan, (vi) hire, engage or promote any employee with an annual base salary of one hundred fifty thousand dollars ($150,000) or more or any independent contractor or consultant who is a natural person and who is or would reasonably be expected to receive an annualized fee of twenty five thousand ($25,000) or more, (vii) terminate (other than for cause) the employment or service of (1) any employee in connection with any reduction in force or mass termination or (2) any employee with an annual base salary of one hundred fifty thousand dollars ($150,000) or more or any independent contractor or consultant who is a natural person and who is or would reasonably be expected to receive an annualized fee of twenty five thousand ($25,000) or more or (viii) change any material actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; 39 (m) make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (n) compromise, settle or agree to settle any Proceeding other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of monetary damages not in excess of five hundred thousand dollars ($500,000) individually or two million five hundred thousand dollars ($2,500,000) in the aggregate, in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries, and which do not impose any material restrictions on the operations or business of the Company or its Subsidiaries, taken as a whole; (o) make any capital expenditures in the aggregate (or any authorization or commitment with respect thereto) in any period in excess of the aggregate amount of capital expenditures for such period set forth in the capital expenditures budget set forth in Section 5.1(o) of the Company Disclosure Schedule, other than capital expenditures set forth on Section 5.1(o) of the Company Disclosure Schedule; (p) enter into any material partnership, joint venture or similar business organization; (q) enter into any Contract between the Company or any Subsidiary, on the one hand, and any affiliates (other than the Company and its Subsidiaries) of the Company, on the other hand other than advances for business, travel-related, relocation or other similar expenses in accordance with any currently existing Company policy; (r) adopt or implement any stockholder rights plan or similar arrangement that is, or at the Effective Time will be, applicable to this Agreement, the Merger or the transactions contemplated hereby; (s) except as required by Law or a Governmental Entity, make, change or revoke any material Tax election, change any of its material methods of accounting for Tax purposes, or enter into any settlement or “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) with respect to any material Tax claim, audit or dispute; (t) except as required by Law, (i) modify, extend or enter into any Labor Agreement or (ii) recognize or certify any labor or trade union, labor organization, works council or group of employees of the Company or its Subsidiaries; (u) waive the restrictive covenant obligations of any employee of the Company or its Subsidiaries; 40 (v) enter into any new line of business other than any line of business that is reasonably ancillary to and a reasonably foreseeable extension of any line of business as of the date of this Agreement; or (w) agree, authorize, resolve or announce an intention or enter into any Contract or otherwise make any commitment to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: Effective Time, except as set forth in Section 6.01 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless Parent shall otherwise agree in writing, (ax) the respective businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business consistent with past practice and (y) the Company shall conduct use all reasonable efforts to keep available the services of such of the current officers, significant employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with such of the corporate partners, customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations in order to preserve substantially intact its business organization. By way of amplification and operations only not limitation, except as set forth in Section 6.01 of the usual Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, neither the Company nor any Company Subsidiary shall, between the date of this Agreement and ordinary course the Effective Time, directly or indirectly, do, or agree to do, any of business; the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) amend or otherwise change its articles of incorporation or bylaws or equivalent organizational documents; (b) Except as contemplated by this Agreementissue, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of, grant, transfer, lease, license, guarantee or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license or encumbrance of, (i) any shares of capital stock of the Company or encumber any Company Subsidiary of its 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 any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Company Subsidiary except for (A) issues of Company Common Stock pursuant to options, warrants and convertible Company Capital Stock outstanding on the date hereof and disclosed as such pursuant to Section 4.03 and (B) employee stock option grants to non-officers and directors of the Company; PROVIDED, HOWEVER, that (x) such grants are at fair market value and at a level consistent with past practice, (y) Parent has received notice of the Company's intention to grant such options and has consented thereto in writing (which consent shall not be unreasonably withheld) and (z) the aggregate amount of such granted options does not exceed 10,000 shares of Company Common Stock, or (ii) any property or assets of the Company or any Company Subsidiary; (c) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or person or any division thereof; (ii) amend incur any indebtedness for borrowed money or propose to amend its Certificate issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of Incorporation any person for borrowed money or Bylawsmake any loans or advances; (iii) splitterminate, combine cancel or reclassify request any outstanding shares of its capital stockmaterial change in, or agree to any material change in, any Company Material Contract or enter into any contract or agreement material to the business, results of operations or financial condition of the Company and the Company Subsidiaries taken as a whole; (iv) enter into any contract or agreement relating to the provision or receipt of pharmacy products or services, therapy or supplies that is not cancelable without penalty upon not more than 60 days' notice; (v) make or authorize any capital expenditure, other than capital expenditures in the ordinary course of business consistent with past practice that have been budgeted for calendar year 1997 and disclosed to Parent and that are not, in the aggregate, in excess of $100,000 for the Company and the Company Subsidiaries taken as a whole; or (vi) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 6.01(c); (d) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock; , except that any Company Subsidiary may pay dividends or make other distributions to the Company or any other Company Subsidiary; (ive) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock stock; (f) amend or change the period (or permit any acceleration, amendment or change) of exercisability of options granted under the Company Stock Plans or authorize cash payments in exchange for any Company Stock Options granted under any of such plans; (g) amend the terms of, repurchase, redeem or otherwise acquire, or permit any Company Subsidiary to repurchase, redeem or otherwise acquire, any of its securities or any securities of any Company Subsidiary, or propose to do any of the foregoing, except for the mandatory redemption of any Series A Preferred Stock outstanding on the date hereof; (h) increase the compensation payable or to become payable to, or pay or enter into any agreement or understanding to pay any bonus to, its directors, officers, consultants or employees (other than increases in compensation for non-officer employees that are in the ordinary course of business consistent with past practice and the payment of bonuses to non- officer employees that are in the ordinary course of business consistent with past practice and pursuant to objective written criteria established by the board of directors of the Company PROVIDED that Parent has received notice of the Company's intention to implement such increase and has consented thereto in writing (which consent shall not be unreasonably withheld)), or grant any rights to severance or termination pay to, or enter into any employment or severance agreement which provides benefits upon a change in control of the Company that would be triggered by the Merger with, any director, officer, consultant or other securities; (v) create employee of the Company or any subsidiaries; (vi) Company Subsidiary who is not currently entitled to such benefits from the Merger, establish, adopt, enter into or modify amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, consultant or employee of the Company or any Company Subsidiary, except to the extent required by applicable Law or the terms of a collective bargaining agreement, or enter into or amend any contract, agreement, commitment or arrangement between the Company or any Company Subsidiary and any of the Company's directors, officers, consultants or employees; (i) pay, discharge, settle 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 and consistent with past practice of liabilities reflected or reserved against on the consolidated balance sheet of the Company and the consolidated the Company Subsidiaries dated as of June 30, 1996 included in the Company 1996 10-K and only to the extent of such reserves; (j) take any action with respect to accounting policies or procedures, other than actions in the ordinary course of business consistent with past practice or as required by U.S. GAAP; (k) make any tax election or settle or compromise any material Federal, state or local United States income tax liability, or any income tax liability of any other jurisdiction, other than those made in the ordinary course of business consistent with past practice and those for which specific reserves have been recorded on the consolidated balance sheet of the foregoing; (c) Except Company and the consolidated the Company Subsidiaries dated as contemplated by this Agreementof June 30, and those items contained 1996 included in the Company Proxy Statement 1996 10-K and only to be filed, the Company shall not extent of such reserves; (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (ivl) enter into or modify amend any contract, agreement, commitment or arrangement with respect with, or enter into any transaction with, or make any payment to or on account or behalf of, other than any such transactions or payments pursuant to the agreements set forth on Section 6.01(m) of the Company Disclosure Schedule any affiliate of the Company or of Principal Stockholder; or (m) authorize or enter into any formal or informal agreement or otherwise make any commitment to do any of the foregoing; (d) foregoing or to take any action which would make any of the representations or warranties of the Company shall notify ADS promptly of any material adverse event contained in this Agreement untrue or circumstance affecting ADS (including the filing of any material litigation against incorrect or prevent the Company from performing or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) cause the Company shall comply not to perform its covenants hereunder or result in all material respects with all legal requirements and contractual obligations applicable any of the conditions to its operations and business and pay all applicable taxes; andthe Merger set forth herein not being satisfied.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Effective Time, except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly required by applicable Law or this Agreement or otherwise with the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company will, and will cause each Company Subsidiary to, (i) conduct its business and operations only in the usual and ordinary course of business; business consistent with past practice, (bii) Except as contemplated by this Agreementuse commercially reasonable efforts to preserve substantially intact the goodwill and current relationships of the Company and each Company Subsidiary with significant customers, significant suppliers and other Persons with which the Company or any Company Subsidiary has significant business relations and (iii) use commercially reasonable efforts to preserve substantially intact its employees and its business organization. Without limiting the foregoing, and as necessary to effect the proposals contained an extension thereof, except as set forth in Section 5.1 of the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule or as permitted by any other provision of this Agreement, the Company shall not (unless required by applicable Law), and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned): (a) amend or otherwise change the certificate of incorporation or bylaws or equivalent organizational documents (whether by merger, consolidation or otherwise) of the Company or any Company Subsidiary; (b) issue, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of, or other Equity Interests in, the Company or any Company Subsidiary of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by Contract right), of the Company or any Company Subsidiary, other than the issuance of Shares (i) upon the vesting of Company RSUs or the exercise of Company Options or Company Warrants outstanding as of the date hereof in accordance with their terms, or (ii) pursuant to the ESPP and in accordance with the terms of this Agreement; (c) sell, pledge, dispose of of, transfer, lease, license, guarantee or encumber any material property or assets of its assets; the Company or any Company Subsidiary, except (i) pursuant to existing contracts or commitments, (ii) amend pursuant to the sale, purchase or propose to amend its Certificate licensing of Incorporation inventory, raw materials, equipment, goods, or Bylaws; other supplies in the ordinary course of business or (iii) split, combine or reclassify any outstanding shares licenses in the ordinary course of its capital stock, or business consistent with past practice; (d) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iva combination thereof) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; its capital stock (c) Except as contemplated other than dividends paid by this Agreement, and those items contained in a wholly-owned Company Subsidiary to the Company Proxy Statement or another wholly-owned Company Subsidiary) or enter into any agreement with respect to be filedthe voting or registration of its capital stock; (e) reclassify, combine, split, subdivide or amend the Company shall not (i) issue, sell, pledge or dispose terms of, or agree to issueredeem, sellpurchase or otherwise acquire, pledge directly or dispose ofindirectly, any additional shares of its capital stock, other Equity Interests or any other securities; (f) merge or consolidate the Company or any Company Subsidiary with any Person or adopt a plan or agreement of, or resolutions providing for or authorizing complete or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization of the Company or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; Company Subsidiary; (iig) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any corporationinterest in any Person or any division thereof or any assets, partnership other than acquisitions of assets (including, without limitation, the purchase of inventory, raw materials, equipment, goods, or other business organization supplies) in the ordinary course of business, acquire or division license from any Person any Intellectual Property rights and any other acquisitions for consideration that is individually not in excess of $50,000, or in the material assets thereof; aggregate not in excess of $100,000; (iiih) incur any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any indebtedness Person (other than a wholly-owned Company Subsidiary) for borrowed money; (i) make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Company Subsidiary) in excess of $100,000 in the aggregate; (j) terminate, cancel, or amend or waive any Company Material Contract, or enter into or amend any Contract that, if existing on the date hereof, would be a Company Material Contract, in each case other than in the ordinary course of business; (k) make or authorize any capital expenditure in excess of the Company’s capital expenditure budget attached to othersSection 5.1(k) of the Company Disclosure Schedules, other than capital expenditures that are not in excess of $25,000, individually, or $100,000 in the aggregate; (l) except to the extent required by (i) applicable Law, (ii) the existing terms of any Company Benefit Plan or (iii) contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement: (A) increase the compensation, bonus or benefits payable or to become payable to its directors, officers or employees; or (ivB) grant any additional rights to severance or termination pay to, or enter into any severance agreement with, any director, officer or employee of the Company or any Company Subsidiary, or establish, adopt, enter into or amend any Company Benefit Plan, collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, termination or severance plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; or (C) take any action to amend or waive any performance or vesting criteria or accelerate any rights or benefits or take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan or make any Person a beneficiary of any retention plan under which such Person is not as of the date of this Agreement a beneficiary which would entitle such Person to vesting, acceleration or any other right as a consequence of consummation of the transactions contemplated by this Agreement; (m) make, extend or forgive any loans to directors, officers, employees or any of their respective affiliates; (n) make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (o) subject to Section 5.13, initiate, commence, compromise, settle, agree to settle or otherwise resolve any Proceeding; (p) with respect to the Company and each of the Company Subsidiaries (A) make, change or rescind any material Tax election or settle or compromise any material Tax liability or refund, (B) change any material Tax accounting period or method or file any material amended Tax Return, (C) consent to an extension or waiver of the limitations period for the assessment of Taxes, (D) take any action outside of the ordinary course of business if taking such action would result in a material tax liability for the Company or any of its subsidiaries, or (E) change the Tax residency of the Company or any of the Company Subsidiaries; (q) write up, write down or write off the book value of any assets, except for depreciation, amortization and physical inventory procedures in accordance with GAAP consistently applied; (r) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (i) 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 the Company included in the Filed Company SEC Documents or incurred in the ordinary course of business consistent with past practice or (ii) the payment, discharge or satisfaction of liabilities in connection with the transactions contemplated by this Agreement, (iii) prepay or cancel any material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value; (s) sell, transfer, assign, license, encumber or otherwise dispose of to any third party any Owned Intellectual Property (including pursuant to a sale-leaseback transaction or securitization), or otherwise amend, modify or waive any rights to, any Owned Intellectual Property; (t) make any change in staffing levels with respect to the Company or any of its subsidiaries; (u) enter into a new line of business or modify make any contractmaterial change in the line of business in which it engages as of the date of this Agreement; (v) enter into any Contract or agree to any exclusivity, agreementnon-competition, most favored nation, or similar provision or covenant that purports to limit, curtail or restrict the kinds of businesses in which the Company, any Company Subsidiary or any of its existing or future affiliates may conduct their respective businesses, or the Persons with whom the Company, any Company Subsidiary or any of its existing or future affiliates can compete or to whom the Company, any Company Subsidiary or any of its existing or future affiliates can sell products or deliver services, or the acquisition of any business or pursuant to which any benefit or right would be required to be given or lost as a result of so competing or engaging, or which would have any such effect on Parent or any of its affiliates after the consummation of the Merger or the Closing Date; (w) cancel or terminate or allow to lapse without commercially reasonably substitute policy therefor, or amend in any material respect or enter into, any material insurance policy, other than the renewal of existing insurance policies or enter into commercial reasonable substitute policies therefor; (x) abandon the prosecution of or fail to maintain any Registered Intellectual Property; or (y) authorize or enter into any Contract or otherwise make any commitment or arrangement with respect to do any of the foregoing; (d) foregoing other than in the Company shall notify ADS promptly ordinary course of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andbusiness.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Effective Time, except as set forth in Section 5.1 of the Company Disclosure Schedule or as permitted by any other provision of this Agreement, unless Parent shall otherwise agree in writing (which agreement shall not be unreasonably withheld, delayed or conditioned), the Company will, and will cause each Company Subsidiary to, (i) conduct its business and operations only in the usual and ordinary course of business; , (bii) Except as contemplated by this Agreementuse commercially reasonable efforts to preserve substantially intact the goodwill and current relationships of the Company and each Company Subsidiary with significant customers, significant suppliers and other Persons with which the Company or any Company Subsidiary has significant business relations and (iii) use commercially reasonable efforts to preserve substantially intact its business organization. Without limiting the foregoing, and as necessary to effect the proposals contained an extension thereof, except as set forth in Section 5.1 of the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule or as permitted by any other provision of this Agreement, the Company shall not (unless required by applicable Law), and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned): (a) amend or otherwise change (or permit to be amended or changed) the certificate of incorporation or bylaws or equivalent organizational documents of the Company or any Company Subsidiary; (b) issue, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of, or other Equity Interests in, the Company or any Company Subsidiary of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including any such interest represented by Contract right), of the Company or any Company Subsidiary, other than (i) the issuance of Shares upon the vesting of Company RSUs or the exercise of Company Options, in each case, that are outstanding as of the date hereof, and then only in accordance with their terms as in effect as of the date hereof, (ii) the award of Company Options, Company RSUs, Restricted Stock granted pursuant to the Company Stock Option Plans in the ordinary course of business consistent with past practice, or (iii) pursuant to the ESPP, provided, however, that the number of shares of Company Common Stock (including, for the avoidance of doubt, Restricted Stock) issued, or issuable pursuant to Company Options and/or Company RSUs, pursuant to clauses (ii) and (iii) shall not exceed 62,250 in the aggregate; (c) sell, pledge, dispose of of, transfer, lease, license, guarantee or encumber any material property or assets of its assets; the Company or any Company Subsidiary, except (i) pursuant to existing contracts or commitments disclosed to Parent, (ii) amend pursuant to the sale, purchase or propose to amend its Certificate licensing of Incorporation inventory, raw materials, equipment, goods, or Bylaws; other supplies in the ordinary course of business consistent with past practice or (iii) split, combine or reclassify any outstanding shares licenses in the ordinary course of its capital stock, or business consistent with past practice; (d) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iva combination thereof) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the foregoingCompany or another wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting or registration of its capital stock; (e) reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or any other securities; (f) merge or consolidate the Company or any Company Subsidiary with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary; (g) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any Person or any division thereof or any assets, other than acquisitions of assets (including the purchase of inventory, raw materials, equipment, goods, or other supplies) in the ordinary course of business and any other acquisitions for consideration that is individually not in excess of $100,000, or in the aggregate not in excess of $300,000; (h) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than a wholly-owned Company Subsidiary) for borrowed money; (i) make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Company Subsidiary) in excess of $75,000 in the aggregate; (j) terminate, cancel, or amend or waive any Company Material Contract, or enter into or amend any Contract that, if existing on the date hereof, would be a Company Material Contract, in each case other than in the ordinary course of business; (k) make or authorize any capital expenditure in excess of the Company’s capital expenditure budget as disclosed to Parent prior to the date hereof, other than capital expenditures that are not, in the aggregate, in excess of $500,000; (l) except to the extent required by (i) applicable Law, (ii) the existing terms of any Company Benefit Plan or (iii) contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement: (A) increase the compensation or benefits payable or to become payable (including the acceleration of vesting of such compensation and/or benefits) to its current or former directors, officers or employees (except for increases in the ordinary course of business consistent with past practice in benefits, salaries or wages of employees of the Company or any Company Subsidiary); (cB) Except grant any additional rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or employee of the Company or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by the terms of a collective bargaining agreement in existence on the date of this Agreement, (C) except as contemplated by this Agreement, and those items contained grant, accelerate the vesting of, or the lapsing of restrictions with respect to, any stock options or other stock-based compensation, (D) fail to make any material required contributions under any Company Benefit Plan, or (E) except as contemplated by clause (B) of this Section 5.1(l), hire or terminate the employment, or modify the contractual relationship of, any officer, employee or consultant of the Company or any Company Subsidiary, other than hirings or terminations in the Company Proxy Statement ordinary course of business consistent with past practice; (m) forgive any loans to be fileddirectors, officers, employees or any of their respective affiliates; (n) make any material change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (o) compromise, settle or agree to settle any suit, action, claim, proceeding or investigation (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby) other than compromises, settlements or agreements in the ordinary course of business that involve only the payment of monetary damages not in excess of $25,000 individually or $50,000 in the aggregate, in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company shall not or any Company Subsidiary; (p) (i) issue, sell, pledge make any material tax election or dispose of, settle or agree to issue, sell, pledge or dispose of, compromise any additional shares of, material liability for Taxes or any optionsmaterial claim for a Tax refund, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire except as required by Law or to conform with a change permitted by Section 5.1(o), make any change (by mergeror file any such change) in any material method of Tax accounting, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur file any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; amended Tax Return involving a material amount of additional Taxes (except as required by Law) or (iv) waive or extend the statute of limitations in respect of the assessment or determination of material Taxes (other than pursuant to extensions of time to file Tax Returns); (q) write up, write down or write off the net book value of any assets, in the aggregate, in excess of $60,000, except for depreciation and amortization in accordance with GAAP consistently applied; (r) pre-pay any long-term debt; (s) enter into any material joint venture or modify material statutory partnership; (t) effectuate a “plant closing” or “mass layoff,” as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988; (u) create any contract, agreement, Subsidiary; or (v) authorize or enter into any Contract or otherwise make any commitment or arrangement with respect to do any of the foregoing; (d) foregoing other than in the Company shall notify ADS promptly ordinary course of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andbusiness.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to Halcyon agree that, between the Closing Date: (a) date of this Agreement and the Closing, except as expressly contemplated by this Agreement or as set forth in Section 5.1 of the Disclosure Schedule, the business of the Company shall conduct its business and operations only be conducted in the usual and ordinary course of business; business and in a manner consistent with past practice, and the Company shall use its reasonable efforts (bA) to preserve substantially intact the business organization of the Company, (B) to preserve the assets and properties of the Company in good repair and condition, (C) to maintain and protect rights in the Owned Intellectual Property, and (D) to preserve the current relationships of the Company with customers, suppliers, licensees, licensors, developers, employees and independent contractors, in each case in the ordinary course of business and in a manner consistent with past practice. Except as expressly contemplated by any other provision of this AgreementAgreement or as set forth in Section 5.1 of the Disclosure Schedule, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), Seller Parties agree that the Company shall not directly or indirectly between the date of this Agreement and the Closing, do any of the following: following without the prior written consent of Purchaser: (ia) amend or otherwise change its Governing Documents; (b) issue, sell, pledge, dispose of, grant, encumber, or otherwise subject to any Lien, or authorize such issuance, sale, pledge, disposition, grant or encumbrance of or encumber subjection to such Lien: (i) any Units or other securities of its assets; the Company, or any options, warrants, convertible securities or other rights of any kind to acquire any Units or other securities (including any phantom or profit interest) of the Company, or (ii) amend any properties or propose to amend its Certificate other assets of Incorporation or Bylaws; the Company other than the sales of any Product in the ordinary course of business and in a manner consistent with past practice; (iiic) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeemotherwise, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its Units; (d) reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire, directly or indirectly, any capital stock of the foregoing; Company; (ce) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (including by merger, consolidation, consolidation or acquisition of stock or assets or otherwiseany other business combination) any corporation, partnership or partnership, other business organization (or any division thereof) or any property or asset, except assets in the material assets thereofordinary course of business and in a manner consistent with past practice; (ii) authorize, or make any commitment with respect to, any capital expenditure; (iii) incur acquire, enter into or extend any indebtedness for borrowed moneyoption to acquire, issue or exercise an option to acquire, real property or commence construction of, or enter into any debt securities Contract to develop or guarantee construct, any indebtedness to othersreal estate projects; or (iv) enter into any material new line of business; or modify (v) make any contractmaterial investments in Persons; (f) increase or accelerate (including acceleration of funding) the compensation payable or to become payable or the benefits provided to its current or former directors, officers, consultants, managers or employees, except for increases in compensation in the ordinary course of business and in a manner consistent with past practice; (ii) grant any retention, severance or termination pay to, or enter into any employment, consulting, management, bonus, change of control, severance or similar agreement with, any current or former director, officer, consultant, manager or other employee of the Company; (iii) establish, adopt, enter into, terminate or amend any Plan or establish, adopt or enter into any plan, agreement, program, policy, trust, fund or other arrangement that would be a Plan if it were in existence as of the date of this Agreement for the benefit of any current or former director, officer, consultant, manager or employee except as required by Law; (iv) loan or advance any money or other property to any current or former director, officer, consultant, manager or employee of the Company; or (v) grant any equity or equity based awards; (g) change any of the material accounting policies, practices or procedures used by the Company as of the date hereof, except as may be required as a result of a change in applicable Law or in GAAP; (h) make any change (or file for such change) in any method of Tax accounting; (i) make, change, revoke or rescind any Tax election, file any amended Tax Return, enter into any closing agreement relating to Taxes, waive or extend the statute of limitations in respect of Taxes, settle or compromise any claim or dispute relating to Taxes, surrender any right to claim for a Tax refund or file any Tax Returns inconsistently with past practice; (j) pay, discharge, waive, settle or satisfy any claim, liability or obligation, other than the payment, discharge, waiver, settlement or satisfaction of accounts payable in the ordinary course of business and consistent with past practice; (k) waive, release, assign, settle or compromise any pending or threatened Legal Proceeding (i) requiring payment by the Company in excess of $10,000 individually or $20,000 in the aggregate, unless such payments are fully covered by the Company’s insurance policies, or (ii) which adversely affects in any material respect the ability of the Company to conduct its business in a manner consistent with past practice; (l) enter into, materially amend or modify or consent to the termination of (other than a termination in accordance with its terms) any Included Contract, or (ii) amend, waive, modify or consent to the termination of (other than a termination in accordance with its terms) the Company’s rights thereunder; (m) make any expenditure in connection with any advertising or marketing, other than in the ordinary course of business and consistent with past practice; (n) fail to maintain in full force and effect the existing insurance policies covering the Company and its properties, assets and business; (o) effectuate a “plant closing” or “mass layoff,” as those terms are defined in the WARN Act; (p) form a Company Subsidiary; (q) except as required by this Agreement, repurchase, repay or incur any Indebtedness, other than ordinary course trade payables; (r) amend, modify or waive any term of any outstanding security of the Company; (s) enter into any labor or collective bargaining agreement, memorandum of understanding, grievance settlement or any other agreement or commitment to or arrangement relating to any labor union, except as required by Law; (t) adopt or put into effect a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company other than as contemplated hereunder; (u) take or agree to take any action that would or is reasonably likely to result in any of the representations and warranties of the Company set forth in this Agreement being untrue or in any of the conditions hereunder not being satisfied; (v) cause or permit any of the Real Property Leases or any agreement entered into in connection therewith, including any non-disturbance agreement, to be amended, modified, extended, renewed or terminated, nor shall the Company enter into any agreement in connection with the Real Property Leases (including agreements for or with respect to improvements or alterations and including the acceptance of punchlists), or into any new lease, sublease, license or other agreement for the use or occupancy of any real property; (w) amend the Cycle Redemption Agreement; or (x) authorize, commit or agree to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Closing, except as set forth in Section 5.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, except as provided below, the business of the Company shall conduct its business be conducted in, and operations only in the usual and Company shall not take any action except in, the ordinary course of businessbusiness consistent with past practice; (b) and the Company shall use its reasonable efforts to preserve substantially intact the business organization of the Company, to keep available the services of the current officers, employees and consultants of the Company and to preserve the current relationships of the Company with customers, suppliers and other persons with which the Company has significant business relations. Except as contemplated by this Agreement, Agreement and as necessary to effect Section 5.01 of the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule, the Company shall not not, between the date of this Agreement and the Closing, directly or indirectly do indirectly, do, or propose to do, any of the following: following without the prior written consent of the Investor: (i) sell, pledge, dispose of or encumber any of its assets; (iia) amend or propose to amend otherwise change its Certificate of Incorporation or Bylaws; ; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i1) issue, sell, pledge or pledge, dispose of, grant, encumber, or agree to issueauthorize the issuance, sellsale, pledge pledge, disposition, grant or dispose encumbrance of, any additional shares ofof any class of capital stock or other Equity Interests in or of the Company, or any options, warrants, conversion privileges convertible securities or other rights of any kind to acquire any shares of such capital stock or other Equity Interests, or any other ownership interest (including any phantom interest or other interest represented by contract), of the Company (except for the issuance of shares of Company Common Stock issuable pursuant to the terms of the Company Stock Option Plan, as in effect as of the date of this Agreement) or (2) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets of the Company; (c) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock; stock or other Equity Interests; (iid) (1) acquire (including by merger, consolidation, or acquisition of stock or assets or otherwiseany other business combination) any corporation, partnership or partnership, other business organization or any division thereof or the material assets thereof; (iii2) incur any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any indebtedness person, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (e) adopt, or propose to others; adopt, or maintain any shareholders’ rights plan, “poison pill” or other similar plan or agreement, unless the Investor is exempted from the provisions of such shareholders’ rights plan, “poison pill” or other similar plan or agreement; (f) to the extent required or applicable, take any action to exempt or make not subject to (1) the provisions of Section 203 of the DGCL or (iv2) any other state takeover Law or state Law that purports to limit or restrict business combinations or the ability to acquire or vote shares, any person (other than the Investor or any of its affiliates) or any action taken thereby, which person or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom; or (g) announce an intention, enter into any agreement or modify any contractotherwise make a commitment, agreement, commitment or arrangement with respect to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date: (a) The Company agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is validly terminated pursuant to Section 9.1, except (i) as set forth in Section 6.1(a) of the Company shall conduct its business and operations only in the usual and ordinary course of business; Disclosure Letter, (bii) Except as contemplated expressly permitted or required by this Agreement, (iii) as required by Law or (iv) as consented to in writing (including via email) by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall, and as necessary to effect the proposals contained shall cause each Company Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice, including by using commercially reasonable efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers and other Persons with whom it and they have material business relations. (b) Without limiting the generality of the foregoing, except as set forth in Section 6.1(b) of the Company Proxy Statement to Disclosure Letter or as otherwise required by this Agreement, from the date of this Agreement until the Effective Time, unless Parent otherwise consents in writing (which consent shall not be filed (the “Company Proxy Statement”unreasonably withheld, delayed or conditioned), the Company shall not directly or indirectly do not, nor shall the Company permit any of the following: its Subsidiaries to: (i) authorize, declare or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, shares or other) or enter into any agreement with respect to the voting of its capital stock, except dividends or distributions by any Company Subsidiary to the Company or to any wholly owned Company Subsidiary; (ii) split, combine, reduce or reclassify any of its capital stock, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock, except for any such transaction by a wholly owned Company Subsidiary which remains a wholly owned Company Subsidiary after consummation of such transaction; (iii) except as provided in this Agreement, required by applicable Law or any Company Benefit Plan in effect on the date hereof, (A) increase the compensation or benefits payable or to become payable to, or for the benefit of, any of its current or former directors, officers, employees or other service providers who are natural persons, (B) enter into, amend or modify any employment, severance, change-in-control, termination or retention agreement with, or for the benefit of, any of its current or former directors, officers, employees or other service providers who are natural persons, (C) establish, adopt, enter into, amend or terminate any Company Benefit Plan, (D) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable to, or for the benefit of, any of its directors, employees or other service providers who are natural persons, other than in the ordinary course of business consistent with past practice, (E) establish, enter into, adopt or amend any works council, collective bargaining or similar labor-related agreement or make any commitment to incur any liability to any labor organization, except as required by applicable Law, (F) hire, elect, appoint or terminate any director or officer, or (G) except as publicly announced prior to the date hereof, announce, implement or effect any material reduction in labor force, lay-off, early retirement program or other effort concerning termination of employment of employees of the Company or any Company Subsidiary (other than routine employee terminations in the ordinary course of business); (iv) make any material change in financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, applicable Law or SEC policy; (v) make, change or rescind any material election relating to Taxes, change any material method of Tax accounting, or enter into any Tax allocation, sharing or indemnity agreement or closing agreement relating to, or consent to any extension or waiver of the limitations period applicable to any claim or assessment in respect of, Taxes; (vi) enter into agreements providing for, or consummate, any acquisitions of an equity interest in or a material portion of the assets of any Person or any business or division thereof, or any mergers, consolidations or business combinations, except for transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries, or enter into any new line of business that is material to the Company and the Company Subsidiaries, taken as a whole; (vii) amend the Company Governing Documents or equivalent organizational documents of any Company Subsidiary or restructure, reorganize, dissolve or liquidate the Company or any Company Subsidiary; (viii) issue, deliver, grant, sell, pledge, dispose of or encumber encumber, or authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of in its capital stock, or declare, set aside or pay any dividend voting securities or other distribution payable equity interest in cashthe Company or any Company Subsidiary or any securities convertible into or exchangeable for any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares in its capital stock, property voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units or take any action to cause to be exercisable any otherwise unexercisable Company Equity Award (except as otherwise provided by the express terms of any Company Equity Award outstanding on the date hereof), other than (i) issuances of Company Shares in respect of any exercise of Company Options outstanding on the date hereof or the vesting or settlement of Company Equity Awards outstanding on the date hereof, (ii) issuances or grants of Company Equity Awards that, with respect to shares each such Company Equity Award, cover 25% of its capital stock; the number of Company Shares that would be covered thereby if made in the ordinary course of business consistent with past practice (provided that in any event the aggregate value of the Company Shares covered by all such issuances or grants (assuming maximum performance where applicable) shall not exceed $10,000,000 based on the fair market value of a Company Share on the grant date applicable to the applicable Company Equity Award and the Company and the Company Subsidiaries shall not commence an offering period or issue or grant purchase rights under the Company ESPP), (iii) sales of Company Shares pursuant to the exercise of Company Options if necessary to effectuate an optionee direction upon exercise or pursuant to the settlement of Company Equity Awards in order to satisfy Tax withholding obligations, or (iv) redeemtransactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries; (ix) directly or indirectly, purchase purchase, redeem or otherwise acquire any shares in its capital or offer other equity interests or any rights, warrants or options to acquire any such shares in its capital or equity interests, except for (A) acquisitions of Company Shares tendered by holders of Company Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (B) the acquisition by the Company of Company Equity Awards in connection with the forfeiture of such awards and (C) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries; (x) redeem, repurchase, prepay (other than prepayments of revolving loans, including borrowings under the Credit Agreement), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (i) Indebtedness for borrowed money at any time incurred by the Company or any of the Company Subsidiaries under the Credit Agreement, and (ii) the making, incurrence or repayment of intercompany Indebtedness; provided that nothing contained herein shall prohibit the Company and the Company Subsidiaries from making guarantees or obtaining letters of credit or surety bonds in the ordinary course of business consistent with past practice (including in respect of obligations under hedging transactions incurred in the ordinary course of business), drawing on existing working capital credit facilities, including the Credit Agreement, or engaging in hedging transactions in the ordinary course of business; (xi) make any loans, advances or capital contributions to any other Person, except for loans among the Company and the Company Subsidiaries or among the Company Subsidiaries; (xii) sell, lease, license, transfer, exchange, swap, abandon, allow to lapse, or otherwise dispose of, or subject to any Lien (other than Permitted Liens), any of its capital stock Intellectual Property or other securities; material properties or assets (vincluding shares in the capital of its or the Company Subsidiaries), except (A) create pursuant to existing agreements in effect prior to the execution of this Agreement, (B) sales of inventory, or dispositions of obsolete or worthless equipment, in the ordinary course of business consistent with past practice, (C) such transactions with neither a fair market value of the assets or properties nor an aggregate purchase price that exceeds $500,000 individually or $1,000,000 in the aggregate and (D) for transactions among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries; (xiii) discharge, pay, compromise or settle any subsidiaries; claim, litigation, investigation or proceeding, in each case made or pending by or against the Company or any of the Company Subsidiaries (viincluding any claim for Taxes or any compromise or settlement with respect to matters in which any of them is a plaintiff), or any of their officers and directors in their capacities as such, other than the compromise or settlement of claims, litigation, investigations or proceedings that: (A) are for an amount (in excess of insurance proceeds) not to exceed, for any such compromise or settlement, either (x) $100,000 individually or $1,000,000 in the aggregate, or (y) amounts reserved for the applicable matter on the balance sheet of the Company as of September 27, 2015, (B) does not impose any equitable or injunctive relief or actions that would have an adverse effect on the operations of the Company and the Company Subsidiaries and (C) does not provide for the license of any Intellectual Property rights; (xiv) enter into, as tenant or subtenant, any lease of real property, under which the rent to be charged exceeds $500,000 for any twelve (12)-month period (other than any renewals of Leased Real Property); (xv) except (A) in the ordinary course of business consistent with the past practice, or (B) in accordance with the Company’s budget described on Section 6.1(b)(xiv) of the Company Disclosure Letter, make any new capital expenditure or expenditures, or commit to do so; (xvi) enter into any Contracts (A) under which the Company or modify any contractCompany Subsidiary grants or agrees to grant to any third party any assignment, agreementlicense, commitment release, immunity or arrangement other right with respect to any material Intellectual Property, (B) under which the Company or any Company Subsidiary establishes with any third party a joint venture, strategic relationship, or partnership pursuant to which the Company or Company Subsidiary agrees to develop or create (whether jointly or individually) any material Intellectual Property, products or services; or (C) that will cause or require (or purport to cause or require) the Surviving Corporation or Parent to (1) grant to any third party any material license, covenant not to xxx, immunity or other right with respect to or under any of the foregoingIntellectual Property; or (c2) Except as contemplated be obligated to pay any royalties or other amounts to any third party (other than, with respect to the Surviving Corporation only, in connection with non-exclusive licenses in the ordinary course of business consistent with past practice); (xvii) enter into any lease, sublease or license for real property of the Company or any Company Subsidiary or material operating lease; (xviii) terminate, cancel, amend or modify any insurance coverage policy maintained by the Company or any Company Subsidiary that is not simultaneously replaced by a comparable amount of insurance coverage; (xix) except for transactions in the ordinary course of business consistent with past practice (including, for the avoidance of doubt, hedging transactions in the ordinary course of business) or in connection with any transaction to the extent specifically permitted by any other subclause of this AgreementSection 6.1(b), (A) enter into any Contract that would, if entered into prior to the date hereof, be a Material Contract, (B) materially modify, materially amend or terminate any Material Contract or waive, release, terminate, amend, renew or assign any material rights or claims of the Company or a Company Subsidiary thereunder; (xx) commence an offering period or issue or grant purchase rights under the Company ESPP or any similar plan; or (xxi) announce any intention or agree, in writing or otherwise, to take any of the foregoing actions. Parent and those items Acquisition Sub acknowledge and agree that: (i) nothing contained in this Agreement shall give Parent or Acquisition Sub, directly or indirectly, the Company Proxy Statement right to be filedcontrol or direct the Company’s operations prior to the Closing, (ii) prior to the Closing, the Company shall not (i) issueexercise, sellconsistent with the terms and conditions of this Agreement, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, complete control and supervision over its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or and the material assets thereof; Company Subsidiaries’ operations and (iii) incur any indebtedness for borrowed moneynotwithstanding anything to the contrary set forth in this Agreement, issue any debt securities no consent of Parent or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement Acquisition Sub shall be required with respect to any matter set forth in Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent could violate any applicable law. In addition, for the foregoing; (d) sake of clarity, Parent does not have the Company shall notify ADS promptly of right to direct and control the litigation, including any material adverse event or circumstance affecting ADS (including the filing of any material litigation against defenses, which right remains with the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the applicable Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andSubsidiary, as appropriate.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to From the date hereof until the earlier of the Closing Date: Date and the termination of this Agreement in accordance with Article 7, except (1) as expressly contemplated hereunder, (2) as required by applicable Law, Order or to comply with any notice from any Governmental Authority, (3) if Parent shall have consented in advance in writing (such consent not to be unreasonably withheld, conditioned or delayed), (4) for any Permitted Actions, so long as the Company promptly notifies Parent of such actions and considers any reasonable requests of Parent with respect thereto or (5) as set forth on Section 5.1 of the Company Disclosure Schedule, the Company shall, and shall cause its Subsidiaries, to use reasonable best efforts to (x) conduct its operations in the ordinary course of business and (y) preserve the goodwill and organization of the Company and its Subsidiaries and the Company’s and its Subsidiaries’ relationships with lenders, customers, suppliers, vendors, officers, employees, consultants and other Persons having business relations with the Company and its Subsidiaries, and the Company shall not, and shall cause its Subsidiaries not to: (a) the Company shall conduct its business and operations only in the usual and ordinary course of business; (b) Except as contemplated by this Agreementissue, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)deliver, the Company shall not directly or indirectly do any of the following: (i) sell, distribute, assign, transfer, grant, pledge, hypothecate, dispose of or otherwise encumber any shares of capital stock of, or other Equity Interests in, the Company or any of its assets; (ii) amend Subsidiaries or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockclass, or declaresecurities convertible into, set aside or pay any dividend exchangeable or other distribution payable in cashexercisable for, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its such capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares ofEquity Interests, or any options, warrants, conversion privileges warrants or other rights of any kind to acquire any shares ofof such capital stock or other Equity Interests or such convertible or exchangeable securities of the Company or any of its Subsidiaries, other than the issuance of Shares upon the settlement of Company Awards outstanding as of the date hereof in accordance with their terms; (b) merge or consolidate the Company or any of its capital stock; Subsidiaries with any Person; (iic) acquire any material assets or any other Person or material business of any other Person (whether by merger, merger or consolidation, acquisition of stock or assets or by formation of a joint venture or otherwise) or make any corporationinvestment in any Person, partnership other than (A) purchases of equipment, inventory or other assets in the ordinary course of business organization and (B) an investment in any wholly owned Subsidiary of the Company; (d) effect any recapitalization, reclassification, in-kind dividend, equity split or division similar change in capitalization; (e) amend or otherwise change their certificates or articles of incorporation, bylaws or limited liability company agreements (or equivalent organizational documents) of the Company or any of its Subsidiaries; (f) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock, or any other securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the material occurrence of certain events) into or exchangeable for any shares of its capital stock, except for (i) any dividends or distributions from a wholly owned Subsidiary to another wholly owned Subsidiary or the Company or (ii) the acceptance of Shares, or withholding of Shares otherwise deliverable, to satisfy withholding Taxes incurred in connection with the exercise, vesting and/or settlement of Company Awards; (g) sell, dispose, assign, transfer, mortgage, pledge, lease, license, sublicense or subject to any Lien, charge or otherwise encumber all or any portion of its assets, except (i) Permitted Liens, (ii) sales in the ordinary course of business and dispositions of assets thereof; that are obsolete, worn out, surplus or no longer used and useful in the conduct of the business of the Company and its Subsidiaries, (iii) any factoring arrangements entered into in the ordinary course of business, (iv) non-exclusive licenses of Intellectual Property in the ordinary course of business, or (v) any such transactions by and among the Company and its wholly owned Subsidiaries entered into in the ordinary course of business; (h) abandon or permit to lapse any material Company Intellectual Property outside of the ordinary course of business; (i) enter into any Affiliate Contracts; (j) except as permitted by Section 5.3, disclose any material Trade Secrets or material Confidential Information of the Company and its Subsidiaries to any Person, other than in the ordinary course of business, to Persons who are under a contractual, legal, or ethical obligation to maintain the confidentiality of such information; (k) make any capital investment in, or any capital contribution or loan or advance to, or guaranty for the benefit of, any Person that (i) is not a wholly owned Subsidiary (except as required by the organizational documents of the Company’s Subsidiaries in effect as of the date hereof) or (ii) is a wholly owned Subsidiary (except in the ordinary course of business); (l) except pursuant to the planned equipment purchase orders and other planned investments set forth in Section 5.1(l) of the Company Disclosure Schedule, make any capital expenditures or commitments in excess of $1,000,000 in the aggregate (with any capital expenditures for the purchase of tractors and trailers netted against the proceeds from dispositions of tractors and trailers); (m) except pursuant to the planned acquisition of replacement capital assets set forth in Section 5.1(m) of the Company Disclosure Schedule, make any disposition of capital assets greater than $200,000 in the aggregate; (n) incur any indebtedness indebtedness, except (i) accounts payable in the ordinary course of business, (ii) pursuant to the acquisition and disposition plan set forth in Section 5.1(l) of the Company Disclosure Schedule and (iii) draws under the line of credit in the ordinary course of business; (o) except to the extent required under any Company Benefit Plan set forth on Section 3.11(a) of the Company Disclosure Schedule in effect as of the date of this Agreement, (i) grant to any current or former director, independent contractor, consultant, employee or officer of the Company or its Subsidiaries any increase in compensation, bonus or fringe or other benefits or grant any type of compensation or benefit to any such Person not previously receiving or entitled to receive such compensation, other than increases in base salary for borrowed moneyCompany employees with annual base compensation less than $150,000 in the ordinary course of business, issue as part of the Company’s annual merit review process, provided that such increases shall not exceed 5% in the aggregate (relative to the aggregate base salary of the individuals permitted to receive an increase under this item), (ii) grant to any debt securities Person any severance, retention, change in control or guarantee termination compensation or benefits or any indebtedness increase therein, (iii) establish, enter into or adopt any Company Benefit Plan or amend or modify any Company Benefit Plan, other than any such amendments to others; existing Company Benefit Plans that are group health insurance plans or tax-qualified defined contribution retirement plans that are in the ordinary course of business and which do not materially increase, individually or in the aggregate, the annual cost to the Company and its Subsidiaries of the applicable Company Benefit Plan, or (iv) take any action to cause or accelerate the payment, funding, right to payment or vesting of any compensation or benefits under any existing Company Benefit Plan, other than as expressly provided pursuant to this Agreement. Notwithstanding the foregoing, the Company may pay performance-based bonuses to the extent earned pursuant to the Company’s the 2023 Bonus Plan in the ordinary course of business consistent with past practice; (p) hire any Person or terminate the employment or services of any employee (other than “for cause”), other than the hiring or terminating of employees with annual base salary or base wages less than $150,000 (in the ordinary course of business); (q) make any material change in the financial accounting policies or procedures used by the Company or any of its Subsidiaries or any of the methods of reporting income, deductions or other items for financial accounting purposes used by the Company or any of its Subsidiaries, except as required by GAAP or applicable Law; (r) make, change or revoke any material Tax election, adopt or change any Tax accounting period, adopt or change any Tax accounting method, enter into any “closing agreement” within the meaning of Section 7121 of the Code (or modify any contractcorresponding or similar provision of state, agreementlocal or non-U.S. Law) with a Governmental Entity with respect to Taxes, commitment settle any Tax claim, audit, assessment or arrangement Proceeding with respect to a material amount of Taxes, agree to an extension or waiver of the statute of limitations with respect to a material Tax liability or surrender (other than pursuant to the expiration of an applicable statute of limitations) any right to claim a refund, offset or other reduction of a material amount of Taxes; (s) implement any “mass layoffs” that would reasonably be expected to trigger notification requirements pursuant to the WARN (as such terms are defined by the WARN); (t) settle, release, waive or compromise any existing, pending or threatened Proceeding if such settlement, release, waiver or compromise (i) with respect to the payment of monetary damages, involves the payment of monetary damages payable by the Company in excess of the Company’s self-insured retention limits, or (ii) with respect to any non-monetary terms and conditions therein, imposes or requires actions that would or would be reasonably expected to be material to the Company and its Subsidiaries, taken as a whole, provided however that with respect to the clause (i), the Company will give written notice to Parent if it intends to settle any claim which exceeds $100,000 individually or $200,000 in the aggregate. For the avoidance of doubt, consent shall not be required for any settlement paid by an insurance company in the ordinary course of business; (u) (i) terminate or amend in a manner materially adverse to the Company or any of its Subsidiaries, any Company Material Contract, Leased Real Property Lease or Landlord Lease other than (x) any renewal, amendment or expiration in the ordinary course of business of such Company Material Contract, Leased Real Property Lease or Landlord Lease and (y) any termination due to a counterparty’s default thereunder or breach thereof, in the case of either clause (x) or (y), in accordance with the terms of such Company Material Contract, Leased Real Property Lease or Landlord Lease, as applicable, and (in the case of renewals pursuant to clause (x), on substantially the same terms (subject to customary increases in rent)), (ii) enter into any Contract that, if entered into prior to the date of this Agreement, would be a Company Material Contract (other than Contracts to provide services to customers entered into in the ordinary course), or enter into any Leased Real Property Lease or Landlord Lease, or (iii) waive any right under or release, settle or compromise any claim under any Company Material Contract, Leased Real Property Lease or Landlord Lease in a manner that is materially adverse to the Company and its Subsidiaries, taken as a whole; (i) modify, extend, or enter into any collective bargaining agreement or other Contract with any labor union, labor organization, works council or group of employees or (ii) recognize or certify any labor union, labor organization, works council, or group of employees of the foregoingCompany or its Subsidiaries as the bargaining representative for any employees of the Company or its Subsidiaries; (w) enter into a plan or agreement of complete or partial liquidation, dissolution, consolidation, restructuring or other reorganization of the Company or any of its Subsidiaries (except for the liquidation or dissolution of any dormant Subsidiary) and or enter into a new line of business within the transportation and logistics industry; (x) adopt a rights plan, “poison pill” or similar agreement that is, or at the Effective Time will be, applicable to Parent and its controlled affiliates in connection with this Agreement or the Merger; (y) fail to maintain in full force and effect material Insurance Policies (including renewals thereof) covering the Company and its Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practice; or (dz) agree to take, make any commitment to take, or adopt any resolutions in support of, any of the actions prohibited by this Section 5.1. Without limiting the scope of covenants of the Company set forth in this Section 5.1, the parties hereto acknowledge and agree that (A) nothing contained in this Section 5.1 is intended to give Parent, directly or indirectly, the right to direct the control or operations of the Company or any of its Subsidiaries prior to the Closing and (B) prior to the Closing, subject to this Section 5.1, the Company shall notify ADS promptly exercise, consistent with the terms and conditions of any material adverse event or circumstance affecting ADS (including this Agreement, complete control and supervision over the filing operations of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements itself and contractual obligations applicable to its operations and business and pay all applicable taxes; andSubsidiaries.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, from and agrees that prior to after the date of this Agreement until the earlier of the Effective Time or the time, if any, at which this Agreement is terminated in accordance with Section 8.1 (the “Pre-Closing Date: Period”), except (a) as set forth in Section 5.1 of the Company shall conduct its business and operations only in the usual and ordinary course of business; Disclosure Schedule, (b) Except as contemplated specifically required by this Agreement, and (c) as necessary required by Law or (d) as consented to effect the proposals contained in the Company Proxy Statement to by Parent (which consent shall not be filed (the “Company Proxy Statement”unreasonably withheld, delayed or conditioned), the Company shall not directly or indirectly do any of the following: (i) shall and shall cause each Company Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice, including by using commercially reasonable efforts to preserve intact its and their present business organizations, to keep available the services of its and their current officers and employees and to preserve its and their present relationships with material customers, suppliers, licensors, licensees, distributors, wholesalers, lessors and others Persons with whom it and they have material business relations; provided, however, that no action that is specifically permitted by any of clauses (a) through (p) of this Section 5.1 shall be deemed a breach of this clause (i) and (ii) agrees that during the Pre-Closing Period, the Company shall not, and shall not permit any Company Subsidiary to: (a) amend or otherwise change the Company Governing Documents, or otherwise alter its corporate structure through merger, liquidation, reorganization or otherwise; (b) issue, sell, pledge, dispose of or encumber encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including, without limitation, any phantom interest) (except for Shares issuable pursuant to Company Options under the Company Stock Plans, which Company Options are outstanding on the date hereof, or Shares issuable pursuant to rights outstanding under the ESPP in accordance with Section 2.7(d)); (c) redeem, repurchase or otherwise acquire, directly or indirectly, any Shares (other than pursuant a repurchase right in favor of Company with respect to unvested Restricted Shares at no more than cost); (d) incur any Indebtedness or guarantee any Indebtedness for borrowed money or issue or sell any debt securities or guarantee any debt securities or other obligations of others or sell, pledge, dispose of or create a Lien on any assets (except for (i) sales of inventory in the ordinary course of business and in a manner consistent with past practice, (ii) dispositions of obsolete or worthless assets and (iii) such incurrences of Indebtedness, guarantees of Indebtedness, issuance or sales of debt securities which are prepayable (or callable) at any time without penalty and do not exceed $100,000 in the aggregate); (e) accelerate, amend or change the period (or permit any acceleration, amendment or change) of exercisability of Company Options or vesting of Restricted Shares, or authorize cash payments in exchange for any Company Options or Restricted Shares, except as may be required under any Company Options, Restricted Shares, Contract or this Agreement or as may be required by applicable Law; (f) (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its assets; capital stock, except that a wholly owned Company Subsidiary may declare and pay a dividend to its parent, (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockstock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any substitution for shares of its capital stock or (iii) amend the terms of, repurchase, redeem or otherwise acquire, or permit any Company Subsidiary to repurchase, redeem or otherwise acquire, any of its securities or any securities of its Company Subsidiaries, or propose to do any of the foregoing; (g) sell, assign, transfer, license, sublicense, allow to lapse or expire or otherwise dispose of any of the Company’s or a Company Subsidiary’s Intellectual Property (other securities; than non-exclusive licenses in the ordinary course of business consistent with past practice); (vh) create (i) acquire (by merger, consolidation, or acquisition of stock or assets) any subsidiaries; Person, corporation, partnership or other business organization or business or division thereof or any other material property or assets, (viii) enter into, terminate or amend any Company Material Contract or grant any release or relinquishment of any material rights under any Company Material Contract, (iii) authorize any capital expenditures or purchase of fixed assets except for capital expenditures or purchases in aggregate less than $2,000,000 in November and December of 2016 or as contemplated by the capital expenditure budgets for the fiscal year ending December 31, 2017 set forth on Section 5.1(h) of the Company Disclosure Schedule (the “Capital Expenditure Budget”), or (iv) enter into or modify amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 5.1(h); (i) forgive any loans to any Person, including its employees, officers, directors or affiliates; (j) other than as required by Law or by Company Benefit Plans existing on the date hereof (i) except in the ordinary course of business consistent with past practice for employees of the Company or its Subsidiaries who have an annual base salary below $150,000 (“Non-Management Employees”), increase the compensation or other benefits payable or to become payable or provided to its directors, officers, employees or consultants (it being acknowledged that, pursuant to the Company’s customary annual year-end compensation review process, employees’ annual compensation generally is increased on January 1 of each year and that, as of the date hereof, the Company’s customary annual year-end compensation review process is in process), (ii) enter into any employment, consulting, change of control, severance or retention agreement or arrangement with any director, officer, employee or consultant (except for severance agreements or employment agreements terminable on no more than sixty (60) days’ notice without penalty or expense, in each case, that are entered into with employees who are Non-Management Employees in the ordinary course of business consistent with past practice), (iii) hire or terminate the employment of any employees other than Non-Management Employees, (iv) loan or advance any money or other property to any employee, director or consultant, other than routine advances for business expenses in the ordinary course of business, (v) grant any cash bonus or any cash incentive compensation outside the ordinary course of business consistent with past practice, (vi) establish, adopt, enter into, amend or terminate any collective bargaining agreement or Company Benefit Plan (or any plan, trust, fund, policy or arrangement that would be a Company Benefit Plan if it were in existence as of the date of this Agreement) except for routine amendments or renewals to health and welfare plans (other than severance plans) that would not result in an increase in benefits or in cost to the Company and its Subsidiaries or (vii) grant any equity or equity-based compensation; (k) take any action, other than as required by applicable Law or GAAP, to change accounting policies or procedures (with Parent to be provided prompt written notice of such change); (l) make or change any material Tax election inconsistent with past practices, change any Tax accounting period for purposes of a material Tax or material method of Tax accounting, file any amended Tax Return, enter into any closing agreement with respect to any material Tax, surrender any right to claim a material Tax refund or settle or compromise any material Tax liability or agree to an extension or waiver of the foregoing; statute of limitations with respect to a material amount of Taxes; (cm) Except as contemplated by enter into any material partnership arrangements, joint development agreements or strategic alliances; (n) initiate any material litigation, action, suit, proceeding, claim or arbitration or settle or agree to settle any litigation, action, suit, proceeding, claim or arbitration, other than any settlement that is solely for monetary damages of less than $50,000 and does not involve a Governmental Entity (provided that any litigation, action, suit, proceeding, claim or arbitration arising in connection with this Agreement, Agreement shall only be settled in accordance with Section 6.9); (o) fail to use its commercially reasonable efforts to maintain in full force and those items contained in effect the Company Proxy Statement existing insurance policies or to be filedreplace such insurance policies with comparable insurance policies covering the Company, the Company shall not Subsidiaries and their respective properties, assets and businesses or substantially equivalent policies; or (ip) issue, sell, pledge or dispose oftake, or agree in writing or otherwise to issuetake, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; actions described in this Section 5.1(a) through (dn) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andabove.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Effective Time, except as set forth in Section 5.1 of the Company Disclosure Schedule or as specifically permitted by any other provision of this Agreement, unless the Purchaser shall otherwise agree in writing: the Company will, and will cause each Company Subsidiary to, (A) conduct its business and operations only in the ordinary and usual and ordinary course of business; business consistent with past practice and (bB) Except use its reasonable best efforts to keep available the services of the current officers, key employees and consultants of the Company and each Company Subsidiary and preserve the current relationships of the Company and each Company Subsidiary with such of the customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations as contemplated by this Agreementis reasonably necessary to preserve substantially intact its business organization. Without limiting the foregoing, and as necessary to effect the proposals contained an extension thereof, except as set forth in Section 5.1 of the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule or as specifically permitted by any other provision of this Agreement, the Company shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or other regulatory organization applicable to the Company), and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of the Purchaser: Section 5.1.1 amend or otherwise change its certificate of incorporation or by-laws or equivalent organizational documents; Section 5.1.2 (iA) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock of, or other Equity Interests in, the Company or any Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options (excluding the options issuable pursuant to the Purchaser Stock Option Agreement), warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the Company or any Company Subsidiary, other than the issuance of Shares upon the exercise of Company Options or Director Options outstanding as of the date hereof in accordance with their terms or (B) sell, pledge, dispose of of, transfer, lease, license, guarantee or encumber any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockencumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or any Company Subsidiary, except pursuant to existing contracts or commitments or the sale or purchase of goods in the ordinary course of business consistent with past practice, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice; Section 5.1.3 declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement agreement with respect to any the voting of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; ; Section 5.1.4 reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or any other securities; Section 5.1.5 (iiA) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any corporationinterest in any person or any division thereof or any assets, partnership or other than acquisitions of assets in the ordinary course of business organization or division or the material assets thereofconsistent with past practice; (iiiB) incur any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than a wholly-owned Company Subsidiary) for borrowed money, except for indebtedness to othersfor borrowed money incurred in the ordinary course of business or other indebtedness for borrowed money with a maturity of not more than one year in a principal amount not, in the aggregate, in excess of $200,000 for the Company and the Company Subsidiaries taken as a whole; or (ivC) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract; Section 5.1.6 except as may be required by contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement: (A) increase the compensation or benefits payable or to become payable to its directors, officers or employees (except for increases in accordance with past practices in salaries or wages of employees of the Company or any Company Subsidiary which are not across-the-board increases), (B) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or employee of the Company or any Company Subsidiary, or establish, adopt, enter into or modify amend any contractcollective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, commitment trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law or the terms of a collective bargaining agreement in existence on the date of this Agreement or (C) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan, except, in each case, to the extent required by applicable Law or existing term of any such Company Benefit Plan described in the Company Disclosure Schedule; Section 5.1.7 (A) pre-pay any long-term debt, or pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms, (B) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, (C) delay or accelerate payment of any account payable or in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice, or (D) vary the Company’s inventory practices in any material respect from the Company’s past practices; Section 5.1.8 make any change in accounting policies or procedures, except as required by GAAP or by a Governmental Entity; Section 5.1.9 waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration; Section 5.1.10 make any material tax election or settle or compromise any material liability for Taxes; Section 5.1.11 modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which the Company is a party; Section 5.1.12 write up, write down or write off the book value of any assets, individually or in the aggregate, for the Company and the Company Subsidiaries taken as a whole, except for depreciation and amortization in accordance with GAAP consistently applied; Section 5.1.13 take any action to exempt or make not subject to (A) the provisions of Section 203 of the foregoing; DGCL, or (dB) the Company shall notify ADS promptly of any material adverse event other state takeover law or circumstance affecting ADS (including the filing of any material litigation against the Company state law that purports to limit or restrict business combinations or the existence of any dispute with ability to acquire or vote shares, any person (other than either Parent or entity the Purchaser) or any action taken thereby, which involves a reasonable likelihood person or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom; or Section 5.1.14 take any action that is intended or would reasonably be expected to result in any of such litigation the Tender Offer Conditions or the conditions to the Merger set forth in Article 6 not being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andsatisfied.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to From the date hereof until the earlier of the Closing Date: Date and the termination of this Agreement in accordance with Article 7, except (1) as expressly contemplated hereunder, (2) as required by applicable Law, (3) if Parent shall have consented in advance in writing (such consent not to be unreasonably withheld, conditioned or delayed), (4) for any Permitted Actions, so long as the Company promptly notifies Parent of such actions and considers any reasonable requests of Parent with respect thereto or (5) as set forth on Section 5.1 of the Company Disclosure Schedule, the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to (x) conduct its operations in the ordinary course of business and (y) preserve the goodwill and organization of the Company and its Subsidiaries and the Company’s and its Subsidiaries’ relationships with lenders, customers, suppliers, vendors, officers, employees, consultants and other Persons having business relations with the Company and its Subsidiaries, and the Company shall not, and shall cause its Subsidiaries not to: (a) the Company shall conduct its business and operations only in the usual and ordinary course of business; (b) Except as contemplated by this Agreementissue, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)deliver, the Company shall not directly or indirectly do any of the following: (i) sell, distribute, assign, transfer, grant, pledge, hypothecate, dispose of or otherwise encumber any shares of capital stock of, or other Equity Interests in, the Company or any of its assets; (ii) amend Subsidiaries or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockclass, or declaresecurities convertible into, set aside or pay any dividend exchangeable or other distribution payable in cashexercisable for, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its such capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares ofEquity Interests, or any options, warrants, conversion privileges warrants or other rights of any kind to acquire any shares ofof such capital stock or other Equity Interests or such convertible or exchangeable securities of the Company or any of its Subsidiaries, other than the issuance of Shares upon the settlement of Company Awards outstanding as of the date hereof in accordance with their terms; (b) merge or consolidate the Company or any of its capital stock; Subsidiaries with any Person; (iic) acquire any material assets or any other Person or material business of any other Person (whether by merger, merger or consolidation, acquisition of stock or assets or by formation of a joint venture or otherwise) or make any corporationinvestment in any Person, partnership other than (A) purchases of equipment, inventory or other assets in the ordinary course of business organization and (B) an investment in any wholly owned Subsidiary of the Company; (d) effect any recapitalization, reclassification, in-kind dividend, equity split or division similar change in capitalization; (e) amend or otherwise change their certificates or articles of incorporation, bylaws or limited liability company agreements (or equivalent organizational documents) of the Company or any of its Subsidiaries; (f) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock, or any other securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the material occurrence of certain events) into or exchangeable for any shares of its capital stock, except for (i) any dividends or distributions from a wholly owned Subsidiary to another wholly owned Subsidiary or the Company or (ii) the acceptance of Shares, or withholding of Shares otherwise deliverable, to satisfy withholding Taxes incurred in connection with the exercise, vesting and/or settlement of Company Awards; (g) sell, dispose, assign, transfer, mortgage, pledge, lease, license, sublicense or subject to any Lien, charge or otherwise encumber all or any portion of its assets, except (i) Permitted Liens, (ii) sales of products in the ordinary course of business and dispositions of assets thereof; that are obsolete, worn out surplus or no longer used and useful in the conduct of the business of the Company and its Subsidiaries, (iii) any factoring arrangements entered into in the ordinary course of business, (iv) non-exclusive licenses of Intellectual Property in the ordinary course of business, or (v) any such transactions by and among the Company and its wholly owned Subsidiaries entered into in the ordinary course of business; (h) abandon or permit to lapse any material Company Intellectual Property; (i) enter into any Affiliate Contracts; (j) disclose any material Trade Secrets or material Confidential Information of the Company and its Subsidiaries to any Person, other than in the ordinary course of business, to Persons who are under a contractual, legal, or ethical obligation to maintain the confidentiality of such information; (k) make any capital investment in, or any capital contribution or loan or advance to, or guaranty for the benefit of, any Person that (i) is not a wholly owned Subsidiary (except as required by the organizational documents of the Company’s Subsidiaries in effect as of the date hereof) or (ii) is a wholly owned Subsidiary (except in the ordinary course of business); (l) make any capital expenditures or commitments in excess of $1,000,000 in the aggregate (with any capital expenditures for the purchase of tractors and trailers netted against the proceeds from dispositions of tractors and trailers), other than capital expenditures or commitments that are provided for in the Company’s budget for calendar year 2022 made available to the Parent; (m) (x) incur indebtedness in amounts exceeding $10,000,000 in the aggregate (with any indebtedness incurred in connection with the purchase of tractors and trailers netted against the proceeds from dispositions of tractors and trailers), other than (i) indebtedness between or among the Company and its wholly owned Subsidiaries in the ordinary course of business, (ii) guarantees by the Company or its wholly owned Subsidiaries of indebtedness of the Company or its wholly owned Subsidiaries, which indebtedness is incurred in compliance with this Section 5.1, (iii) indebtedness arising solely from a change in GAAP, or (y) amend the terms of any indebtedness for borrowed moneymoney existing on the date of this Agreement in a manner that is materially detrimental to the Company or any of its Subsidiaries, issue other than at the request of Parent or Merger Sub; (n) except to the extent required under any debt securities Company Benefit Plan set forth on Section 3.11(a) of the Company Disclosure Schedule in effect as of the date of this Agreement, (i) grant to any current or guarantee former director, independent contractor, consultant, employee or officer of the Company or its Subsidiaries any indebtedness increase in compensation, bonus or fringe or other benefits or grant any type of compensation or benefit to others; any such Person not previously receiving or entitled to receive such compensation, other than increases in base salary for Company employees with annual base compensation less than $200,000 in the ordinary course of business, as part of the Company’s annual merit review process, provided that such increases shall not exceed 10% in the aggregate (relative to the aggregate base salary of the individuals permitted to receive an increase under this item), (ii) grant to any Person any severance, retention, change in control or termination compensation or benefits or any increase therein, other than with respect to new hires with an annual base salary or base wages of less than $200,000 or to employees (other than officers or employees who would be promoted to the level of officer) in the context of promotions based on job performance or jurisdiction requirements, in each case in the ordinary course of business, (iii) establish, enter into or adopt any Company Benefit Plan or amend or modify any Company Benefit Plan, other than any such amendments to existing Company Benefit Plans that are group health insurance plans or tax-qualified defined contribution retirement plans that are in the ordinary course of business and which do not materially increase, individually or in the aggregate, the annual cost to the Company and its Subsidiaries of the applicable Company Benefit Plan, or (iv) take any action to cause or accelerate the payment, funding, right to payment or vesting of any compensation or benefits under any existing Company Benefit Plan, other than as expressly provided pursuant to this Agreement; (o) hire any Person or terminate the employment or services of any employee (other than “for cause”), other than the hiring or terminating of employees with annual base salary or base wages less than $150,000 (in the ordinary course of business); (p) make any material change in the financial accounting policies or procedures used by the Company or any of its Subsidiaries or any of the methods of reporting income, deductions or other items for financial accounting purposes used by the Company or any of its Subsidiaries, except as required by GAAP or applicable Law; (q) make, change or revoke any material Tax election, adopt or change any Tax accounting period, adopt or change any Tax accounting method, enter into any “closing agreement” within the meaning of Section 7121 of the Code (or modify any contractcorresponding or similar provision of state, agreementlocal or non-U.S. Law) with a Governmental Entity with respect to Taxes, commitment settle any Tax claim, audit, assessment or arrangement Proceeding with respect to a material amount of Taxes, agree to an extension or waiver of the statute of limitations with respect to a material Tax liability or surrender (other than pursuant to the expiration of an applicable statute of limitations) any right to claim a refund, offset or other reduction of a material amount of Taxes; (r) implement any “mass layoffs” that would reasonably be expected to trigger notification requirements pursuant to the WARN (as such terms are defined by the WARN); (s) settle, release, waive or compromise any existing, pending or threatened Proceeding if such settlement, release, waiver or compromise (i) with respect to the payment of monetary damages, involves the payment of monetary damages exceeding $1,000,000 individually or $4,000,000 in the aggregate, or (ii) with respect to any non-monetary terms and conditions therein, imposes or requires actions that would or would be reasonably expected to be material to the Company and its Subsidiaries, taken as a whole; (t) (i) terminate or amend in a manner materially adverse to the Company or any of its Subsidiaries, any Company Material Contract, Leased Real Property Lease or Landlord Lease other than (x) any renewal, amendment or expiration in the ordinary course of business of such Company Material Contract, Leased Real Property Lease or Landlord Lease and (y) any termination due to a counterparty’s default thereunder or breach thereof, in the case of either clause (x) or (y), in accordance with the terms of such Company Material Contract, Leased Real Property Lease or Landlord Lease, as applicable, and (in the case of renewals pursuant to clause (x), on substantially the same terms (subject to customary increases in rent)), (ii) enter into any Contract that, if entered into prior to the date of this Agreement, would be a Company Material Contract (other than Contracts to provide services to customers entered into in the ordinary course), or enter into any Leased Real Property Lease or Landlord Lease, or (iii) waive any right under or release, settle or compromise any claim under any Company Material Contract, Leased Real Property Lease or Landlord Lease in a manner that is materially adverse to the Company and its Subsidiaries, taken as a whole; (i) modify, extend, or enter into any collective bargaining agreement or other Contract with any labor union, labor organization, works council or group of employees or (ii) recognize or certify any labor union, labor organization, works council, or group of employees of the foregoingCompany or its Subsidiaries as the bargaining representative for any employees of the Company or its Subsidiaries; (v) enter into a plan or agreement of complete or partial liquidation, dissolution, consolidation, restructuring or other reorganization of the Company or any of its Subsidiaries (except for the liquidation or dissolution of any dormant Subsidiary) and or enter into a new line of business; (w) adopt a rights plan, “poison pill” or similar agreement that is, or at the Effective Time will be, applicable to Parent and its controlled affiliates in connection with this Agreement or the Merger; (x) fail to maintain in full force and effect material Insurance Policies (including renewals thereof) covering the Company and its Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practice; or (dy) agree to take, make any commitment to take, or adopt any resolutions in support of, any of the actions prohibited by this Section 5.1. Without limiting the scope of covenants of the Company set forth in this Section 5.1, the parties hereto acknowledge and agree that (A) nothing contained in this Section 5.1 is intended to give Parent, directly or indirectly, the right to direct the control or operations of the Company or any of its Subsidiaries prior to the Closing and (B) prior to the Closing, subject to this Section 5.1, the Company shall notify ADS promptly exercise, consistent with the terms and conditions of any material adverse event or circumstance affecting ADS (including this Agreement, complete control and supervision over the filing operations of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements itself and contractual obligations applicable to its operations and business and pay all applicable taxes; andSubsidiaries.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to that, between the date of this Agreement and the Closing Date: (a) , the Company Business shall conduct its business be conducted only in, and operations only in shall not take any action except in, the usual and ordinary course of business; (b) Except business consistent with past practice. The Company shall use its reasonable best efforts to preserve intact its business organization, to keep available the services of its current officers, employees and consultants, and to preserve its present relationships with customers, suppliers and other persons with which it has significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not between the date of this Agreement and the Closing Date, directly or indirectly indirectly, do or propose or agree to do any of the followingfollowing without the prior written consent of Exult: (i) sell, pledge, dispose of or encumber any of its assets; (iia) amend or propose to amend otherwise change its Certificate certificate of Incorporation incorporation or Bylawsbylaws or equivalent organizational documents; (iiib) splitissue or authorize the issuance of, combine or reclassify any outstanding shares of its capital stockstock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock or other ownership interest; (c) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock; (ivd) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contractindirectly, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (iie) acquire (including, without limitation, for cash, or shares of stock, property or services, by merger, consolidation, consolidation or acquisition of stock or assets or otherwiseassets) any interest in any corporation, partnership or other business organization or division or the material assets thereof; (iiif) incur any indebtedness for borrowed moneyadditional indebtedness, issue create any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to Liens on any of its assets or prepay any Indebtedness, other than in the foregoingordinary course of business consistent with past practices; (dg) the Company shall notify ADS promptly of make any material adverse event loans or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with advances to any person or entity which involves a reasonable likelihood or guarantee the indebtedness of such litigation being commenced)any person or entity, except in the ordinary course of business consistent with past practice; (eh) sell, dispose of or encumber any of its assets, other than in the Company shall comply ordinary course of business, consistent with past practice; (i) enter into, modify or terminate, any Contract, other than in all material respects the ordinary course of business consistent with all legal requirements and contractual obligations applicable past practice; (j) except as set forth in SCHEDULE 6.1 attached hereto, pay any bonus to or increase the compensation or benefits payable or to become payable to its operations employees, independent contractors or consultants; (k) take any action, other than in the ordinary course of business consistent with past practice, which might result in any the loss of customers, (l) enter into any material transactions or do, or omit to do, any other things which may have a material and business and pay all applicable taxesadverse impact on the Business; andor (m) agree, in writing or otherwise, to take or authorize any of the foregoing actions or any other action which would make any representation or warranty in Article V hereof untrue or incorrect.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, except as set forth in Section 5.1 of the Company shall Disclosure Schedule or as otherwise expressly contemplated by any other provision of this Agreement, or with the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed), the Company will, and will cause each of its Subsidiaries to, (i) conduct its business and operations only in the usual and ordinary course of business; business in a manner consistent with past practice, and (bii) Except use its commercially reasonable efforts to keep available the services of the current officers, employees and consultants of the Company and each of its Subsidiaries and to preserve the goodwill and current relationships of the Company and each of its Subsidiaries with customers, suppliers and other Persons with which the Company or any of its Subsidiaries has business relations. Without limiting the foregoing, except as set forth in Section 5.1 of the Company Disclosure Schedule or as otherwise expressly contemplated by any other provision of this Agreement, and as necessary to effect or with the proposals contained in the Company Proxy Statement prior written consent of Parent (not to be filed (the “Company Proxy Statement”unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any of its Subsidiaries to, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, directly or indirectly do indirectly, take any of the following: following actions without the prior written consent of Parent (inot to be unreasonably withheld, conditioned or delayed): (a) amend or otherwise change the certificate of incorporation or bylaws or equivalent organizational documents of the Company or any of its Subsidiaries; (b) issue, sell, pledge, dispose of, grant, transfer or encumber any shares of capital stock of, or other Equity Interests in, the Company or any of its Subsidiaries of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities of the Company or any of its Subsidiaries, other than any pledge or encumbrance pursuant to the Credit Documents or the issuance of Shares upon the exercise of Company Options outstanding as of the date hereof in accordance with their terms; (c) sell, pledge, dispose of of, transfer, lease, license, guarantee or encumber any material property or assets of the Company or any of its assets; Subsidiaries (other than Intellectual Property), except (i) pursuant to the Credit Documents or (ii) amend the sale, pledge, disposition, transfer lease, license, guarantee or propose to amend its Certificate encumbrance of Incorporation property or Bylaws; assets in the ordinary course of business or consistent with past practice or industry standards; (iiid) splitsell, combine or reclassify any outstanding shares of its capital stockassign, pledge, transfer, license, abandon, or otherwise dispose of any Company Material Intellectual Property, except in the ordinary course of business or any pledge pursuant to the Credit Documents; (e) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; Equity Interests, except for dividends paid by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company; (vf) create reclassify, combine, split, subdivide, adjust or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any subsidiaries; (vi) enter into of its capital stock or modify any contractother Equity Interests, agreement, commitment or arrangement except with respect to any wholly owned Subsidiary of the foregoing; Company; (cg) Except as contemplated by this Agreementmerge, and those items contained in combine or consolidate the Company Proxy Statement to be filedor any of its Subsidiaries with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any optionsof its Subsidiaries, warrants, conversion privileges or rights except with respect to any wholly owned Subsidiary of any kind to acquire any shares of, its capital stock; the Company; (iih) acquire (including by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any corporationPerson or assets, partnership other than (i) acquisitions of inventory, raw materials and other property in the ordinary course of business consistent with past practice and (ii) any other acquisitions with a purchase price of less than $25 million; (i) incur, assume or other business organization or division or modify the material assets thereof; (iii) incur terms of any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), the obligations of any Person (other than a wholly-owned Subsidiary of the Company) for borrowed money, except (i) for borrowings under the Credit Documents, and (iii) indebtedness not to exceed $25 million in in the aggregate; provided, however, that any indebtedness incurred in accordance with this Section 5.1(i) shall not reasonably be expected to others; adversely affect the ability of Parent or Merger Sub to consummate the Debt Financing; (j) make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Subsidiary of the Company) in excess of $25 million in the aggregate; (k) terminate, cancel or renew, or agree to any material amendment to or waiver under any Company Material Contract, or enter into or amend any Contract that, if existing on the date hereof, would be a Company Material Contract, in a manner adverse to the Company and its Subsidiaries taken as a whole, in each case other than in the ordinary course of business or consistent with past practice or industry standards; (l) make any capital expenditure in excess of the Company’s capital expenditure budget as disclosed to Parent prior to the date hereof, other than capital expenditures that are not, in the aggregate, in excess of $25 million; (m) except as required by applicable Law or the existing terms of any Company Benefit Plan, (i) increase the compensation or benefits payable or to become payable to its directors, officers or employees of the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice with respect to any non-officer, (ii) materially amend any Company Benefit Plan or establish, adopt, enter into any new such arrangement that if in effect on the date hereof would be a Company Benefit Plan, other than in connection with new hires of non-officer employees in the ordinary course of business consistent with past practice, (iii) except as provided in Section 2.4, take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan or (iv) enter into terminate (other than for cause) the employment of any officer; (n) make any change in accounting policies, practices, principles, methods or modify procedures, other than as required by GAAP or by a Governmental Entity; (o) waive, compromise, settle or agree to settle any contract, agreement, commitment pending or arrangement threatened Proceeding or agree to any remedies with respect to any pending or threatened Proceeding other than waivers, compromises, settlements or agreements that involve only the payment of monetary damages not in excess of $10 million in the aggregate, in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries; (p) make, change or revoke any material Tax election, change any of its material methods of reporting income or deductions for Tax purposes, or change any accounting period or accounting method with respect to material Taxes, file any material amended Tax Return, surrender any right to claim a refund of material Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment settle or compromise any material Tax liability or settle any material Tax claim, audit or dispute; (q) enter into any new line of business outside of the Company’s and its Subsidiaries’ existing business on the date of this Agreement; (r) recognize any union or other labor organization as the representative of any of the employees of the Company or any of its Subsidiaries, or enter into any new or amended collective bargaining agreement with any labor organization except as required by applicable Law; (i) enter into or amend in any manner any Contract with any former or present director or officer of the Company or any of its Subsidiaries or with any affiliate of any of the foregoing Persons or any other Person covered under Item 404 of Regulation S-K under the Securities Act or (ii) make any payment to any affiliate of the Company or any other Person covered under Item 404 of Regulation S-K under the Securities Act (other than any payments pursuant to Contracts made available to Parent); or (t) authorize or enter into any Contract or otherwise make any commitment to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to Unless Buyer shall otherwise agree in writing, the Closing Date: (a) business of the Company shall conduct its business be conducted only in, and operations only in the usual Company shall not take any action except in, and the Members of the Company shall cause the Company to be conducted in, the ordinary course of businessbusiness and in a manner consistent with past practice and in accordance with applicable law; (b) Except and the Company shall use its best efforts to preserve substantially intact the business organization of the Company, to keep available the services of the current Members, employees and consultants of the Company and to preserve the current relationships of the Company with customers, suppliers and other persons with which the Company has significant business relations. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not not, between the date of this Agreement and the time of Closing, directly or indirectly do do, or propose to do, any of the following: following without giving Buyer prior written notice of and receiving Buyer's prior written consent: (ia) amend or otherwise change its ____________Articles of Organization or Operating Agreement; (b) issue, sell, pledge, dispose of, grant, encumber or authorize the issuance, sale, pledge, disposition, grant or encumbrance of (i) any membership interests in or encumber to the Company, or any options, warrants, convertible securities or other rights of its assets; any kind to acquire any Interests in or to the Company, or any other ownership interest (including, without limitation, any economic interest), of the Company or (ii) amend or propose to amend its Certificate any assets of Incorporation or Bylaws; the Company; (iiic) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stockInterests, other than payments necessary to achieve an Actual Net Equity (as defined in Section 2.2.2(b)) equal to zero as of Closing; (d) reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire, directly or indirectly, any of its Interests; (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) or form any corporation, partnership, other business organization or division thereof, or acquire directly or indirectly any material amount of assets; (ii) 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, except in the ordinary course of business and consistent with past practice which loans shall be on terms and conditions satisfactory to Buyer; (iii) enter into any contract or agreement other than in the ordinary course of business, consistent with past practice; (iv) redeemauthorize any single capital expenditure that is in excess of $2,500 or capital expenditures that are, purchase in the aggregate, in excess of $10,000; or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this subsection (e); (f) enter into any employment, consulting or agency agreement, or increase the compensation payable or to become payable to its Members, employees or consultants (other than payment of compensation necessary to achieve an Actual Net Equity (as defined in Section 2.2.2(b)) equal to zero as of Closing), except for increases in accordance with existing agreements or past practices for employees of the foregoingCompany who are not Members of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any Member, employee, or consultant of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; Interest Purchase Agreement (cg) Except as contemplated by this Agreementtake any action, other than reasonable and those items contained usual actions in the Company Proxy Statement ordinary course of business and consistent with past practice, with respect to be filedaccounting policies or procedures (including, without limitation, procedures with respect to the Company shall not payment of accounts payable and collection of accounts receivable); (h) make any tax election inconsistent with past practices or settle or compromise any material federal, state, local or foreign income tax liability; (i) issuepay, selldischarge or satisfy any claim, pledge liability or dispose ofobligation (absolute, accrued, asserted or agree to issueunasserted, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets contingent or otherwise) any corporation), partnership other than the payment, discharge or other satisfaction, in the ordinary course of business organization and consistent with past practice, of liabilities reflected or division reserved against in the Balance Sheet or subsequently incurred in the material assets thereof; ordinary course of business and consistent with past practice; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (ivj) enter into or modify any contract, agreement, commitment or arrangement with respect equipment lease; or (k) issue certificates for any of the Interests; or (l) agree to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior From the date of this Agreement to the Closing Date: (a) the Company shall conduct its business and operations only in the usual and ordinary course of business; (b) Except Effective Time, except as expressly contemplated by this Agreement, the Company shall, and as necessary shall cause each of the Subsidiaries, to effect the proposals contained (i) carry on its respective businesses in the ordinary course, (ii) use all reasonable best efforts to preserve intact its current business organizations and keep available the services of its current officers and key employees, (iii) use all reasonable best efforts to preserve its relationships with customers, suppliers, distributors and other Persons with which it has business dealings, (iv) comply in all material respects with all laws and regulations applicable to it or any of its properties, assets or business and (v) maintain in full force and effect all the Company Proxy Statement to be filed Permits necessary for such business. Without limiting the generality of the foregoing, without the prior consent of Parent, except as (the “Company Proxy Statement”)x) expressly contemplated by this Agreement or (y) set forth in Schedule 4.1, the Company shall not directly or indirectly do any not, and shall cause each of the following: Subsidiaries not to: (i) sell, pledge, dispose of or encumber any of its assets; (iia) amend or propose to amend its Certificate of Incorporation or Bylaws; By-Laws or similar organizational documents or change the number of directors constituting its entire board of directors; (iiii) split, combine or reclassify any outstanding shares of its capital stock, or (A) declare, set aside or pay any dividend or other distribution payable in cash, stock, stock or property or otherwise with respect to shares of its capital stock; , except that a wholly owned Subsidiary may declare and pay a dividend or make advances to its parent or the Company or (ivB) redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock or other securities; (vii) create any subsidiaries; (vi) enter into or modify any contractauthorize for issuance, agreementcommit to issue, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge pledge, dispose of or dispose ofencumber any (A) shares of its capital stock, (B) securities convertible into or exchangeable for, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges calls, commitments or rights of any kind to acquire acquire, any shares of, of its capital stock, or (C) of its other securities, other than Shares issued upon the exercise of Options or Warrants outstanding on the date hereof in accordance with the Option Plans or Warrant Agreements as in effect on the date hereof; or (iiiii) split, combine or reclassify any of its outstanding capital stock; (c) acquire or agree to acquire (A) by mergermerging or consolidating with, consolidationor by purchasing a substantial portion of the assets of, acquisition of stock or assets by any other manner, any business or otherwise) any corporation, partnership partnership, joint venture, association or other business organization or division thereof (including entities which are Subsidiaries) or (B) any assets, including real estate, except purchases in the ordinary course of business consistent with past practice in an amount not involving more than $250,000; (d) authorize or make capital expenditures in the aggregate in excess of $250,000; (e) except in the ordinary course of business, amend or terminate any Company Material Contract, or waive, release or assign any material rights or claims thereunder; (f) transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any property or assets other than in the ordinary course of business and consistent with past practice; (i) enter into any employment or severance agreement with or, except in accordance with the existing policies of the Company, grant any severance or termination pay to any officer, director or key employee of the Company or any Subsidiary; or (ii) hire any new or additional key employees or officers; (h) except as required to comply with applicable law, existing agreements or this Agreement, and other than in the ordinary course of business consistent with past practice, (A) adopt, enter into, terminate, amend or increase the amount or accelerate the payment or vesting of any benefit or award or amount payable under any Company Employee Benefit Plan or other arrangement for the current or future benefit or welfare of any director, officer or current or former employee, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee, (C) pay any benefit not provided for under any Company Employee Benefit Plan, (D) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Company Employee Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Company Employee Benefit Plans or agreements or awards made thereunder) or (E) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Company Employee Benefit Plan; (i) except for actions taken from the date hereof in respect of the redemption of the Notes, (i) incur or assume any long-term debt, or except in the ordinary course of business in amounts consistent with past practice, incur or assume any short-term indebtedness, in either case except borrowings in the ordinary course of business under the Loan and Security Agreement, dated as of September 13, 1996 (as amended), between the Company and Foothill Capital Corporation (the "Credit Agreement"); (ii) incur or modify any material assets thereofindebtedness or other liability; (iii) incur assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any indebtedness for borrowed moneyother Person, issue except in the ordinary course of business and consistent with past practice; (iv) make any debt securities loans, advances or guarantee capital contributions to, or investments in, any indebtedness other Person (other than to otherswholly owned Subsidiaries or customary loans or advances to employees in accordance with past practice); (v) settle any claims other than in the ordinary course of business, in accordance with past practice, and without admission of liability; or (ivvi) enter into any material commitment or transaction other than in the ordinary course of business consistent with past practice; (j) change the accounting methods used by it unless required by GAAP; (k) make, change or revoke any Tax election or settle or compromise any Tax liability; (i) settle or compromise any claim, litigation or other legal proceeding, other than in the ordinary course of business consistent with past practice in an amount not involving more than $250,000 or (ii) pay, discharge or satisfy any other claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of (A) any such other claims, liabilities or obligations, in the ordinary course of business 45 and consistent with past practice, or (B) of any such other claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company; (m) except in the ordinary course of business consistent with past practice, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any Subsidiary is a party; (n) permit any insurance policy naming the Company or any Subsidiary as a beneficiary or a loss payable payee to lapse or to be canceled or terminated by the Company without notice to Parent, except in the ordinary course of business and consistent with past practice; (o) take or omit to take any action which would make any of the representations or warranties of the Company contained in this Agreement untrue and incorrect in any material respect as of the date when made if such action had then been taken or omitted, or would result in any of the conditions set forth in Article VI hereof not being satisfied; or (p) enter into an agreement, contract, agreement, commitment or arrangement with respect to do any of the foregoing; (d) , or to authorize, recommend, propose or announce an intention to do any of the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andforegoing.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to that, during the Closing Date: (a) period from the date of this Agreement and continuing until the Closing, unless ZC shall otherwise agree in writing, which agreement shall not be unreasonably withheld, the Company shall conduct its business only in, and operations only the Company shall not take any action except in, the ordinary course of business and in a manner consistent with past practice other than actions expressly provided for in this Agreement; and the Company shall use all reasonable commercial efforts to preserve intact the business organization of the Company, to keep available the services of the present officers, employees and consultants of the Company and to preserve the present relationships of the Company with customers, suppliers and other persons with which the Company has business relations. By way of amplification and not limitation, except as expressly provided for in this Agreement, the Company shall not, during the period from the date of this Agreement and continuing until the Closing, directly or indirectly do, or propose to do, any of the following without the prior written consent of ZC, which consent shall not be unreasonably withheld: (a) amend the Certificate of Incorporation or By-Laws of the Company; (b) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including, without limitation, any phantom interest) in the usual and Company; (c) except in the ordinary course of business; (b) Except as contemplated by this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber any assets (tangible or intangible) of its assets; the Company except for (i) dispositions of obsolete or worthless assets and (ii) amend sales of assets not in excess of $10,000 in the aggregate; (i) declare, set aside, make or propose to amend pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its Certificate of Incorporation or Bylaws; capital stock, (iiiii) split, combine or reclassify any outstanding shares of its capital stockstock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any substitution for shares of its capital stock or other securities; (viii) create amend the terms or change the period of exercisability of, purchase, repurchase, redeem or otherwise acquire, any subsidiaries; (vi) enter into of its securities including without limitation, shares of Company Stock or modify any contractoption, agreementwarrant or right, commitment directly or arrangement with respect indirectly, to acquire shares of Company Stock, or propose to do any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not ; (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any corporation, partnership or other business organization or division or the material assets thereof; (iiiii) except in the ordinary course of business and only under the Company's revolving line of credit, incur any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any indebtedness to othersperson or, except in the ordinary course of business consistent with past practice, make any loans or advances; or (iviii) enter into or modify amend any material contract or agreement; (iv) authorize any capital expenditures or purchases of fixed assets which are, in the aggregate, in excess of $25,000; or (v) enter into or amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 5.1(e); (f) increase the compensation payable or to become payable to its officers, increase compensation payable or to become payable to its employees other than in the ordinary course of business, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director, officer or other employee of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees, except, in each case, as may be required by law; (g) take any action to change accounting policies or procedures (including, without limitation, procedures with respect to revenue recognition, payments of accounts payable and collection of accounts receivable), except as may be required by law; (h) make any material tax election inconsistent with past practice or settle or compromise any material federal, state, local or foreign tax liability or agree to an extension of a statute of limitations; (i) 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 and consistent with past practice of liabilities reflected or reserved against in the Financial Statements or incurred in the ordinary course of business and consistent with past practice; or (j) take, or agree in writing or otherwise to take, any of the foregoing; actions described in Sections 5.1 (da) through (i) above, or any action which would make any of the representations or warranties of the Company shall notify ADS promptly of contained in this Agreement untrue or incorrect in any material adverse event respect or circumstance affecting ADS (including the filing of any material litigation against prevent the Company from performing or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) cause the Company shall comply in all material respects with all legal requirements and contractual obligations applicable not to perform its operations and business and pay all applicable taxes; andcovenants hereunder.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date: Stockholders agree that, between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (ax) the businesses of the Company shall be conducted only in, and the Company shall not take any action except in, the ordinary course of business consistent with past practice and (y) the Company shall conduct use all reasonable efforts to keep available the services of such of the current officers, significant employees and consultants of the Company and to preserve the current relationships of the Company with such of the corporate partners, customers, suppliers and other persons with which the Company has significant business relations in order to preserve substantially intact its business organization. By way of amplification and operations only in the usual and ordinary course of business; (b) Except as contemplated by this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)not limitation, the Company shall not not, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Parent: (ia) amend or otherwise change its certificate of incorporation or bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license or encumbrance of (i) any shares of capital stock of the Company of any class, or encumber securities convertible into or exchangeable or exercisable for any shares of its such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or (ii) any property or assets of the Company except sales of inventory in the ordinary course of business consistent with past practice; (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or person or any division thereof; (ii) amend incur any indebtedness for borrowed money or propose issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person for borrowed money or make any loans or advances material to amend its Certificate the business, assets, liabilities, financial condition or results of Incorporation or Bylawsoperations of the Company; (iii) splitterminate, combine cancel or reclassify request any outstanding shares of its capital stockmaterial change in, or agree to any material change in, any Material Contract or License Agreement; (iv) make or authorize any capital expenditure, other than capital expenditures in the ordinary course of business consistent with past practice that are not, in the aggregate, in excess of $25,000 for the Company; or (v) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 6.01(c); (d) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock; ; (ive) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock stock; (f) amend the terms of, repurchase, redeem or otherwise acquire, any of its securities or any securities or propose to do any of the foregoing; (g) increase the compensation payable or to become payable to its directors, officers, consultants or employees, grant any rights to severance or termination pay to, or enter into any employment or severance agreement which provides benefits upon a change in control of the Company that would be triggered by the Merger with, any director, officer, consultant or other securities; (v) create any subsidiaries; (vi) employee of the Company who is not currently entitled to such benefits from the Merger, establish, adopt, enter into or modify amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, consultant or employee of the Company, except to the extent required by applicable Law or the terms of a collective bargaining agreement, or enter into or amend any contract, agreement, commitment or arrangement between the Company and any of the Company's directors, officers, consultants or employees; (h) 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 and consistent with past practice of liabilities reflected or reserved against on the balance sheet of the Company dated as of August 31, 2000 previously presented to Parent and only to the extent of such reserves; (i) make any change with respect to the Company's accounting policies, principles, methods or procedures, including, without limitation, revenue recognition policies, other than as required by GAAP; (j) make any material Tax election or settle or compromise any material Tax liability; (k) permit any insurance policy naming it as a beneficiary or a loss payee to be cancelled or terminated, except in the ordinary and usual course of business; (l) maintain the books and records of the foregoing; Company in a manner not consistent with past business practices; (cm) Except take any action which would materially adversely affect the goodwill of its suppliers, customers and others with whom it has business relations; (n) fail to pay and perform all of its debts, obligations and liabilities as contemplated by this Agreementand when due and all leases, agreements, contracts and those items contained other commitments to which it is a party in accordance with the Company Proxy Statement terms and provisions thereof; (o) fail to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations Laws that may be applicable to its operations and business and pay all applicable taxesbusiness; andor (p) authorize or enter into any formal or informal agreement or otherwise make any commitment to do any of the foregoing or to take any action which would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or prevent the Company from performing or cause the Company not to perform its covenants hereunder or result in any of the conditions to the Merger set forth herein not being satisfied.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the Agreement Date and agrees that prior continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing Date: (a) Effective Time, except as set forth in Section 6.2 of the Company shall Disclosure Schedule or as specifically permitted by any other provision of this Agreement, unless authorized and previously approved in writing by the majority of the members of the Operating Committee, the Company will, and will cause each of its Subsidiaries to conduct its business and operations only in the ordinary and usual and ordinary course of business; (b) Except as contemplated by this Agreementbusiness consistent with past practice. Without limiting the foregoing, and as necessary to effect the proposals contained an extension thereof, except as set forth in Section 6.2 of the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule or as specifically permitted by any other provision of this Agreement, the Company shall not (unless required by applicable Law), and shall not permit any of its Subsidiaries to, between the Agreement Date and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following unless authorized and previously approved in writing by the majority of the members of the Operating Committee: (ia) amend or otherwise change its certificate of incorporation or by-laws or equivalent organizational documents; (b) (A) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock of, or other Equity Interests in, the Company or any of its Subsidiaries of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the Company or any of its Subsidiaries other than the issuance of Company Common Stock upon the exercise of Company Options outstanding as of the date hereof in accordance with their terms or upon the conversion of Company Preferred Stock or other convertible securities of the Company, or (B) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including, without limitation, Intellectual Property and Intellectual Property related to the Company’s Clonidine program) of the Company or encumber any of its assets; Subsidiaries, except pursuant to existing Contracts or commitments or the sale or purchase of goods in the ordinary course of business consistent with past practice; (iic) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares any of its capital stock (other than dividends paid by a wholly-owned Subsidiary of the Company to the Company or to any other wholly-owned Subsidiary of the Company) or enter into any agreement with respect to the voting of its capital stock; ; (ivd) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock, other Equity Interests or other securities (other than in connection with the termination of an employee pursuant to existing repurchase rights); (e) (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other securities; than acquisitions of assets in the ordinary course of business consistent with past practice, (vB) create incur any subsidiaries; 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 (viother than a wholly-owned Subsidiary of the Company) for borrowed money (other than ordinary course trade accounts payable, which shall not be material in the aggregate), (C) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract other than in the ordinary course of business consistent with past practice, or (D) enter into or modify amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 6.2(e); (f) (A) increase the compensation or benefits payable or to become payable to its directors, officers or employees; (B) grant or modify any rights to severance, change-in-control or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of its Subsidiaries, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law; or (C) take any affirmative action to amend or waive any performance or vesting criteria, accelerate vesting, exercisability or funding or exercise any discretion under any Company Benefit Plan; (g) (A) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise) except in the ordinary course of business consistent with past practice and in accordance with their terms, (B) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, or (C) delay or accelerate payment of any account payable in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice; (h) make any change in accounting policies or procedures, except as required by GAAP or by a Governmental Entity; (i) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration; (j) change its method of accounting, make any material tax election, settle or compromise any material liability for Taxes, amend any Tax Return or file any refund for Taxes; (k) take, or agree to take, any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; (l) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which the Company is a party; (m) take any action that is intended or would reasonably be expected to result in any of the foregoingconditions to the Merger set forth in Article VII not being satisfied; or (cn) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge authorize or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into any agreement or modify otherwise make any contract, agreement, commitment or arrangement with respect to do any of the foregoing; (d) the . The Company shall notify ADS fully and promptly inform the Operating Committee of all discussions, negotiations or activities related to the license, sale, or potential license or sale, of any material adverse event or circumstance affecting ADS asset of the Company, and shall promptly provide the Operating Committee copies of any written materials (including the filing of materials in electronic form or otherwise) received from any material litigation against the Company or the existence of any dispute third party in connection with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andforegoing.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date: (a) the Company shall conduct its business and operations only in the usual and ordinary course of business; (b) Except as expressly contemplated by this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement shall (and Stockholder shall cause the Company to) carry on its business in, and not enter into any material transaction other than in accordance with, the ordinary course consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to preserve intact its current business organization and preserve its relationships with customers, suppliers and others having business dealings with it (except, in each case, with the prior written consent of Buyer). In connection therewith, Stockholder shall not (i) transfer or cause to be filed transferred any employee or agent of the Company to any of the Company's Affiliates, (ii) offer employment to any such employee or agent or (iii) otherwise attempt to persuade any such employee or agent to terminate his or her relationship with the “Company Proxy Statement”)Company. Without limiting the generality of the foregoing, and except as expressly contemplated by this Agreement, the Company shall not directly or indirectly do any not, without the prior written consent of the following: Buyer: (i) (A) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to Stockholder in its capacity as such, (B) split, combine or reclassify any of its capital stock or issue, sell or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof; (ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend stock or other distribution payable in cashsecurities (including, stockwithout limitation, property any rights, warrants or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer options to acquire any shares of its capital stock or other securities; ); (viii) create any subsidiaries; amend its Articles of Incorporation or By-laws; (viiv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, acquire or agree to issueacquire by merging or consolidating with, sellor by purchasing a substantial portion of the assets of or equity in, pledge or dispose ofby any other manner, any additional shares of, business or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership partnership, association or other business organization or division thereof; (v) except in the ordinary course of business consistent with past practices, incur or the material assets thereof; (iii) incur assume any indebtedness for borrowed money, enter into (as lessee) any capitalized lease obligation, guarantee any such indebtedness or obligation, issue or sell any debt securities, guarantee any debt securities of others or guarantee make any indebtedness to others; loans, advances or capital contributions to, or investments in, any other Person; (ivvi) except in the ordinary course of business consistent with past practices, make or incur any new capital expenditure; (vii) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction thereof in the ordinary course of business consistent with past practice; (viii) alter through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure; (ix) enter into or modify adopt any contractbonus, incentive, deferred compensation, insurance, medical, hospital, disability or severance plan, agreement or arrangement or enter into any employee benefit plan or employment, consulting or management agreement, commitment other than any such amendment to an employee benefit plan that is made to maintain the qualified status of such plan or arrangement its continued compliance with respect applicable law; (x) make any change in accounting practices or policies applied in the preparation of the financial statements referred to in Section 4.4, except ----------- as required by generally accepted accounting principles; (xi) except in the ordinary course of business consistent with past practices, modify any of the foregoing; agreements, understandings, obligations, commitments, indebtedness or other obligations set forth in any of the Schedules to this Agreement, enter into any agreement, understanding, obligation or commitment, or incur any indebtedness or obligation, of the type that would have been required to be listed on Schedule 4.19 if in existence on ------------- the date hereof, or enter into any contract which requires any approval or consent by any other Person to the transactions contemplated by this Agreement; (dxii) except in the ordinary course of business consistent with past practices, pay or commit to pay any bonus to any officer or employee of the Company shall notify ADS promptly or make any other material change in the compensation of its employees; (xiii) except in the ordinary course of business consistent with past practices, make any material adverse event change in its business or circumstance affecting ADS operations; (xiv) enter into any contract for the purchase or lease of real property; (xv) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers from the Company to Stockholder or any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the Company's assets; (xvi) except in the ordinary course of business consistent with past practices, cancel any debts owed to or claims held by the Company (including the filing settlement of any material litigation against the Company claims or litigation); (xvii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the existence dates when the same would have been collected in the ordinary course of its business consistent with past practice; (xviii) delay or accelerate payment of any dispute account payable or other liability beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of its business consistent with past practice; or (xix) enter into any person other transaction affecting the business of the Company, other than in the ordinary course of business consistent with past practice or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andas expressly contemplated by this Agreement.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date: (a) The Company agrees that, between the date of this Agreement and the earlier to occur of the termination of this Agreement pursuant to Section 9.1 or Section 9.2 hereof or the Effective Time, except as expressly set forth in Section 7.1(a) of the Company shall conduct its business and operations only in the usual and ordinary course of business; (b) Except Disclosure Schedule, as otherwise permitted or contemplated by this Agreement, as required by applicable Law or as consented to in writing by Parent (such consent not to be unreasonably withheld, conditioned or delayed), the Company will, and will cause each Company Subsidiary to, (x) conduct its business in the ordinary course consistent with past practice and (y) subject to the limitations set forth in the following sentence, use its commercially reasonable efforts to keep available the services of the current officers and key employees of the Company and each Company Subsidiary and to preserve the current relationships of the Company and each Company Subsidiary with each of the customers, suppliers, landlords and other Persons with whom the Company or any Company Subsidiary has material business relations. Without limiting the foregoing, and as necessary to effect the proposals contained an extension thereof, except as set forth in the Company Proxy Statement Disclosure Schedule, as otherwise expressly permitted or contemplated by this Agreement, as required by applicable Law or as consented to in writing by Parent (such consent not to be filed (the “Company Proxy Statement”unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, take any of the following: following actions: (i) amend or otherwise change the Company Articles of Incorporation, the Company Bylaws or equivalent organizational documents of the Company Subsidiaries; (ii) issue, deliver, sell, pledge, dispose of transfer, encumber or encumber any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockotherwise dispose, or declareauthorize, set aside propose or pay any dividend agree to the issuance, delivery, sale, pledge, transfer, encumbrance or other distribution payable in cashdisposition of, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter Equity Interests, or securities convertible into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose ofexchangeable for, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges calls, commitments or rights of any kind to acquire acquire, any shares of, of any class or series of its capital stock; stock or other Equity Interests (iiother than as permitted pursuant to clause (xii) below or pursuant to the exercise of Company Options, Company Restricted Stock Units or, subject to Section 4.5(d), the Company Warrant, in each case existing on the date hereof on the terms in effect on the date hereof); (iii) declare, set aside, establish a record date for, make or pay any dividend or other distribution (whether payable in cash, Equity Interests, property or a combination thereof) with respect to any of its Equity Interests or enter into any agreement with respect to the voting of its Equity Interests (which, for the avoidance of doubt, excludes any proxies granted to the Company or its officers in connection with any meeting of the Company shareholders); (iv) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire or offer to acquire, directly or indirectly, any of its capital stock or other Equity Interests, or securities convertible or exchangeable into or exercisable for any of its capital stock or other Equity Interests, except pursuant to the exercise or settlement of Company Options, Company Restricted Stock Units, Company Warrants (subject to Section 4.5(d)), employee severance, retention, termination, change of control and other contractual rights, in each case existing on the date hereof on the terms in effect on the date hereof; (v) acquire (including by merger, consolidation, consolidation or acquisition of stock or assets or otherwiseEquity Interests) any corporation, partnership equity interest in or other business organization or division or the material assets of any business or any division thereof; , or make any loan, advance or capital contribution to, or investment in, any business or any division thereof, except any such acquisitions, loans, advances, contributions or investments that are consistent with past practice and are for consideration not in excess of $100,000 individually, or $250,000 for all such transactions by the Company and the Company Subsidiaries in the aggregate, and except for (iiix) intercompany loans, advances, contributions or investments between or among the Company and wholly-owned Company Subsidiaries and not involving any Third Party and, for the avoidance of doubt, (y) acquisitions of inventory in the ordinary course of business; (vi) redeem, repurchase, prepay, defease, cancel, incur or otherwise acquire, or modify the terms of, any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person for borrowed money; (vii) grant any Lien on any of its assets, other than Liens granted in connection with any indebtedness to others; or permitted under Section 7.1(a)(vi), and other than Permitted Encumbrances; (ivviii) (A) enter into into, terminate or materially amend or modify (other than extensions or expirations at the end of a term in the ordinary course of business) any contractCompany Material Contract or Contract that, agreementif in effect on the date hereof, commitment would have been a Company Material Contract, (B) waive any term of or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event default under, or circumstance affecting ADS (including the filing of release, settle or compromise any material litigation claim against the Company or any Company Subsidiary or liability or obligation owing to the existence Company or any Company Subsidiary under, any Company Material Contract, or (C) enter into any Contract which contains a change of control or similar provision in favor of the other party or parties thereto or would otherwise require a payment or give rise to any rights to such other party or parties in connection with the Offer, the Merger or the other transactions contemplated in this Agreement; (ix) without limitation of Section 7.5, except as set forth on Section 5.17(c) of the Company Disclosure Schedule, sell, transfer, lease, sublease, license, assign, abandon or otherwise dispose of any dispute assets, rights or properties of the Company or any Company Subsidiary having a current value in excess of $500,000 individually or $1,000,000 in the aggregate or any material Company Intellectual Property, other than, in each case, non-exclusive licenses granted in the ordinary course of business or sales of inventory made in the ordinary course of business; (x) authorize, or make any commitment with respect to, any person single capital expenditure in excess of $250,000 or entity which involves a reasonable likelihood capital expenditures for the Company and the Company Subsidiaries in excess of $1,000,000 in the aggregate, except for capital expenditures that are contemplated by the Company’s existing plan for annual capital expenditures for 2010 previously made available to Parent; (xi) enter into any new line of business outside of its existing business segments; (xii) (A) except to the extent required by applicable Law or any existing Company Plan or by written agreements existing on the date of this Agreement that have been disclosed or made available to Parent, grant or announce any stock option, equity or incentive awards or the increase in the salaries, bonuses or other compensation and benefits payable by the Company or any Company Subsidiary to any executive officers or directors of the Company, or, other than in the ordinary course of business consistent with past practice, to any other employees, managers or other service providers of or to the Company or any Company Subsidiary, (B) hire any new executive officer, unless such hiring is in the ordinary course of business consistent with past practice, (C) except to the extent required by applicable Law or any existing Company Plan or by written agreements existing on the date of this Agreement that have been disclosed or made available to Parent, (x) pay or agree to pay any pension, retirement allowance, termination or severance pay, bonus or other material benefit not required by any existing Company Plan or other Contract in effect on the date of this Agreement to any employee, officer, director, manager, equityholder or other service provider of or to the Company or any of the Company Subsidiaries, whether past or present, except for agreements with employees hired after the date of this Agreement in the ordinary course of business consistent with past practice, or (y) take any action to accelerate vesting of any right to compensation or benefits, (D) except to the extent required by applicable Law or any existing Company Plan or by written agreements existing on the date of this Agreement that have been disclosed or made available to Parent, enter into or amend any Contracts of employment or any consulting, bonus, severance, retention, retirement or similar Contract, except for agreements for newly hired employees in the ordinary course of business consistent with past practice with an annual base salary and incentive compensation opportunity not to exceed $250,000 in the aggregate for any such employee, or (E) except as required to ensure that any Company Plan is not then out of compliance with applicable Law, enter into or adopt any new, or materially increase benefits under or renew, amend or terminate any existing Company Plan or any collective bargaining agreement; (xiii) pay, discharge, settle or satisfy any material claims or obligations (absolute, accrued, contingent or otherwise) in an amount in excess of $250,000 individually or $1,000,000 in the aggregate, other than (A) performance of contractual obligations in accordance with their terms, (B) payment, discharge, settlement or satisfaction in the ordinary course of business or (C) payment, discharge, settlement or satisfaction in accordance with their terms, of claims, liabilities or obligations that have been (1) disclosed in the most recent financial statements of the Company included in the Company SEC Filings filed prior to the date hereof to the extent of such litigation being commenceddisclosure or (2) incurred since the date of such financial statements in the ordinary course of business; (xiv) except as may be required by GAAP or as a result of a change in Law, make any change in accounting principles, policies, practices, procedures or methods; (xv) change any material method of Tax accounting, make or change any material Tax election, file any material amended Tax Return, settle or compromise any material Tax liability, claim or assessment, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any material closing agreement, or surrender any right to claim a material Tax refund; (xvi) settle, release, waive or compromise any pending or threatened Action against the Company or any of the Company Subsidiaries (A) for an amount in excess of $250,000 individually or $500,000 in the aggregate, (B) entailing the incurrence of (1) any obligation or liability of the Company in excess of such amount, including costs or revenue reductions, or (2) obligations that would impose any material restrictions on the business or operations of the Company or any of the Company Subsidiaries or their use of any Company Intellectual Property, or (C) that is brought by any current, former or purported holder of any Equity Interests or debt securities of the Company or any Company Subsidiary relating to the transactions contemplated by this Agreement; (xvii) fail to maintain in full force and effect material insurance policies covering the Company and the Company Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practice; (xviii) adopt or enter into a plan of complete or partial liquidation, restructuring, recapitalization, dissolution or other reorganization of the Company or any Company Subsidiary; (xix) adopt or implement a rights plan or similar arrangement; (xx) (A) amend or modify the letter of engagement of the Company Financial Advisor in a manner that materially increases the fee or commission payable by the Company, (B) engage any other financial advisor in connection with the transactions contemplated hereby or other Acquisition Proposals, or (C) engage other advisors or consultants in connection with the transactions contemplated hereby or other Acquisition Proposals that, with respect to this clause (C), materially increases the Company’s costs and expenses associated with such transaction; (xxi) implement any plant closing or layoff of employees that could implicate the WARN Act; provided that this Section 7.1(a)(xxi) shall not restrict the Company or any Company Subsidiary from terminating any employee for cause at anytime; or (exxii) enter into any agreement or arrangement to take any of the foregoing actions. (b) Nothing contained in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the operations of the Company or any Company Subsidiary prior to the Acceptance Time. Prior to the Acceptance Time, each of Parent and the Company shall comply exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective businesses and operations. (c) As soon as practicable after the date hereof, the parties shall create a joint transition management committee (the “Transition Committee”) consisting of two (2) Representatives from each of the parties hereto designated from time to time as agreed by the Chief Executive Officers of each of Parent and the Company. The Transition Committee shall be responsible for organizing, developing, managing and implementing a transition plan for the prompt and efficient integration of the business organizations of Parent and the Company and their respective Subsidiaries from and after the Acceptance Time subject to the provisions of Section 7.1(b) above, and may include such additional employees of each of the Parties as such designated Representatives may determine are necessary or advisable from time to time. Parent agrees that any request made by the Company for the consent of Parent under Section 7.1(a) may be made in all material respects with all legal requirements writing to at least one (1) of the two (2) Representatives of Parent designated by the Chief Executive Officer of Parent as members of the Transition Committee, and contractual obligations that the applicable member of the Transition Committee shall reasonably promptly respond to its operations and business and pay all applicable taxes; andany such request.

Conduct of Business by the Company Pending the Closing. The Company covenants Sellers covenant and agrees that prior to agree that, except as otherwise expressly required or permitted by the terms of this Agreement or except as expressly approved or directed by Purchaser between the date of this Agreement and the Closing Date: (a) , the business of the Company and each of its Subsidiaries shall conduct be conducted only in, and the Company and its business and operations only in Subsidiaries shall not take any action except in, the usual and ordinary course of business; (b) Except as contemplated by this Agreementbusiness consistent with past practice, and as necessary to effect the proposals contained in the Company Proxy Statement and its Subsidiaries shall not change their operations or policies. The Company shall use, and shall cause its Subsidiaries to be filed (use, reasonable efforts to preserve intact the “Company Proxy Statement”)Company’s and its Subsidiaries’ business organizations, to keep available the services of their current officers, employees and consultants, and to preserve their present relationships with customers, suppliers and other Persons with which they have business relations. By way of amplification and not limitation, neither the Company shall not nor any of its Subsidiaries shall, except as expressly required or permitted by the terms of this Agreement between the date of this Agreement and the Closing, directly or indirectly indirectly, do or propose or agree to do any of the following: following without the prior written consent or direction of Purchaser: (ia) amend or otherwise change its Articles of Incorporation, By-laws or other organizational or governing documents; (b) issue, sell, pledge, dispose of of, encumber, or encumber authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockstock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock or any other ownership interest; (c) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, on or with respect to shares of its capital stock; (iv) stock or other securities, or reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock or other securities; ; (vd) create any subsidiaries; (vi) enter into sell, lease, license or modify any contract, agreement, commitment or arrangement with respect to transfer any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained its properties or assets other than in the Company Proxy Statement ordinary course of business consistent with past practice; (e) grant, acquire, dispose of, abandon or fail to be filed, the Company shall not maintain any rights in Intellectual Property; (f) (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, consolidation or acquisition of stock or assets or otherwiseassets) any interest in any 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, except in the material ordinary course of business consistent with past practice, purchase any property or assets thereof; of any other Person, (iii1) make or obligate itself to make capital expenditures in excess of $250,000, (2) other than in the ordinary course consistent with past practice, incur any indebtedness for borrowed moneyobligations or liabilities, including, without limitation, Indebtedness, (3) issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any indebtedness to others; Person, or make any loans or advances, (4) modify, terminate, or enter into any Contract other than as provided herein or in the ordinary course of business consistent with past practice, or (iv5) impose any security interest or other Lien on any of its Assets or on the Leased Real Property, as applicable; (g) waive, cancel, compromise or release any rights other than in the ordinary course of business consistent with past practice; (h) make any payment in respect of its liabilities other than in the ordinary course of business consistent with past practice; (i) increase the compensation payable or to become payable to its employees, officers or directors or, except as presently bound to do, grant or pay any bonus, severance or termination pay to, or enter into any bonus, employment, change of control or severance agreement with, any of its directors, officers, or employees, or establish, adopt, enter into or modify amend or take any contract, agreement, commitment action to accelerate or arrangement create any rights or benefits with respect to any collective bargaining, bonus, profit sharing trust, compensation, stock option, restricted stock pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees; (j) make any loans to any of its officers, directors, employees, Affiliates, agents or consultants or make any change in its existing borrowing or lending arrangements for or on behalf of any of such persons, whether pursuant to an Employee Benefit Plan or otherwise; (k) create any additional employee benefit or compensation plans, policies or arrangements or, except as may be required by law, to modify any Employee Benefit Plan; (l) conduct any operations or adopt any policies other than in the ordinary course of business consistent with past practice; (m) take any action with respect to accounting policies or procedures or make any adjustment to its books and records other than in the ordinary course of business and in a manner consistent with past practices; (n) enter into, or amend in any material respect the terms of, any collective bargaining agreement or other labor-related agreement or arrangement; (o) pay, discharge or satisfy any existing 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 of due and payable liabilities reflected or reserved against in its financial statements, as appropriate, or liabilities incurred after the date thereof in the ordinary course of business and consistent with past practices; (p) unless required by law, make or change any election in respect of Taxes except in the ordinary course of business consistent with past practice, amend any Tax Return previously filed, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle or compromise any claim or assessment in respect of Taxes, or consent to any extension or waiver of the foregoing; limitation period applicable to any claim or assessment in respect of Taxes; (dq) delay paying any account payable beyond the date on which it is due and payable except to the extent being contested in good faith other than in a manner consistent with past practices; (r) enter into any transaction or modify the terms of any existing transaction with Seller or any of its Affiliates (other than the Company shall notify ADS promptly of and its Subsidiaries); (s) make or pledge any material adverse event charitable contributions; (t) enter into, amend or circumstance affecting ADS (including the filing of modify any material litigation against agreement or arrangement that may subject the Company or any of its Subsidiaries to any liability relating to any Section 29 tax credit indemnification obligations; or (u) authorize any of the existence of foregoing actions or any dispute with action which would make any person representation or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply warranty in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andArticle III untrue or incorrect in any respect.

Conduct of Business by the Company Pending the Closing. The Company covenants and From the date hereof until the Closing, except as the Crusader Representative otherwise agrees that prior to the Closing Date: (a) in writing, as set forth in the Company Disclosure Schedule, or as otherwise contemplated by this Agreement, the Company and each of its Subsidiaries shall conduct its business and operations only in the usual and ordinary course consistent with past practice and shall use commercially reasonable efforts to preserve intact its business organizations and relationships with third parties and to keep available the services of business; its present officers and key Company Employees and consultants, subject to the terms of this Agreement. Except as otherwise provided in this Agreement, and without limiting the generality of the foregoing, from the date hereof until the Closing, without the Crusader Representative’s written consent (which consent shall not be unreasonably withheld): (a) Except for an amendment to increase its authorized Common Shares to 500,000,000 and to amend its articles of incorporation to change the name of the Company, the Company shall not, and shall not permit any of its Subsidiaries to, adopt or propose any change to its articles of incorporation or bylaws (or similar organizational documents); (b) Except as contemplated by this Agreement, and as necessary set forth in Section 5.2(b) to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule, the Company shall not, and shall not directly or indirectly do permit any of the following: its Subsidiaries to, (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of capital stock of the Company or its Subsidiaries (except for intercompany dividends from direct or indirect wholly owned Subsidiaries), (ii) repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other securities; securities of, or other ownership interests in, the Company or any of its Subsidiaries, other than intercompany acquisitions of stock or (viii) create split, combine or reclassify any subsidiaries; shares of capital stock of the Company or its Subsidiaries; (vic) The Company shall not, and shall not permit any of its Subsidiaries to, merge or consolidate with any other Person or acquire assets of any other Person for aggregate consideration which, together with the aggregate consideration of all other acquisitions of assets by the Company and its Subsidiaries, exceeds $300,000 in the aggregate, or enter a new line of business or commence business operations in any country in which the Company is not operating as of the date hereof; (d) Except as set forth in Section 5.2(d) of the Company Disclosure Schedule, the Company shall not, and shall not permit any of its Subsidiaries to, sell, lease, license or otherwise surrender, relinquish or dispose of any assets or properties (other than among the Company and its direct and indirect wholly owned Subsidiaries) which, together with all other surrenders, relinquishments or dispositions by the Company and its Subsidiaries, have an aggregate fair market value exceeding $50,000 in the aggregate (other than sales of Hydrocarbons in the ordinary course of business); (e) The Company shall not, and shall not permit any of its Subsidiaries to, settle any Audit, make or change any Tax election or file any amended Tax Return or take any other action that would have the effect of increasing the Tax Liability of the Company or any of its Subsidiaries for any period after the Closing Date; (f) Except as otherwise permitted by this Agreement or as set forth in Section 5.2(f) of the Company Disclosure Schedule, the Company shall not, and shall not permit any of its Subsidiaries to, issue any securities (whether through the issuance or granting of options, warrants, rights or otherwise) except pursuant to existing obligations disclosed in the Company Disclosure Schedule, enter into any amendment of any term of any outstanding equity interest of the Company or of any of its Subsidiaries, fail to make any required contribution to any Company Benefit Plan, or increase compensation, bonuses (except for compensation or bonuses as set forth in Section 5.2(f) of the Company Disclosure Schedule) or other benefits payable to (except for payments pursuant to Company Benefit Plans qualified under Section 401(k) of the Code), or modify or amend any contractemployment, agreementchange of control, commitment severance, retention, consulting or arrangement similar plan, policy or agreement with any officer, Company Employee, manager, consultant or director of the Company or any of its Subsidiaries; (g) The Company shall not, and shall not permit any of its Subsidiaries to, change any method of accounting or accounting practice by the Company or any of its Subsidiaries, except for any such change required by GAAP; (h) The Company shall not, and shall not permit any of its Subsidiaries to, take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a “plant closing” or “mass layoff” (each as defined in the WARN Act) without in good faith attempting to comply with the WARN Act; (i) The Company shall not amend or otherwise change the terms of the Company Engagement Letter, except to the extent that any such amendment or change would result in terms more favorable to the Company; (j) Except as set forth in Section 5.2(j) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries shall become bound or obligated to participate in any operation, or consent to participate in any operation, with respect to any Oil and Gas Interests that will, in the aggregate with all other costs of such activities by the Company and its Subsidiaries, cost in excess of an amount equal to 10% of the amount budgeted in the 2007 or 2008 budgets, as applicable, in Section 5.2(j) of the Company Disclosure Schedule (the “Company Aggregate Cost Overrun”), and except for utilization of the Company Aggregate Cost Overrun, neither the Company nor any of its Subsidiaries shall, with respect to any of the foregoing; individual projects set forth in Section 5.2(j) of the Company Disclosure Schedule, become bound to or expend funds in excess of the amount budgeted for such project as set forth in Section 5.2(j) of the Company Disclosure Schedule, unless in any such case the operation is necessary to extend, preserve or maintain an Oil and Gas Interest; (ck) The Company and its Subsidiaries shall timely meet their royalty payment obligations in connection with their respective Oil and Gas Leases; (l) Except as contemplated by this Agreement, and those items contained set forth in Section 5.2(l) of the Company Proxy Statement to be filedDisclosure Schedule, the Company shall not, and shall not permit any of its Subsidiaries to, (i) issueenter into any futures, sellhedge, pledge swap, collar, put, call, floor, cap, option or dispose ofother contracts that are intended to benefit from or reduce or eliminate the risk of fluctuations in the price of commodities, including Hydrocarbons, interest rates or agree to issue, sell, pledge securities or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire enter into any fixed price commodity sales agreements; (m) The Company shall not, and shall not permit any of its Subsidiaries to, (i) adopt, amend (other than amendments that reduce the amounts payable by mergerthe Company or any Subsidiary, consolidationor amendments required by law to preserve the qualified status of a Company Benefit Plan or otherwise comply with ERISA, acquisition of stock or assets or otherwise) any corporation, partnership the Code or other business organization applicable law) or division assume an obligation to contribute to any employee benefit plan or arrangement of any type or collective bargaining agreement or enter into any employment, change of control, severance, retention, consulting or similar contract with any Person (including contracts with management of the material assets thereof; Company or any Subsidiaries that might require that payments be made upon consummation of the Transactions) or amend any such existing contracts to increase any amounts payable thereunder or benefits provided thereunder, (ii) engage in any transaction (either acting alone or in conjunction with any Company Benefit Plan or trust created thereunder) in connection with which the Company or any Subsidiary could be subjected (directly or indirectly) to either a civil penalty assessed pursuant to subsections (c), (i) or (l) of Section 502 of ERISA or a tax imposed pursuant to Chapter 43 of Subtitle D of the Code, (iii) incur terminate any Company Benefit Plan in a manner, or take any other action with respect to any Company Benefit Plan, that could result in the liability of the Company to any Person, (iv) take any action that could adversely affect the qualification of any Company Benefit Plan or its compliance with the applicable requirements of ERISA, (v) fail to make full payment when due of all amounts which, under the provisions of any Company Benefit Plan, any agreement relating thereto or applicable law, the Company or any Subsidiary is required to pay as contributions thereto or (vi) fail to file, on a timely basis, all reports and forms required by federal regulations with respect to any Company Benefit Plan; (n) The Company shall not, and shall not permit any of its Subsidiaries or third party service providers who directly employ personnel to provide services to the Company or its Subsidiaries and for which the Company and its Subsidiaries pay a fee based on the compensation paid to such personnel to, (i) approve an increase in salary for any Company Employee or consultant or (ii) terminate any Company Employee or consultant entitled to any severance, retention or similar payment upon such termination or any Company Employee who is a party to a Release; (o) The Company shall not, and shall not permit any of its Subsidiaries to, organize or acquire any Person that could become a Subsidiary; (p) Except as set forth in Section 5.2(p) of the Company Disclosure Schedule, the Company shall not, and shall not permit any of its Subsidiaries to, enter into any commitment or agreement to license or purchase seismic data; (q) The Company shall not adopt a plan of complete or partial liquidation, dissolution, or reorganization; (r) The Company shall not, and shall cause its Subsidiaries not to, (i) enter into any Exclusivity Arrangements that would be applicable after Closing Date, (ii) other than as set forth in Section 5.2(r)(ii) of the Company Disclosure Schedule or agreements of the type described in Section 4.17(a)(xiii) which are entered into in the ordinary course of business consistent with past practice, enter into any agreement that if entered into prior to the date hereof would be a Material Contract, (iii) amend or modify in any material respect or terminate any Material Contract, or (iv) waive, release or assign any material rights, claims or benefits of the Company or any Subsidiary under any Material Contract; (s) Except for the payment of any deductible under an existing insurance policy (or a commercially reasonable substitute for a company engaged in businesses similar to those of the Company) with respect to a claim that is being settled by such insurance company, settle, pay, compromise or discharge, any claim that (i) requires any payment by the Company or any Subsidiary, together with all other such payments by the Company and its Subsidiaries, in excess of $50,000 in the aggregate or (ii) involves any restrictions on the conduct of the Company’s, any Subsidiary’s or any of their respective affiliates’ business or other equitable remedies that materially adversely affect the business of the Company or any of its Subsidiaries with respect to or arising out of the Transactions; (t) (i) (A) Incur any indebtedness for borrowed moneyexcept trade debt in the ordinary course of business and debt pursuant to existing credit facilities or arrangements (except as set forth in Section 5.2(t) of the Company Disclosure Schedule), (B) issue or sell any debt securities or guarantee warrants or other rights to acquire any indebtedness debt securities of the Company or any Subsidiary, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than to others; a Subsidiary of the Company or (ivD) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person (other than obligations of the Company and any Subsidiary and the endorsements of negotiable instruments for collection in the ordinary course of business), or (ii) enter into or modify materially amend any contractagreement to effect any of the transactions prohibited by this Section 5.2(t); (u) fail to continuously maintain in full force and effect its current insurance or a commercially reasonable substitute for a company engaged in businesses similar to those of the Company and its Subsidiaries; or (v) The Company shall not, agreementand shall not permit any of its Subsidiaries to, commitment agree or arrangement with respect commit to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to that, between the date of this Agreement and the Closing Date: (a) , the business of the Company shall conduct its business be conducted only in, and operations only in the usual and Company shall not take any action except in, the ordinary course of business; (b) Except as contemplated by this Agreement, consistent in all material respects with past practice. The Company shall use its best efforts to preserve intact its business organizations, to keep available the services of their current officers, employees and consultants, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)preserve their present relationships with customers, suppliers and other persons with which they have significant business relations. By way of amplification and not limitation, the Company shall not not, except as set forth on SCHEDULE 6.1, between the date of this Agreement and the Closing Date, directly or indirectly indirectly, do or propose or agree to do any of the following: following without the prior written consent of AVS: (ia) amend or otherwise change its articles of incorporation or bylaws or equivalent organizational documents; (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 encumber any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest, of it or (ii) any of its assets; , tangible or intangible, except in the ordinary course of business consistent in all material respects with past practice; (iic) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeemotherwise, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; its capital stock; (cd) Except as contemplated by this Agreementreclassify, and those items contained in the Company Proxy Statement to be filedcombine, the Company shall not split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any interest in any 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, except in the material ordinary course of business, consistent with past practice, purchase any property or assets thereof; of any other Person, (iiiii) except in the ordinary course of business, incur any indebtedness for borrowed money, money or issue any debt securities (excluding Preferred Stock) or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any indebtedness Person, except endorsement of checks payable to others; the Company in the ordinary course of business, or make any loans or advances, or (iviii) enter into any Contract other than in the ordinary course of business, consistent with past practice; (f) increase the compensation payable or modify to become payable to its officers or employees, or, except as presently bound to do, grant any contractseverance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or other employees, or establish, adopt, enter into or amend or take any action to accelerate any rights or benefits which any collective bargaining, bonus, profit sharing, trust, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, commitment trust, fund, policy or arrangement with respect to any of for the foregoing; (d) the Company shall notify ADS promptly benefit of any material adverse event directors, officers or circumstance affecting ADS employees; (including g) take any action other than in the filing ordinary course of any material litigation against the Company or the existence of any dispute with any person or entity which involves business and in a reasonable likelihood of such litigation being commenced); (e) the Company shall comply manner consistent in all material respects with past practice with respect to accounting policies or procedures; (h) make any capital investments in excess of an aggregate of $10,000; (i) make any distributions to Shareholders, other than ordinary and customary salaries, expense reimbursements and scheduled payments on the Preferred Stock, owing to Robert W. Reitz and/or James John Berens, Jr., as referred to in Sectxxx 0.0 xxxxxx; (x) xxx, xischarge or satisfy any existing claims, liabilities or obligations (absolute, accrued, asserted or unassorted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent in all legal requirements material respects with past practice of due and contractual obligations applicable payable liabilities reflected or reserved against in its financial statements, as appropriate, or liabilities incurred after the date hereof in the ordinary course of business and consistent in all material respects with past practice; (k) increase or decrease in any material respect prices charged to its operations and business and pay all applicable taxescustomers, except for previously announced price changes, or take any other action which might reasonably result in any material increase in the loss of customers through non-renewal or termination of service contracts or other causes; andor (l) agree, in writing or otherwise, to take or authorize any of the foregoing actions or any action which would make any representation or warranty in ARTICLE V untrue or incorrect.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date: (a) The Company agrees that, between the Company shall conduct its business date of this Agreement and operations only in the usual and ordinary course of business; (b) Except Effective Time, except as contemplated otherwise expressly permitted by this Agreement, as required by applicable Law or as consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company will, and will cause each Company Subsidiary to (i) conduct its business in the ordinary course consistent with past practice, and (ii) use its commercially reasonable best efforts to keep available the services of the current officers, key employees and consultants of the Company and each Company Subsidiary and to preserve its business organization, and maintain its existing relations and goodwill of the Company and each Company Subsidiary with each of the customers, suppliers and other Persons with whom the Company or any Company Subsidiary has business relations. Without limiting the foregoing, and as necessary to effect the proposals contained an extension thereof, except as set forth in Section 6.1(a) of the Company Proxy Statement Disclosure Schedule, as otherwise expressly permitted by this Agreement, as required by applicable Law, as deemed necessary by the Company in good faith (after prior consultation with Parent) to preserve the viability of the business directly in response to pandemic conditions related to the coronavirus disease (COVID-19) or as consented to in writing by Parent (which consent shall not be filed (the “Company Proxy Statement”unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, take any of the following: following actions: (i) amend or otherwise change the Company Memorandum and Articles or equivalent organizational documents of the Company Subsidiaries; (ii) issue, deliver, sell, pledge, transfer, encumber or otherwise dispose of, or authorize, propose or agree to the issuance, delivery, sale, pledge, transfer, encumbrance or disposition of, any shares of any class or encumber any series of its assets; (ii) amend share capital or propose other Equity Interests, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to amend acquire, any shares of any class or series of its Certificate of Incorporation share capital or Bylaws; other Equity Interests; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside aside, establish a record date for, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares any of its share capital stock; (other than dividends paid by a Company Subsidiary to the Company or to any other Company Subsidiary wholly-owned by Company), or enter into any agreement with respect to the voting of its share capital; (iv) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire or offer to acquire acquire, directly or indirectly, any shares of its share capital stock or other securities; Equity Interests, or securities convertible or exchangeable into or exercisable for any of its share capital or other Equity Interests, except pursuant to the exercise or settlement of employee severance, retention, termination, change of control and other contractual rights existing on the date hereof on the terms in effect on the date hereof; (v) create acquire (including by merger, consolidation, or acquisition of stock or assets) any subsidiaries; interest in any Person or any division thereof or any assets thereof, or make any loan, advance or capital contribution to, or investment in, any Person or any division thereof, except any such acquisitions, loans, advances, contributions or investments that are consistent with past practice and are for consideration not in excess of $100,000 in any transaction or series of related transactions; (vi) redeem, repurchase, prepay, defease, cancel, incur or otherwise acquire, or modify the terms of, any Indebtedness or issue any debt securities or other Contracts evidencing Indebtedness or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person for Indebtedness, except for (A) Indebtedness incurred under the Company's or any Company Subsidiary's existing credit facilities as in effect on the date hereof in an aggregate amount not to exceed the maximum amount authorized under the Contracts evidencing such Indebtedness, (B) Indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices in a principal amount not in excess of $100,000 for all such Indebtedness by the Company and the Company Subsidiaries in the aggregate and (C) Indebtedness owed by any wholly-owned Company Subsidiary to the Company or any other wholly-owned Company Subsidiary; provided that any Indebtedness incurred or otherwise acquired, or modified, or assumed under this Section 6.1(a)(vi) shall be subject to prepayment without penalty at any time. (vii) grant any Lien on any of its assets, other than Liens granted in connection with any Indebtedness permitted under Section 6.1(a)(vi) or Permitted Liens or Liens that would not have a Company Material Adverse Effect)); (viii) sell, transfer, lease, license, assign or otherwise dispose of (including, by merger, consolidation, or sale of stock or assets) any entity, business, assets, rights or properties of the Company or any Company Subsidiary having a current value in excess of $200,000 in the aggregate; (ix) sell, transfer, assign, license, grant any other rights (including any covenant not to sxx, option, right of first refusal, and right of first offer) under, or otherwise dispose of (including, by merger, consolidation or sale of stock or assets), abandon, permit to lapse, permit to be subject to any Lien, or fail to maintain or protect in full force and effect (including any failure to protect the confidentiality of), any Company Intellectual Property, or disclose to any Person any confidential information (except for disclosure of confidential information in the ordinary course of business consistent with past practice and pursuant to appropriate confidentiality agreements, and non-exclusive licenses of Intellectual Property granted by the Company or any Company Subsidiary to its customers in the ordinary course of business consistent with past practice); (x) authorize, or make any commitment with respect to, any single capital expenditure in excess of $100,000 or capital expenditures for the Company and the Company Subsidiaries in excess of $200,000 in the aggregate; (xi) enter into any new line of business outside of its existing business segments; (xii) (A) grant or announce any stock option, equity, equity-linked or incentive awards, (B) subject to Section 6.12(c), grant or announce any increase in the salaries, bonuses or other compensation and benefits payable by the Company or any Company Subsidiary to any of the employees, officers, directors, shareholders or other service providers of the Company or any Company Subsidiary having a total annual base salary and incentive compensation opportunity in excess of $80,000, (C) hire (or enter into any employment or other compensatory agreements with) any employees or independent contractors having a total annual base salary and incentive compensation opportunity in excess of $80,000, (D) pay or agree to pay any pension, retirement allowance, termination or severance pay, bonus or other employee benefit not required by any existing Company Plan, or (E) enter into or adopt any new, or materially increase benefits under or renew, amend or terminate any existing Company Plan or benefit arrangement or any collective bargaining agreement; (xiii) communicate with employees of the Company or any Company Subsidiary regarding the compensation, benefits or other treatment that they will receive in connection with the Merger, unless any such communications are consistent with prior directives or documentation provided to the Company by Parent (in which case, the Company shall provide Parent with prior notice of and the opportunity to review and comment upon any such communications); (xiv) except as may be required by IFRS or as a result of a change in Law, make any change in accounting principles, policies, practices, procedures or methods; (xv) change any method of material Tax accounting, make or change any material Tax election, adopt or change any material accounting method, file any amended material Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any closing agreement with respect to any material Tax, surrender any right to claim a material Tax refund, fail to pay any material Taxes as they become due and payable, or take any other similar action relating to the filing of any material Tax Return or the payment of any material Tax; (xvi) settle, release, waive or compromise any pending or threatened Action of or against the Company or any of the Company Subsidiaries (A) for an amount in excess of $100,000 in the aggregate, (B) entailing the incurrence of (x) any obligation or liability of the Company or any Company Subsidiary in excess of such amount, or (y) obligations that would impose any material restrictions on the business or operations of the Company or any of the Company Subsidiaries, (C) involving the admission of any wrongdoing by the Company or any Company Subsidiaries; or (D) that is brought by or on behalf of any current, former or purported holder of any share capital or debt securities of the Company or any Company Subsidiary relating to the transactions contemplated by this Agreement; (xvii) (A) enter into (other than extensions at the end of a term in the ordinary course of business), terminate or materially amend or modify any contractCompany Material Contract, agreementVIE Contract or Contract that, commitment if in effect on the date hereof, would have been a Company Material Contract, or (B) waive any material default under, or release, settle or compromise any material claim against the Company or Company Subsidiary or liability or obligation owing to the Company or Company Subsidiary under any Company Material Contract or VIE Contract; (xviii) fail to maintain in full force and effect material insurance policies covering the Company and the Company Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practice; (xix) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the Merger or any merger or consolidation among wholly-owned Subsidiaries of the Company); (xx) take any action which would result in any of the conditions to the Merger set forth in Article VII not being satisfied or that would reasonably be expected to prevent, delay or impair the ability of the Company to consummate the Merger prior to the End Date; or (xxi) commit, authorize or agree to take any of the foregoing actions or enter into any letter of intent (binding or non-binding) or similar agreement or arrangement with respect to any of the foregoing; foregoing actions. (cb) Except as contemplated by Nothing contained in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the operations of the Company or any Company Subsidiary prior to the Effective Time. Prior to the Effective Time, each of Parent and the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, supervision over its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andrespective Subsidiaries’ respective operations.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date: (a) The Company agrees that, between the date of this Agreement and the earlier of the Director Appointment Date, the Effective Time and the valid termination of this Agreement in accordance with its terms, except as set forth in Section 5.1 of the Company Disclosure Schedule, as expressly permitted by any other provision of this Agreement or as required by Law, unless Parent shall otherwise agree in writing (which agreement may not be unreasonably withheld, delayed or conditioned), the Company will, and will cause each Company Subsidiary to conduct its business and operations only in the usual and ordinary course of business; (b) Except as contemplated by this Agreementbusiness consistent with past practice. Without limiting the foregoing, and as necessary to effect the proposals contained an extension thereof, except as set forth in Section 5.1 of the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule, as expressly permitted by any other provision of this Agreement or as required by Law, the Company shall not, and shall not permit any Company Subsidiary to, between the date of this Agreement and the earlier of the Director Appointment Date, the Effective Time and the valid termination of this Agreement in accordance with its terms, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Parent (which shall not be unreasonably withheld, delayed or conditioned): (i) amend or otherwise change the Company Certificate or Company Bylaws or any Company Subsidiaries’ certificate of incorporation or bylaws or equivalent organizational documents; (ii) issue, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of, or encumber other Equity Interests in, the Company or any Company Subsidiary of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including any such interest represented by Contract rights), of the Company or any Company Subsidiary, other than the issuance of Shares (X) upon the exercise of Company Options or, subject to Section 5.13, conversion of the 2009 Notes, in each case outstanding as of the date hereof in accordance with their terms or (Y) pursuant to, and in accordance with, the ESPP (or, if a Triggering Event (as defined in the Company Rights Agreement) by a party other than Parent or the Purchaser shall occur, the Company Rights); (iii) sell, lease, license or otherwise dispose of (in each case, other than in the ordinary course of business consistent with past practice) or create, extend, grant or issue any Lien over any of its properties or assets; ; (iiiv) amend transfer or propose license to amend its Certificate any Person any rights to any Company Intellectual Property or Software (other than in the ordinary course of Incorporation business consistent with past practice in connection with the license, distribution or Bylaws; sale of any of the Company Products or services); (iiiv) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iva combination thereof) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the foregoing; (c) Except as contemplated by this Agreement, and those items contained Company or another wholly-owned Company Subsidiary in the Company Proxy Statement ordinary course of business consistent with past practice) or enter into any agreement with respect to be filedthe voting or registration of its capital stock; (vi) reclassify, combine, split, subdivide or amend the Company shall not (i) issue, sell, pledge or dispose terms of, or agree to issueredeem, sellpurchase or otherwise acquire, pledge directly or dispose ofindirectly, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; , other Equity Interests or any other securities; (iivii) merge or consolidate the Company or any Company Subsidiary with any third party or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary; (viii) acquire (including by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any corporationinterest in any Person or any division thereof, partnership or any assets (other than acquisitions of assets in the ordinary course of business organization or division or the material assets thereof; consistent with past practice); (iiiix) incur any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), the obligations of any indebtedness Person (other than any wholly-owned Company Subsidiary in the ordinary course of business consistent with past practice) for borrowed money; (x) make any loans, advances or capital contributions to, or investments in, any other Person (other than (x) advancement of expenses to othersCompany Employees in connection with the performance of their duties, (y) to any wholly-owned Company Subsidiary, or (z) providing vendor financing in connection with the license, distribution or sale of Company Products, in each case, in the ordinary course of business consistent with past practice); (xi) terminate (other than by expiration in accordance with its terms), cancel, materially amend, renew (other any automatic renewal or exercise of any renewal option in accordance with its terms), or agree to any material change in or waiver under any Company Material Contract, or enter into any Contract that would constitute a Company Material Contract if in existence on the date hereof (other than in the ordinary course of business consistent with past practice, and with respect to Company Material Contracts described in Sections 3.13(a)(i), (ii), (iii), (iv), (v), (vi), (viii), (ix), or (x) only, in connection with the development, license, distribution or sale of any of the Company Products or services); (xii) make or authorize any capital expenditure in excess of the Company’s capital expenditure budget as disclosed to Parent prior to the date hereof; (xiii) except to the extent required by (i) applicable Law, (ii) the existing terms of any Company Benefit Plan described in Section 3.11(a) of the Company Disclosure Schedule or (iii) contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement as disclosed in Section 3.11(a) of the Company Disclosure Schedule: (A) increase the compensation or benefits payable or to become payable to its directors, officers or employees (except for increases of salary in the ordinary course of business consistent with past practice in salaries or wages of employees (other than officers at the level of the Company’s executive leadership team or higher) of the Company or any Company Subsidiary that do not result in a material increase in the aggregate compensation or benefits of the Company and the Company Subsidiaries taken as a whole); (B) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or employee of the Company or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; (C) take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan; or (ivD) terminate the employment of any officer other than for “cause”; (xiv) hire any Person for employment with the Company or any Company Subsidiary at a level of Vice President or higher (provided, that the Company and the Company Subsidiaries may hire any Person for employment at the Vice President level to fill any currently existing Vice President position that becomes vacant after the date hereof); (xv) (A) except in accordance with and as required by the 2009 Notes Indenture, pre-pay any indebtedness for borrowed money; or (B) waive, release, pay, discharge or satisfy any material claims, liabilities or obligations except in the ordinary course of business consistent with past practice and in accordance with their terms; (xvi) make any change in material accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (xvii) waive, release, or assign any material claims; (xviii) compromise, settle or agree to settle any suit, action, claim, proceeding or investigation (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby) other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of monetary damages not in excess of $1,000,000 individually or $10,000,000 in the aggregate, and in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any Company Subsidiary; (xix) (A) make or change any material Tax election, change any annual Tax accounting period, change any method of Tax accounting, or enter into or modify any contract, Tax allocation agreement, commitment Tax sharing agreement or arrangement Tax indemnity agreement, or (B) settle any Tax claim, audit or assessment, or surrender any right to claim a Tax refund, in each case, in an amount in excess of $1,000,000, and in the aggregate, in an amount in excess of $10,000,000; (xx) amend or modify, or propose to amend or modify, or otherwise take any action under, the Company Rights Agreement; (xxi) take any action to exempt or make not subject to (i) the provisions of Section 203 of the DGCL, (ii) any other state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares or (iii) the Company Rights Agreement, any Person (other than Parent, the Purchaser and any Parent Subsidiary) or any action taken thereby, which Person or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom; (xxii) with respect to Company Intellectual Property, (i) encumber, impair, abandon, fail to diligently maintain, transfer or otherwise dispose of any right, title or interest of the Company or any of the foregoing; Company Subsidiaries in any Company Intellectual Property (dother than in the ordinary course of business consistent with past practice, including abandonment of any Intellectual Property which the Company, in its reasonable business judgment, believes is not material), or (ii) divulge, furnish to or make accessible any Trade Secrets within the Company shall notify ADS promptly of Intellectual Property to any material adverse event or circumstance affecting ADS (including Person who is not subject to an obligation to maintain the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood confidentiality of such litigation being commenced)Trade Secrets; or (exxiii) agree in writing or otherwise to take any of the Company shall comply actions described in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andthe foregoing clauses of this Section 5.1.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Shareholders agree that, between the date of this Agreement and the Closing Date: , unless the Purchaser shall otherwise agree in writing, (ax) the businesses of the Company shall be conducted only in, and the Company shall not take any action except in the ordinary course of business consistent with past practice and (y) the Company shall conduct use all reasonable efforts to keep available the services of such of the current officers, significant employees and consultants of the Company and to preserve the current relationships of the Company with such of the corporate partners, customers, suppliers and other Persons with which the Company has significant business relations in order to preserve substantially intact its business organization. By way of amplification and operations only in the usual and ordinary course of business; (b) Except as contemplated by this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)not limitation, the Company shall not not, between the date of this Agreement and the Closing Date, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of the Purchaser: (ia) amend or otherwise change its Charter or Bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license or encumbrance of (i) any shares of capital stock of the Company of any class, or encumber securities convertible into or exchangeable or exercisable for any shares of its such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company (unless upon the exercise of any option, warrant or other rights existing on the date hereof and reflected on Schedule II hereto) or (ii) any property or assets of the Company except sales of inventory in the ordinary course of business consistent with past practice; (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or Person or any division thereof; (ii) amend incur any indebtedness for borrowed money or propose issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person for borrowed money or make any loans or advances material to amend its Certificate the business, assets, liabilities, financial condition or results of Incorporation or Bylawsoperations of the Company; (iii) splitterminate, combine cancel or reclassify request any outstanding shares of its capital stockmaterial change in, or agree to any material change in, any Material Contract or License Agreement; (iv) make or authorize any capital expenditure, other than capital expenditures in the ordinary course of business consistent with past practice that have been budgeted for fiscal year 2000 and disclosed in writing to the Purchaser and that are not, in the aggregate, in excess of $10,000 for the Company; or (v) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 6.01(c); (d) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock; ; (ive) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock stock; (f) amend the terms of, repurchase, redeem or otherwise acquire, any of its securities or any securities or propose to do any of the foregoing; (g) increase the compensation payable or to become payable to its directors, officers, consultants or employees, grant any rights to severance or termination pay to, or enter into any employment or severance agreement which provides benefits upon a change in control of the Company that would be triggered by the transactions contemplated hereby with any director, officer, consultant or other securities; (v) create any subsidiaries; (vi) employee of the Company who is not currently entitled to such benefits, establish, adopt, enter into or modify amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, consultant or employee of the Company, except to the extent required by applicable Law or the terms of a collective bargaining agreement, or enter into or amend any contract, agreement, commitment or arrangement between the Company and any of the Company's directors, officers, consultants or employees; (h) 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 and consistent with past practice of liabilities reflected or reserved against on the balance sheet of the Company dated as of June 30, 2000 previously presented to the Purchaser and only to the extent of such reserves; (i) make any change with respect to the Company's accounting policies, principles, methods or procedures, including, without limitation, revenue recognition policies, other than as required by Israeli GAAP; (j) make any material Tax election or settle or compromise any material Tax liability; (k) permit any insurance policy naming it as a beneficiary or a loss payee to be cancelled or terminated, except in the ordinary and usual course of business; (l) maintain the books and records of the foregoing; Company in a manner not consistent with past business practices; (cm) Except take any action which would materially adversely affect the goodwill of its suppliers, customers and others with whom it has business relations; (n) fail to pay and perform all of its debts, obligations and liabilities as contemplated by this Agreementand when due and all leases, agreements, contracts and those items contained other commitments to which it is a party in accordance with the Company Proxy Statement terms and provisions thereof; (o) fail to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations Laws that may be applicable to its operations and business and pay all applicable taxesbusiness; andor (p) authorize or enter into any formal or informal agreement or otherwise make any commitment to do any of the foregoing or to take any action which would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or prevent the Company from performing or cause the Company not to perform its covenants hereunder or result in any of the conditions to the Closing set forth herein not being satisfied.

Conduct of Business by the Company Pending the Closing. The Company covenants Sellers covenant and agrees that prior to agree that, during the Closing Date: (a) period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, unless Buyer shall otherwise agree in writing, the Sellers shall cause the Company shall to, conduct its business only in, and operations only in the usual and Sellers shall cause the Company not to, take any action except in, the ordinary course of businessbusiness and in a manner consistent with past practice; (b) Except and the Sellers shall cause the Company to use all reasonable commercial efforts to preserve substantially intact the business organization of the Company, to keep available the services of the present officers, employees and consultants of the Company and to preserve the present relationships of the Company with customers, suppliers and other persons with which the Company has business relations. By way of amplification and not limitation, except as contemplated by this Agreement, and as necessary to effect the proposals contained in Sellers shall cause the Company Proxy Statement to be filed (not to, during the “Company Proxy Statement”)period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the Company shall not directly or indirectly do do, or propose to do, any of the following: following without the prior written consent of Buyer: (ia) amend or otherwise change the Memorandum or Articles of Association of the Company; (1) (b) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including, without limitation, any phantom interest) in the Company; (c) sell, pledge, dispose of or encumber any assets (tangible or intangible) of its assets; the Company except for (i) dispositions of obsolete or worthless assets and (ii) amend sales of immaterial assets not in excess of $10,000 in the aggregate; (i) declare, set aside, make or propose to amend pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its Certificate of Incorporation or Bylaws; capital stock (iiiii) split, combine or reclassify any outstanding of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or declare(iii) amend the terms or change the period of exercisability of, set aside or pay any dividend or other distribution payable in cashpurchase, stockrepurchase, property redeem or otherwise with respect acquire, any of its securities including without limitation, Ordinary Shares or any option, warrant or right, directly or indirectly, to acquire shares of its capital stock; (iv) redeemOrdinary Shares, purchase or acquire or offer propose to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to do any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not ; (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any corporation, partnership or other business organization or division or the material assets thereof; (iiiii) incur any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any indebtedness to othersperson or, except in the ordinary course of business consistent with past practice, make any loans or advances; or (iviii) enter into or modify amend any material contract or agreement; (iv) authorize any capital expenditures or purchase of fixed assets which are, in the aggregate, in excess of $10,000 for the Company; or (v) enter into or amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 5.1(e); (f) increase the compensation payable or to become payable to its officers or employees, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director, officer or other employee of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees, except, in each case, as may be required by law; (g) take any action to change accounting policies or procedures (including, without limitation, procedures with respect to revenue recognition, payments of accounts payable and collection of accounts receivable); (h) make any material tax election inconsistent with past practice or settle or compromise any material federal, state, local or foreign tax liability or agree to an extension of a statute of limitations; (i) 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 and consistent with past practice of liabilities reflected or reserved against in the Accounts or incurred in the ordinary course of business and consistent with past practice; or (j) take, or agree in writing or otherwise to take, any of the foregoing; actions described in Sections 5.1 (da) through (i) above, or any action which would make any of the Company shall notify ADS promptly representations or warranties of any material adverse event the Sellers contained in this Agreement untrue or circumstance affecting ADS (including incorrect or prevent the filing of any material litigation against Sellers from performing or cause the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable Sellers not to perform its operations and business and pay all applicable taxes; andcovenants hereunder.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: Effective Time, except as set forth in Section 5.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, unless Parent shall consent in writing, (a1) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business consistent with past practice and (2) the Company shall conduct use its reasonable best efforts to keep available the services of such of the current officers, significant employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with such of the customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations in order to preserve substantially intact its business organization. By way of amplification and operations only not limitation, except as set forth in Section 5.01 of the usual and ordinary course of business; (b) Except Disclosure Schedule or as contemplated by any other provision of this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not not, and shall neither cause nor permit any Company Subsidiaries or any of the Company's affiliates (over which it exercises control), or any of its or their officers, directors, employees and agents (in each case, in their capacities as such) to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: , without the prior written consent of Parent: (ia) amend or otherwise change its charter or bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of of, grant, transfer, lease, license, guarantee, encumber, or encumber authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, (i) any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock of the Company or any Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Company Subsidiary (except for the issuance of any shares of capital stock issuable pursuant to the exercise of any Company Options or Company Warrants outstanding on the date of this Agreement); or (ii) any property or assets of the Company or any Company Subsidiary, except in issuing Company Common Stock as required upon the exercise of a Company Warrant by a holder, and except in all cases in the ordinary course of business and in a manner consistent with past practice; provided that the aggregate amount of any such sale or disposition (other than a sale or disposition of products or other inventory in the ordinary course of business consistent with past practice, as to which there shall be no restriction on the aggregate amount), or pledge, grant, transfer, lease, license, guarantee or encumbrance of such property or assets of the Company or any Company Subsidiary shall not exceed $25,000; (c) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock, other than dividends paid by any of the wholly owned Company Subsidiaries to the Company in the ordinary course of business consistent with past practice and other than the Cash Dividend; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization, person or any division thereof or any assets, other than (x) acquisitions of any assets in the ordinary course of business consistent with past practice that are not, in the aggregate, in excess of $50,000 or (y) purchases (whether for cash or pursuant to an exchange) of inventory for resale in the ordinary course of business and consistent with past practice; (ii) 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 for borrowed money, except for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice; (iii) terminate, cancel or request any material change in, or agree to any material change in any Material Contract or enter into any contract or agreement material to the business, results of operations or financial condition of the Company and the Company Subsidiaries taken as a whole, in either case other than in the ordinary course of business, consistent with past practice; (iv) redeemmake or authorize any capital expenditure, purchase other than as set forth in Section 5.01(e)(iv) of the Disclosure Schedule; or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.01(e); (f) increase the compensation payable or to become payable to its officers or employees, except for increases in accordance with past practices or with the prior approval of Parent, which shall not be unreasonably withheld, in salaries or wages of employees of the Company or any Company Subsidiary who are not officers of the Company, or grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option (including, without limitation, the granting of stock options, stock appreciation rights, stock option appreciation unit awards, performance awards or performance restricted stock awards), stock purchase, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except as contemplated by this Agreement or to the extent required by applicable Law or the terms of a collective bargaining agreement or a contractual obligation existing on the date hereof; (g) take any action with respect to modifying accounting policies or procedures, other than actions in the ordinary course of business, consistent with past practice or the requirements of U.S. GAAP and as advised by the Company's regular certified independent public accountants; (h) waive, release, assign, settle or compromise any material claims or litigation involving money damages in excess of $25,000, except for claims asserted by the Company or the applicable Company Subsidiary; (i) make any material Tax election or settle or compromise any material federal, state, local or foreign Tax liability; (j) authorize or enter into any formal or informal agreement or otherwise make any commitment to do any of the foregoing; (k) take any action that will be likely to result in the representations and warranties set forth in Article III becoming false or inaccurate in any material respect (or, with respect to any of the foregoing; representation and warranty already qualified by materiality, false or inaccurate in any respect); (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (ivl) enter into or modify carry out any contract, agreement, commitment other transaction other than in the ordinary and usual course of business or arrangement with respect other than as permitted pursuant to the other clauses in this Section 5.01; (m) take any action or fail to take any action that could reasonably be expected to have or result in a Material Adverse Effect; or (n) permit or cause any Company Subsidiary to do any of the foregoing or agree or commit to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date: (a) The Company agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 9.1 (the "Interim Period"), except (i) as set forth in Section 6.1 of the Company shall conduct its business and operations only in the usual and ordinary course of business; Disclosure Letter, (bii) Except as expressly contemplated or permitted by this Agreement, and (iii) as necessary may be required by Law or (iv) as consented to effect the proposals contained in the Company Proxy Statement to writing by Parent (which consent shall not be filed (the “Company Proxy Statement”unreasonably withheld, delayed or conditioned), the Company (A) shall and shall cause each of the Company Subsidiaries to, conduct its business in all material respects in the ordinary course of business consistent with past practice and (B) agrees that during the Interim Period the Company shall not, and shall not directly or indirectly do permit any of the following: Company Subsidiary to: (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend its Certificate the Company Governing Documents, or the articles of Incorporation incorporation, bylaws or Bylaws; equivalent organizational documents of any Company Subsidiary (including by merger, consolidation or otherwise) or waive the stock ownership limit under the Company Governing Documents or exempt any "Person" from the "Aggregate Share Ownership Limit" or the "Common Share Ownership Limit" or establish or increase an "Excepted Holder Limit," as such terms are defined in the Company Charter; (ii) split, combine, subdivide, consolidate or reclassify any shares of capital stock of the Company or any Company Subsidiary; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside for payment or pay any dividend on or make any other distribution payable actual, constructive or deemed distributions (whether in cash, stock, property or otherwise otherwise) with respect to any shares of capital stock of the Company or any Company Subsidiary or other equity securities or ownership interests in the Company or any Company Subsidiary or otherwise make any payment to its capital stockor their stockholders or other equityholders in their capacity as such, other than for (A) the authorization by the Company of daily dividends, payable monthly in accordance with past practice for the period up to the Closing Date (including any prorated amount from the date of the payment of the last such dividend through the Closing Date) at a rate not to exceed an annual rate of $0.65 per share of Company Common Stock, (B) the declaration and payment of dividends or other distributions to the Company by any directly or indirectly wholly owned Company Subsidiary and (C) dividends or other distributions by HPC REIT (x) to Xxxx OFC Houston TX, LLC and (y) with respect to the preferred members of HPC REIT, in strict accordance with the requirements of its organizational documents, as in effect on the date hereof, to make distributions to its preferred members; provided, however, that, notwithstanding the restrictions on dividends and other distributions in this Agreement, including this Section 6.1(a)(iii), the Company shall, with Parent's consent (which consent shall not be unreasonably withheld or delayed), make any applicable Special Distribution, it being understood that, except for a Special Distribution paid solely on account of increases in rental income with respect to the Company Properties in the ordinary course of business (including prepaid rent payments), Parent may condition its consent on an equitable adjustment to the Merger Consideration equal to (x) a reduction of the Per Share Cash Amount (but in no case below zero) by the per share amount of the Special Distribution and (y) a reduction of the Exchange Ratio in an amount equal to (1) the per share amount of the Special Distribution divided by (2) the closing price per Parent Common Share on the New York Stock Exchange (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source mutually selected by Parent and the Company) for the last full trading day ending immediately prior to the date of this Agreement; (iv) redeem, purchase or acquire otherwise acquire, or offer propose to redeem, purchase or otherwise acquire, any shares of capital stock of the Company or any Company Subsidiary or Company Equity Interests, except with respect to the repurchase or redemption of shares of Company Common Stock in accordance with the Company Share Redemption Program as set forth on Section 6.1(a)(iv) of the Company Disclosure Letter; (v) except for issuances by a wholly owned, directly or indirectly, Company Subsidiary to the Company or another existing wholly owned Company Subsidiary, or as otherwise contemplated in Section 6.1(a)(v) of the Company Disclosure Letter, issue, sell, pledge, dispose, encumber or grant, or authorize or propose the issuance, sale, pledge, disposition, encumbrance or grant of, any Company Equity Interests, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; Company Equity Interests; (vi) except as required by any of the Company Leases set forth in Section 6.1(a)(vi) of the Company Disclosure Letter, acquire or agree to acquire (including by merger, consolidation or acquisition of stock or assets) any real property, personal property (other than personal property at a total cost of less than $1,000,000 in the aggregate), corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof, except (A) acquisitions by the Company or any wholly owned Company Subsidiary of or from an existing wholly owned Company Subsidiary or joint venture partners pursuant to existing purchase rights or options as described on Section 6.1(a)(vi) of the Company Disclosure Letter or (B) the pending acquisitions set forth on Section 6.1(a)(vi) of the Company Disclosure Letter (the "Company Pending Acquisitions"); (vii) sell, pledge, lease, assign, transfer, dispose of or encumber, or effect a deed in lieu of foreclosure, or agree to do any of the foregoing, with respect to, any property or assets, except (A) as set forth on Section 6.1(a)(vii) of the Company Disclosure Letter, (B) for pledges and encumbrances on property and assets (x) in the ordinary course of business consistent with past practices and that would not be material to such property and assets and (y) pursuant to the Company's existing revolving credit facility or (C) sales to joint venture partners pursuant to existing purchase rights or options as described on Section 6.1(a)(vii) of the Company Disclosure Letter; (viii) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any debt securities of the Company or any of the Company Subsidiaries or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Company Subsidiary), except (A) Indebtedness in a principal amount of not more than $10,000,000 in the aggregate that is incurred under the Company's existing revolving credit facility for working capital purposes in the ordinary course of business consistent with past practice or such additional amounts to fund any Company Pending Acquisitions or (B) to refinance at maturity any existing Indebtedness of the Company or the Company Subsidiaries to the extent that the aggregate principal amount of such Indebtedness is not increased as a result thereof or the terms of such Indebtedness do not otherwise materially adversely affect the Company, any Company Subsidiary or Parent; (ix) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, Affiliates, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any "keep well" or similar agreement to maintain the financial condition of another entity, other than (A) by the Company or a wholly owned Company Subsidiary to the Company or a wholly owned Company Subsidiary or (B) (1) loans or advances required to be made under any of the Company Leases or Master Leases or (2) the loans or advances (including those to non-Affiliate tenants) set forth on Section 6.1(a)(ix) of the Company Disclosure Letter; (x) enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any rights or claims under, any Company Material Contract (or any contract that, if existing as of the date hereof, would be a Company Material Contract), other than (A) any termination or renewal in accordance with the terms of any existing Company Material Contract that occurs automatically without any action (other than notice of renewal) by the Company or any Company Subsidiary, (B) the entry into any modification or amendment of, or waiver or consent under, any mortgage or related agreement to which the Company or any Company Subsidiary is a party as required or necessitated by this Agreement or the Transactions; provided that any such modification, amendment, waiver or consent does not increase the principal amount or interest payable thereunder or otherwise materially adversely affect the Company, any Company Subsidiary or Parent or (C) as may be reasonably necessary to comply with the terms of this Agreement; (xi) except as set forth on Section 6.1(a)(xi) of the Company Disclosure Letter, enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any rights or claims under, any Company Lease (or any lease for real property that, if existing as of the date hereof, would be a Company Lease) or any Master Lease; (xii) waive, release or assign any material rights or claims or make any payment, direct or indirect, of any liability of the Company or any Company Subsidiary before it is due in accordance with its terms; (xiii) settle or compromise, or offer or propose to settle, (A) any legal action, suit, investigation, arbitration or proceeding, in each case made or pending against the Company or any of the Company Subsidiaries involving an amount paid in settlement in excess of, $500,000 individually or $1,000,000 in the aggregate or which would include any non-monetary relief, and (B) any legal action, suit, investigation, arbitration or proceeding involving any present, former or purported holder or group of holders of Company Common Stock, other than in accordance with Section 7.3; (xiv) (A) hire or terminate any officer or director of the Company or any Company Subsidiary or promote or appoint any natural person to a position of officer or director of the Company or any Company Subsidiary, or (B) enter into, or adopt or become liable with respect to (or agree to any of the foregoing) any employment, bonus, severance or retirement contract or other Benefit Plan or other compensation or employee benefits arrangement; (xv) fail to maintain all financial books and records in all material respects in accordance with GAAP (or any interpretation thereof) or make any change to its methods of accounting in effect at December 31, 2013, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP (or any interpretation thereof) or the SEC; (xvi) enter into any new line of business; (xvii) subject to Section 6.1(a)(iii), knowingly take any action, or knowingly fail to take any action, which action or failure would reasonably be expected to cause (A) the Company or HPC REIT to fail to qualify as a REIT or (B) any Company Subsidiary (other than HPC REIT) (1) to cease to be treated as any of (x) a partnership or disregarded entity for U.S. federal income tax purposes or (y) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be or (2) that is not treated as a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code as the date hereof to be so treated; (xviii) (A) make or rescind any material election relating to Taxes, (B) file an amendment to any material Tax Return, or (C) settle or compromise any material federal, state, local or foreign Tax liability, or waive or extend the statute of limitations in respect of such material Taxes; provided, however, if an action described in clause (A), (B) or (C) is required by Law or is necessary to preserve the status and taxation of the Company or HPC REIT as a REIT under the Code, the Company shall (1) promptly notify Parent, (2) make reasonable effort to permit Parent to review and comment on such action, and (3) take such action; (xix) authorize or adopt, or publicly propose, a plan of merger, complete or partial liquidation, consolidation, recapitalization or bankruptcy reorganization, except by a Company Subsidiary in connection with any Company Pending Acquisition permitted pursuant to Section 6.1(a)(vi) in a manner that would not reasonably be expected (A) to be materially adverse to the Company or (B) to prevent or impair the ability of the Company to consummate the Merger; (xx) amend or modify the compensation terms or any other obligations of the Company contained in the engagement letters entered into with the Company Financial Advisor or the Persons listed on Section 4.26 of the Company Disclosure Letter, in a manner materially adverse to the Company, any Company Subsidiary or Parent or engage other financial advisors in connection with the transactions contemplated by this Agreement; (xxi) make any payment, distribution or transfer of assets to any member of the Company Advisor Group except in such amount and as expressly contemplated by this Agreement, the Termination Agreement or Section 4.23 of the Company Disclosure Letter; (xxii) take any action (or omit to take any action) if such action (or omission) would reasonably be expected to result in any of the conditions to the Merger set forth in Section 8.1 and Section 8.2 to not be satisfied; or (xxiii) authorize, or enter into any contract, agreement, commitment or arrangement with respect to do any of the foregoing; (c) Except as contemplated by . Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 6.1(a)(iii), Section 6.1(a)(xvii) and those items contained Section 6.1(a)(xviii), nothing in this Agreement shall prohibit the Company from taking any action, at any time or from time to time, that in the Company Proxy Statement to be filed, reasonable judgment of the Company Board, upon advice of counsel to the Company, is reasonably necessary for each of the Company or HPC REIT to maintain its qualification as a REIT under the Code for any period or portion thereof ending on or prior to the Effective Time or to eliminate or reduce entity level income or excise Taxes under Sections 856, 857, 860 and 4981 of the Code (and similar provisions of state or local Tax Law) for any period or portion thereof ending on or prior to the Closing Date. (b) The Company shall not (i) issueuse its commercially reasonable efforts to obtain the opinions of counsel referred to in Section 8.2(e) and Section 8.3(f), sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire deliver to Xxxxxxxx & Worcester LLP and Xxxxxx, Xxxxxxx & Xxxxxx, LLP an officer's certificate, dated as of the Closing Date and signed by an officer of the Company, containing representations of the Company as shall be reasonably necessary or appropriate to enable Xxxxxxxx & Worcester LLP and Xxxxxx, Xxxxxxx & Xxxxxx, LLP to render the opinion described in Section 8.2(f) and Section 8.3(f) respectively, on the Closing Date (by merger, consolidation, acquisition of stock or assets or otherwisea "Company Tax Representation Letter") any corporation, partnership or other business organization or division or the material assets thereof; and (iii) incur any indebtedness for borrowed moneydeliver to Xxxxxx, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contractXxxxxxx & Xxxxxx, agreementLLP an officer's certificate, commitment or arrangement with respect to any dated as of the foregoing; (d) Closing Date and signed by an officer of the Company, containing representations of the Company as shall notify ADS promptly of any material adverse event be reasonably necessary or circumstance affecting ADS (including appropriate to enable Xxxxxx, Xxxxxxx & Xxxxxx, LLP to render the filing of any material litigation against opinion described in Section 8.2(e) on the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andClosing Date.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (1) as set forth in Section 5.1 of the Closing Date: Company Disclosure Letter, (2) as specifically permitted by this Agreement, (3) as required by Law (including, for the sake of clarity, any requirement of the SEC, ISA or IFRS) or Order or (4) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall, and shall cause each Company Subsidiary to (i) conduct its and their respective businesses in the ordinary course of business consistent with past practice and (ii) preserve its and their present business organizations, its and their assets and properties in good repair and condition and its and their present relationships with customers, distributors, licensors, licensees, lessors, suppliers and other Persons with whom it and they have material business relations and use commercially best efforts to keep available the services of its and their current officers and employees; provided, however, that no action that is specifically permitted by any of clauses (a) through (w) of this Section 5.1 shall be deemed a breach of this clause (i), and (ii) shall not, and shall not permit any Company Subsidiary to: (a) declare or pay any dividends on or make any distribution with respect to its outstanding shares or ADSs (whether in cash, assets, shares or other securities of the Company or any Company Subsidiary), except dividends and distributions by a wholly owned Company Subsidiary to the Company or another wholly owned Company Subsidiary; (b) split, combine, reduce or reclassify any of its share capital, except for any such transaction by a wholly owned Company Subsidiary that remains a wholly owned Company Subsidiary after consummation of such transaction; (c) except as required by the terms of any Company Plan as in existence as of the date hereof: (i) grant, provide, amend or increase any retention or change in control bonus to any employee, director or independent contractor of the Company or any Company Subsidiary; (ii) grant, provide, amend or increase any severance payments or benefits or termination pay to any employee or independent contractor of the Company or any Company Subsidiary; (iii) increase the compensation payable or to become payable to any employee or independent contractor of the Company or any Company Subsidiary (it being understood that payment of bonuses and other incentive compensation as required pursuant to the terms of any Company Plan as in existence as of the date hereof shall conduct not be considered to be an increase in compensation payable); (iv) establish, adopt, enter into, materially amend or terminate any collective bargaining agreement; (v) establish, adopt, enter into, amend or terminate any material Company Plan (or any arrangement that would be a material Company Plan if in effect on the date hereof), other than ordinary course annual renewals of or modifications to Company Plans that are health and welfare plans consistent with past practice that do not materially increase the cost to the Company of maintaining such Company Plan or the benefits provided thereunder; (vi) accelerate the vesting, exercisability or payment date or waive any performance or vesting criteria of any Company Equity Awards or accelerate the vesting, exercisability or payment date or waive any performance or vesting criteria of any payment or benefit, or the funding of any payment or benefit, payable or to become payable under a Company Plan (other than acceleration of any Company Equity Awards specifically permitted by the terms of this Agreement); (vii) hire any employee or independent contractor (a) to perform the job duties of a sales representative or (b) at the level of Vice President or above; (viii) announce, implement or effect any facility closing, mass lay-off programs, broad-based early retirement programs, broad-based severance programs or material reductions in force affecting employees of the Company or any Company Subsidiary; (ix) forgive any loans or advances to employees or independent contractors of the Company or any Company Subsidiary, or any directors of the Company or any of their respective affiliates, or change its business and operations only existing borrowing or lending arrangements for or on behalf of any of such Persons pursuant to an employee benefit plan or otherwise, except in the usual ordinary course of business consistent with past practice or as required under the terms of such employee benefit plan, notwithstanding the foregoing provisions of this Section 5.1(c), the Company will be permitted to engage in compensation reviews and make adjustments to employee salary or wage rates, bonus, equity compensation and employee benefits (including the grant of Company equity awards in connection with new hires, promotions and the annual refresh), in each case, in the ordinary course of business consistent with past practice and provided, that, with respect to employees of the Company who are executive officers, any bonus and equity compensation targets are approved by the Company’s shareholders in the ordinary course of business; ; (bd) Except make any material change in its financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as contemplated required by this AgreementLaw, and as necessary to effect IFRS, SEC policy or ISA policy; (e) enter into a Contract providing for the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)acquisition, the Company shall not directly or indirectly do (including by merger, consolidation, or acquisition of shares or assets or any other business combination) of any material corporation, partnership, other business organization or any division thereof; (f) amend the Charter Documents of the following: Company or any Company Subsidiary; (ig) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, restructuring or other reorganization of the Company or any Company Subsidiary or alter through merger, liquidation, reorganization or restructuring the corporate structure of the Company or any Company Subsidiary; (h) except as permitted by Section 5.1(c), issue, deliver, grant, sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockencumber, or declaresubject to any Lien (other than Permitted Liens) any shares or voting securities of the Company or any Company Subsidiary or any securities convertible into or exchangeable for any such shares or voting securities, set aside or pay any dividend rights, warrants or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer options to acquire any such shares or voting securities or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than (i) issuances of its capital stock Company Shares upon exercise of Company Options, or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement the vesting and settlement of Company RSUs in accordance with respect to any their respective terms and the terms of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in (ii) transactions between the Company Proxy Statement to be filed, the and a wholly owned Company shall not Subsidiary or between wholly owned Company Subsidiaries; (i) issuedirectly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) acquisitions of Company Shares tendered by holders of Company Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (ii) the acquisition by the Company of Company Equity Awards in connection with the forfeiture or cancellation of such awards and (iii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries; (j) redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (i) any Indebtedness among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries, (ii) guarantees by the Company of Indebtedness of Company Subsidiaries or guarantees by Company Subsidiaries of Indebtedness of the Company or any Company Subsidiary, which Indebtedness is incurred in the ordinary course of business consistent with past practice and (iii) in connection with the refinancing of any outstanding Indebtedness at or in anticipation of its maturity on the same or similar terms; (k) sell, pledge lease, license, transfer, exchange, swap or otherwise dispose of, or agree subject to issue, sell, pledge or dispose ofany Lien (other than Permitted Liens), any additional shares ofof its properties, rights or assets, except for (i) sales of inventory or Company Products in the ordinary course of business, or any optionsdispositions of obsolete or worthless equipment, warrantsin the ordinary course of business, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition non-exclusive licenses of stock or assets or otherwise) any corporation, partnership or other Intellectual Property in the ordinary course of business organization or division or the material assets thereof; consistent with past practice and (iii) incur transactions among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries; (l) settle, pay, discharge or satisfy any indebtedness for borrowed moneymaterial Actions other than (i) the payment, issue any debt securities discharge or guarantee any indebtedness satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Most Recent Company Balance Sheet up to others; the amount so reflected or reserved, or (ivii) those that do not (A) impose any material injunctive relief on the Company or any Company Subsidiary and (B) involve the payment of money greater than the applicable amount set forth on Section 5.1(l) of the Company Disclosure Letter in excess of existing insurance coverage; (m) institute any Action by the Company or any Company Subsidiary, other than for collections in the ordinary course of business consistent with past practice; (n) make or change any material Tax election; change any Tax accounting period with respect to a material Tax or material method of Tax accounting, or settle or compromise any material Tax liability, file any amendment to a federal, state, or non-U.S. income Tax Return or any other material Tax Return, in each case, except in the ordinary course of business or as required by applicable Law; (o) enter into any Contract that if entered into prior to the date of this Agreement would have been a Company Material Contract, or modify modify, amend, waive, release or assign any contract, agreement, commitment material rights or arrangement with respect claims under any other Company Material Contract or any Contract that if entered into prior to the date of this Agreement would have been a Company Material Contract; (p) enter into any Contract that materially limits or purports to materially limit the ability of the foregoing; Company or any Company Subsidiary, or, upon the consummation of the Merger, Parent or any Parent Subsidiary, Company or any Company Subsidiary, to compete with any Person, in any line of business or sell, supply or distribute any product or service, in each case, in any geographic area or during any period of time; (dq) fail to take any action necessary or advisable to protect or maintain the Company shall notify ADS promptly Owned Intellectual Property, including preserving the patent applications set forth on Section 5.1(q) of any material adverse event or circumstance affecting ADS the Company Disclosure Letter by the relevant deadline (including developing the specifications and drawings for such applications) (excluding commercially reasonable routine patent and trademark prosecution and maintenance actions, such as abandonment and claim narrowing conducted in the ordinary course of business) as to which the Company or any Company Subsidiary has the necessary prosecution rights, in each case, that is material to the conduct of the business of the Company and any Company Subsidiary as currently conducted and planned by the Company to be conducted, including the prosecution of all pending applications for patents and trademarks, the filing of any documents or other information or the payment of any maintenance or other fees related thereto (excluding commercially reasonable routine patent and trademark prosecution and maintenance actions, such as abandonment and claim narrowing conducted in the ordinary course of business); (r) fail to renew or maintain material litigation against existing insurance policies or comparable replacement policies; (s) call or convene any general or special meeting of the Company Shareholders, or seek any action or other approval of or from the Company Shareholders with respect to a Competing Proposal or any action prohibited by this Section 5.1; (t) announce, implement or effect any facility closing, lay-off, or early retirement programs affecting employees of the Company or any Company Subsidiary on a company-wide basis; (u) make any capital expenditures, except for capital expenditures made in accordance with the existence Company’s annual budget and capital expenditure plan, copies of which have been delivered to Parent; (v) discontinue any dispute with material line of business or part thereof; or (w) agree, in writing or otherwise, to take any person or entity which involves a reasonable likelihood authorize any of such litigation being commenced)the foregoing actions; (e) provided, that, notwithstanding the foregoing undertakings and restrictions, the Company and any Company Subsidiary may, in connection with the coronavirus (COVID-19) pandemic and without the consent of Parent or Merger Sub, take such actions as are reasonably necessary to (1) protect the health and safety of their employees and other individuals having business dealings with the Company and any Company Subsidiary, (2) respond to supply, service or demand disruptions or (3) comply with emergency regulations caused by or in place as a result of the coronavirus (COVID-19) pandemic; provided, further, that following the Company or any Company Subsidiary obtaining advice of outside legal counsel that the partial or full suspension of the Company or any Company Subsidiary’s operations is legally required due to the coronavirus (COVID-19) pandemic, to the extent that the Company and any Company Subsidiary took any actions pursuant to the immediately preceding proviso that caused deviations from its business being conducted in the ordinary course of business, the Company and any Company Subsidiary shall comply use reasonable commercial efforts to resume conducting its business in the ordinary course of business consistent with past practice in all material respects as soon as reasonably practicable. Nothing herein is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or any Company Subsidiary at any time prior to the Effective Time. Prior to the Effective Time, the Company and any Company Subsidiary shall exercise, consistent with all legal requirements the terms and contractual obligations applicable to its operations conditions of this Agreement, control and supervision over their own business and pay all applicable taxes; andoperations.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Effective Time, except as set forth in Section 5.2 of the Company shall Disclosure Schedule or as specifically permitted by any other provision of this Agreement, unless authorized and approved in writing by three-fourths of the members of the Operating Committee, the Company will, and will cause each of its Subsidiaries to conduct its business and operations only in the ordinary and usual and ordinary course of business; (b) Except as contemplated by this Agreementbusiness consistent with past practice. Without limiting the foregoing, and as necessary to effect the proposals contained an extension thereof, except as set forth in Section 5.2 of the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule or as specifically permitted by any other provision of this Agreement, the Company shall not (unless required by applicable Law), and shall not permit any of its Subsidiaries to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following unless authorized and approved in writing by three-fourths of the members of the Operating Committee: (ia) amend or otherwise change its certificate of incorporation or by-laws or equivalent organizational documents; (b) (A) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock of, or other Equity Interests in, the Company or any of its Subsidiaries of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the Company or any of its Subsidiaries other than (x) the issuance of Company Common Stock upon the exercise of Company Options outstanding as of the date hereof in accordance with their terms or upon the conversion of Company Preferred Stock or other convertible securities of the Company or (y) the issuance of Company Common Stock or Company Preferred Stock, as the case may be upon the exercise of the Company Warrants, or (B) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or encumber any of its assets; (ii) amend Subsidiaries, except pursuant to existing Contracts or propose to amend its Certificate commitments or the sale or purchase of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares goods in the ordinary course of its capital stockbusiness consistent with past practice, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice; (c) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares any of its capital stock (other than dividends paid by a wholly-owned Subsidiary of the Company to the Company or to any other wholly-owned Subsidiary of the Company) or enter into any agreement with respect to the voting of its capital stock; ; (ivd) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock, other Equity Interests or other securities (other than in connection with the termination of an employee pursuant to existing repurchase rights); (e) (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other securities; than acquisitions of assets in the ordinary course of business consistent with past practice, (vB) create incur any subsidiaries; 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 (viother than a wholly-owned Subsidiary of the Company) for borrowed money, (C) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract other than in the ordinary course of business consistent with past practice, or (D) enter into or modify amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.2(e); (f) except as may be required by contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement as disclosed in Section 4.11(b) of the Company Disclosure Schedule: (A) increase the compensation or benefits payable or to become payable to its directors, officers or employees; (B) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of its Subsidiaries, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law; or (C) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan; (g) (A) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms, (B) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, or (C) delay or accelerate payment of any account payable in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice; (h) make any change in accounting policies or procedures, except as required by GAAP or by a Governmental Entity; (i) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration; (j) make any material tax election, settle or compromise any material liability for Taxes, amend any Tax Return or file any refund for Taxes; (k) take, or agree to take, any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; (l) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which the Company is a party; (m) take any action that is intended or would reasonably be expected to result in any of the foregoingconditions to the Merger set forth in Article VI not being satisfied; or (cn) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge authorize or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into any agreement or modify otherwise make any contract, agreement, commitment or arrangement with respect to do any of the foregoing; . Notwithstanding anything in this Section 5.2 to the contrary, Parent agrees that the Company’s Board may in its discretion do all things permitted under the terms of the Retention Bonus Plan, including (dx) designating beneficiaries, (y) granting discretionary Participating Units and (z) authorizing cash payments to be made to beneficiaries under the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute Retention Bonus Plan to permit said beneficiaries to meet their federal and state income tax liabilities in connection with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable payments made pursuant to its operations and business and pay all applicable taxes; andsaid plan.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Effective Time, except as set forth in Section 5.1 of the Company Disclosure Schedule or as specifically permitted by any other provision of this Agreement, unless Zhone shall otherwise agree in writing, the Company will, and will cause each of its Subsidiaries to conduct its business and operations only in the ordinary and usual and ordinary course of business; (b) Except as contemplated by this Agreementbusiness consistent with past practice. Without limiting the foregoing, and as necessary to effect the proposals contained an extension thereof, except as set forth in Section 5.1 of the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule or as specifically permitted by any other provision of this Agreement, the Company shall not (unless required by applicable Law), and shall not permit any of its Subsidiaries to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Zhone (iwhich consent shall not be unreasonably withheld if requested with respect to Section 5.1(o) hereof): (a) amend or otherwise change its certificate of incorporation or by-laws or equivalent organizational documents (except, as applicable, as contemplated by the Name Change and the Reverse Stock Split); (b) (A) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock of, or other Equity Interests in, the Company or any of its Subsidiaries of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the Company or any of its Subsidiaries, other than the issuance of Company Common Stock upon the exercise of Company Options outstanding as of the date hereof in accordance with their terms or (B) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or encumber any of its assets; (ii) amend Subsidiaries, except pursuant to existing Contracts or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockcommitments, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice; (c) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares any of its capital stock (other than dividends paid by a wholly-owned Subsidiary of the Company to the Company or to any other wholly-owned Subsidiary of the Company) or enter into any agreement with respect to the voting of its capital stock; ; (ivd) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock, other Equity Interests or other securities (other than pursuant to the Reverse Stock Split); (e) (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, (B) 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 (other securities; than a wholly-owned Subsidiary of the Company) for borrowed money, (vC) create terminate, cancel or request any subsidiaries; material change in, or agree to any material change in, any Company Material Contract, or (viD) enter into or modify amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1(e); (f) except as may be required by contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement as disclosed in Section 3.11(b) of the Company Disclosure Schedule: (A) increase the compensation or benefits payable or to become payable to its directors, officers or employees; (B) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of its Subsidiaries, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law; or (C) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan; (g) (A) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms, (B) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, or (C) delay or accelerate payment of any account payable in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice; (h) make any change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice or except as required by GAAP or by a Governmental Entity; (i) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration; (j) make any material tax election, settle or compromise any material liability for Taxes, amend any Tax Return or file any refund for Taxes; (k) take, or agree to take, any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; (l) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which the Company is a party; (m) take any action that is intended or would reasonably be expected to result in any of the foregoing; conditions to the Merger set forth in Article VI not being satisfied; (cn) Except as contemplated by this Agreementterminate, and those items contained cancel or request any change in, rescind, revoke or otherwise alter in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose ofany way, or agree to issuedo any of the foregoing with respect to, sellthe Severance Plan; (o) other than as is set forth on the Company’s operating budget set forth in Section 5.1(o) of the Company Disclosure Schedule, pledge make any expenditures or dispose of, any additional shares ofcash disbursements, or agree to or commit to make any optionsexpenditures or cash disbursements, warrants, conversion privileges in excess of $1,000,000 in the aggregate; or (p) authorize or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into any agreement or modify otherwise make any contract, agreement, commitment or arrangement with respect to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing DateEffective Time, except as set forth in Section 5.1 of the Company Disclosure Schedule or as specifically permitted by any other provision of this Agreement, unless Parent shall otherwise agree in writing: (a) the business of the Company and the Company Subsidiaries shall conduct its business and operations only be conducted in the usual and ordinary course of business; business consistent with past practice and (b) Except the Company shall use its reasonable best efforts to keep available the services of such of the current officers, key employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with such of the customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations as contemplated is reasonably necessary in order to preserve substantially intact its business organization. By way of amplification and not limitation, except as set forth in Section 5.1 of the Company Disclosure Schedule or as specifically permitted by any other provision of this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not (unless required by applicable Laws or stock exchange regulations), and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Parent: (ia) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents; (1) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of or encumber any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockstock of, or other equity interests in, the Company or any Company Subsidiary of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other equity interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other equity interests or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Company Subsidiary, other than the issuance of Company Common Stock upon the exercise of Company Options or Warrants in accordance with their terms or (2) except in the ordinary course of business consistent with past practice, sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets of the Company or any Company Subsidiary; (c) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeemotherwise, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; its capital stock (c) Except as contemplated other than dividends paid by this Agreement, and those items contained in wholly-owned Company Subsidiaries to the Company Proxy Statement or to be filed, other wholly- owned Company Subsidiaries) or enter into any agreement with respect to the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights voting of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and;

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, from and agrees that prior to after the Closing Date: date of this Agreement and, if the Effective Time occurs on a date after the date hereof, until the Effective Time, unless Parent shall otherwise agree in writing, (ax) the Company shall conduct its business only, and operations only the Company shall not take any action except, in the usual and ordinary course of business; business consistent with past practice and (by) Except as contemplated by this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement shall use all commercially reasonable efforts to keep available the services of the current officers, significant employees and consultants and to preserve the current relationships of the Company with its corporate partners, customers and suppliers and other Persons with which the Company has significant business relations, to the end that the Company's goodwill and ongoing businesses shall be filed (unimpaired at the “Company Proxy Statement”)Effective Time. By way of amplification and not limitation, the Company shall not not, between the date of this Agreement and, if the Effective Time occurs on a date after the date hereof, the Effective Time, directly or indirectly do indirectly, take, agree to take or allow, cause or permit any of the following: following actions without the prior written consent of Parent: (ia) amend or otherwise change the Certificate of Incorporation or Bylaws of the Company, except to increase the number of shares of authorized capital stock; (b) issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license or encumbrance of (i) any shares of capital stock of the Company of any class, or encumber securities convertible into or exchangeable or exercisable for any shares of its such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including any phantom interest), of the Company other than in connection with financings of the Company in an aggregate amount of one hundred fifty thousand dollars ($150,000) by bona fide venture capital firms or Persons who are stockholders of the Company as of the date hereof or (ii) any material property or assets of the Company; (c) (i) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or Person or any division thereof; (ii) amend incur any indebtedness for borrowed money or propose issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person for borrowed money or make any loans or advances material to amend its Certificate the business, assets, liabilities, financial condition or results of Incorporation or Bylawsoperations of the Company; (iii) splitterminate, combine cancel or reclassify request any outstanding shares of its capital stockmaterial change in, or agree to any material change in, any Material Contract or License Agreement; (iv) make or authorize any capital expenditure, other than capital expenditures in the ordinary course of business consistent with past practice that have been budgeted for fiscal year 2001 and disclosed in writing to Parent and that are not, in the aggregate, in excess of ten thousand dollars ($10,000); or (v) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 6.1(c); (d) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeemotherwise, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and;

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date: (a) Shareholders, jointly and severally, covenant and agree that, except as otherwise expressly required or permitted by the terms of this Agreement, between the date of this Agreement and the Closing, the business of the Company shall conduct its business and operations be conducted only in the usual and ordinary course of business; (b) Except as contemplated by this Agreementin, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not directly take any action except (a) amend or indirectly do any of the following: otherwise change its charter or bylaws; (ib) issue, sell, pledge, dispose of, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of or encumber any of its assets, tangible or intangible, except in the ordinary course of business consistent with past practice; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockstock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock; (c) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; ; (vd) create any subsidiaries; (vi) enter into reclassify, combine, split, subdivide or modify any contractredeem, agreementpurchase or otherwise acquire, commitment directly or arrangement with respect to indirectly, any of the foregoing; its capital stock or other securities; (ce) Except as contemplated by this Agreementsell, and those items contained lease or transfer any of its properties or assets (other than in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose ofordinary course of business consistent with past practice), or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation, consolidation or acquisition of stock or assets or otherwiseassets) any interest in any 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 (except in the material assets thereofordinary course of business consistent with past practice); (iii) make or obligate itself to make capital expenditures out of the ordinary course of business consistent with past practice; other than in the ordinary course of business consistent with past practice, incur any obligations or liabilities including, without limitation, any indebtedness for borrowed money, issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any indebtedness Person, or make any loans or advances, modify, terminate, amend or enter into any Contract other than as expressly required or permitted herein or in the ordinary course of business consistent with past practice, or impose any security interest or other Lien on any of its assets other than in the ordinary course of business consistent with past practice; (f) pay any bonus to others; its officers or (iv) employees, or increase the compensation payable or to become payable to its officers or employees or, except as presently bound to do, grant any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees, or establish, adopt, enter into or modify amend or take any contractaction to accelerate any rights or benefits which any collective bargaining, bonus, profit sharing trust, compensation, stock option, restricted stock pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, commitment trust, fund, policy or arrangement with respect to any of for the foregoing; (d) the Company shall notify ADS promptly benefit of any material adverse event directors, officers or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andemployees;

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Effective Time, except as set forth in Schedule 5.1 of the Company Disclosure Schedule or as specifically permitted by any other provision of this Agreement, unless Parent shall otherwise agree in writing, the Company will, and will cause each of its Subsidiaries to, (A) conduct its business and operations only in the ordinary and usual and ordinary course of business; business consistent with past practice and (bB) Except use its reasonable best efforts to keep available the services of the current officers and Key Employees of the Company and each of its Subsidiaries and to preserve the current relationships of the Company and each of its Subsidiaries with such of the customers, suppliers and other persons with which the Company or any of its Subsidiaries has significant business relations as contemplated by this Agreementis reasonably necessary to preserve substantially intact its business organization. Without limiting the foregoing, and as necessary to effect the proposals contained an extension thereof, except as set forth in Schedule 5.1 of the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule or as specifically permitted by any other provision of this Agreement, the Company shall not (unless required by applicable Law or the regulations or requirements of NASDAQ), and shall not permit any Subsidiary of the Company to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Parent: Section 5.1.1 amend or otherwise change its certificate of incorporation or by-laws or equivalent organizational documents; Section 5.1.2 (A) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock of, or other Capital Securities in, the Company or any of its Subsidiaries of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Capital Securities, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Capital Securities or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of the Company or any of its Subsidiaries, other than the issuance of additional (i) options granted to non-executive employees pursuant to Company Stock Option Plans in existence on the date of this Agreement in a manner consistent with past practice, (ii) warrants to purchase shares of Company Common Stock contemplated by agreements existing as of the date of this Agreement, and (iii) shares of Company Common Stock issuable upon the exercise of Company Options and/or warrants to purchase shares of capital stock of the Company outstanding as of the date of this Agreement in accordance with their terms, or (B) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or encumber any of its assets; (ii) amend Subsidiaries, except pursuant to existing contracts or propose to amend its Certificate commitments or the sale or purchase of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares goods in the ordinary course of its capital stock, or business consistent with past practice. Section 5.1.3 declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Subsidiary of the Company to the Company or to any other wholly-owned Subsidiary of the Company or issuance of additional warrants to purchase shares of Company Common Stock contemplated by agreements existing as of the date of this Agreement) or enter into any agreement with respect to the voting of its capital stock; (iv) ; Section 5.1.4 reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock stock, other Capital Securities or other securities; Section 5.1.5 (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other than acquisitions of assets budgeted for in the Company’s budget for the fiscal year ending December 31, 2004 as disclosed to Parent prior to the date hereof (the “2004 Budget”) or in the ordinary course of business consistent with past practice that is individually not in excess of $250,000 or in the aggregate, not in excess of $1,000,000 for the Company and its Subsidiaries taken as a whole; (vB) create incur any subsidiariesindebtedness 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 (other than a wholly-owned Subsidiary of the Company) for borrowed money; provided that the Company and its Subsidiaries may incur indebtedness for borrowed money under revolving credit lines pursuant to lending agreements existing as of the date of this Agreement so long as the Company’s Net Debt does not exceed $80,000,000; (viC) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract other than in the ordinary course of business consistent with past practice; (D) make or authorize any capital expenditure in excess of the 2004 Budget, other than capital expenditures that are not, in the aggregate, in excess of $500,000 for the Company and its Subsidiaries taken as a whole; or (E) with respect to clauses (A) and (B) above, enter into or modify amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1.5; Section 5.1.6 except as may be required by contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement as disclosed in Schedule 3.28.2 of the Company Disclosure Schedule: (A) increase the compensation or benefits payable or to become payable to its directors, officers or employees (except for increases in accordance with past practices in salaries or wages of non-officer employees of the Company or any of its Subsidiaries which are not across-the-board increases unless required pursuant to an agreement in existence on the foregoingdate of this Agreement or collective bargaining or similar agreements to which the Company is subject); (cB) Except as contemplated grant any rights to severance or termination pay to, or enter into any agreement to provide severance benefits with, any director, officer or other employee of the Company or any of its Subsidiaries, or establish, adopt, enter into or materially amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for the issuance of new stock options to new, non-executive employees in the ordinary course of business consistent with past practice, or to the extent required by applicable Law or the terms of a collective bargaining agreement in existence on the date of this Agreement; or (C) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, and those items contained exercisability or funding under any Employee Plans. Section 5.1.7 (A) pre-pay any long-term debt in an amount not to exceed $50,000 in the Company Proxy Statement to be filed, aggregate for the Company shall not and its Subsidiaries taken as a whole, or pay, discharge or satisfy any claims, liabilities or obligations (iabsolute, accrued, contingent or otherwise), except for borrowings under revolving credit lines existing as of the date of this Agreement in the ordinary course of business consistent with past practice and in accordance with their terms, (B) issuefail to collect notes or accounts receivable in the ordinary course of business consistent with past practice or enter into a factoring or discounting arrangement with a third party with respect to accounts receivable, sell(C) fail to pay any account payable in the ordinary course of business consistent with past practice, pledge or dispose of(D) vary the Company’s inventory practices in any material respect from the Company’s past practices; Section 5.1.8 make any change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice or except as required by GAAP or by a Governmental Authority; Section 5.1.9 waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration; Section 5.1.10 make any material tax election or settle or compromise any material liability for Taxes; Section 5.1.11 take, or agree to issue, sell, pledge or dispose oftake, any additional shares of, or any options, warrants, conversion privileges or rights action that would prevent the Merger from qualifying as a reorganization within the meaning of any kind to acquire any shares of, its capital stock; (iiSection 368(a) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of Code; Section 5.1. 12 adopt or implement any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andstockholder rights plan;

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior between the date of this Agreement and the Effective Time or the time, if any, at which this Agreement is terminated pursuant to the Closing Date: Section 8.1, except (a) as set forth in Section 5.1 of the Company Disclosure Schedule, (b) as specifically required by this Agreement, (c) as required by Law or (d) as consented to in writing by Parent, the Company (i) shall and shall cause each Company Subsidiary to, use its reasonable best efforts to prevent the occurrence of a Company Material Adverse Effect, conduct its business, in all material respects, in the ordinary course of business, including by using commercially reasonable efforts to preserve intact its and their present business organizations, material assets and the Material Intellectual Property and to preserve its and their present relationships with Persons with whom it and they have material business relations; provided, however, that no action that is specifically permitted by any of clauses (a) through (s) of this Section 5.1 shall be deemed a breach of this clause (i) and (ii) agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned) the Company shall conduct not, and shall not permit any Company Subsidiary to: (a) except for a Company Certificate Reverse Split Amendment effected in compliance with Section 6.10 of this Agreement, amend or otherwise change the Company Certificate or Company Bylaws, or otherwise alter its business and operations only in the usual and ordinary course of business; corporate structure through merger, liquidation, reorganization or otherwise; (b) Except as contemplated by this Agreementissue, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockencumber, or declareauthorize the issuance, set aside sale, pledge, disposition or pay any dividend or other distribution payable in cashencumbrance of, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create of any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares ofclass, or any options, warrants, conversion privileges convertible securities or other rights of any kind to acquire any shares ofof capital stock, or any other ownership interest (including any phantom interest) (except for the issuance of (i) the Top-Up Shares upon exercise of the Top-Up Option or (ii) Common Shares issuable pursuant to the Company Options, the Company Warrants or the Preferred Shares, as the case may be, which Company Options, Company Warrants, Preferred Shares or rights, as the case may be, are outstanding on the date hereof); (c) redeem, repurchase or otherwise acquire, directly or indirectly, any Shares (other than pursuant a repurchase right in favor of the Company with respect to unvested shares at no more than cost); (d) incur any indebtedness or guarantee any indebtedness for borrowed money or issue or sell any debt securities or guarantee any debt securities or other obligations of others or sell, pledge, dispose of or create a Lien on any assets (except for (i) sales of assets in the ordinary course of business and (ii) dispositions of obsolete or worthless assets) provided, however, that, if the Closing has not occurred on or before August 15, 2016, the Company shall have the right, in consultation with Parent, to incur indebtedness for borrowed money, or issue or sell debt securities, with a principal amount not to exceed $2,000,000 on such terms as are consented to by Parent in writing (such consent not to be unreasonably withheld, delayed or conditioned; it being understood and agreed that, in no event, shall Parent be required to consent to the incurrence of any indebtedness, or the issuance of sale of debt securities, that would result in the creation or imposition of any Lien on any of the assets of the Company or any Company Subsidiaries or that cannot be prepaid at any time prior to maturity without penalty or prepayment fees); (e) accelerate, amend or change the period (or permit any acceleration, amendment or change) of exercisability of options or warrants or authorize cash payments in exchange for any options, except as may be required under any Company Options, Restricted Shares, Company Warrants, Contract or this Agreement or as may be required by applicable Law; (f) except for a Company Certificate Reverse Split Amendment effected in compliance with Section 6.10 of this Agreement, (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its capital stock; , except that a wholly owned Subsidiary may declare and pay a dividend to its parent, (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock (iii) amend the terms of, repurchase, redeem or otherwise acquire, or permit any Subsidiary to repurchase, redeem or otherwise acquire, any of its securities or any securities of its Subsidiaries, or (iv) take any action that would modify or change any term in any material respect of any Indebtedness of the Company or any of the Company Subsidiaries; or propose to do any of the foregoing; (g) sell, lease, assign, transfer, abandon, fail to maintain, license, sublicense, subject to any Lien or otherwise dispose of any Material Intellectual Property or a material asset of the Company or a Company Subsidiary except (i) pursuant to existing Company Material Contracts or commitments, or (ii) licenses or sales of inventory in the ordinary course of business; (h) subject to Section 5.3, (i) acquire (by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any corporation, partnership or other business organization or division thereof or the any other material assets thereof; property or assets, (ii) enter into or amend any Company Material Contract or grant any release or relinquishment of any material rights under any Company Material Contract, (iii) incur authorize any indebtedness for borrowed moneycapital expenditures or purchase of fixed assets which are, issue any debt securities or guarantee any indebtedness to others; in the aggregate, in excess of $100,000, taken as a whole, or (iv) enter into or modify amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 5.1(h); (i) forgive any loans to any Person, including its employees, officers, directors or affiliates; (j) except to the extent required by applicable Laws or as required by any Company Benefit Plan or Material Contract in effect as of the date hereof (i) increase the compensation payable or to become payable to its directors, officers, employees or consultants or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer (except for officers who are terminated on an involuntary basis), employee or consultant, (ii) modify any existing salary, bonus, commission, severance, equity compensation or other equity arrangement or any other compensatory arrangement with any such Person (including under any profit sharing, management by objectives, incentive, gainsharing, competency or performance plan) or modify or waive any of the terms or conditions thereof or the performance or other criteria or conditions to payment or earning thereof, (iii) establish, adopt, enter into or amend any collective bargaining agreement, any Company Benefit Plan or any other bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any such director, officer, consultant or employee, or (iv) declare, pay, commit to, approve, or undertake any obligation of any other kind for the payment by the Company or any of the Company Subsidiaries of a bonus, commission or other additional salary, compensation or employee benefits to any such Person (including under any profit sharing, management by objectives, incentive, gainsharing, competency or performance plan); (k) hire or engage any employees, consultants or contractors, except for (i) repair and maintenance contractors or (ii) outside legal counsel; (l) take any action, other than as required by applicable Law or GAAP, to change accounting policies or procedures (following consultation with the Company’s independent auditor); (m) agree to any exclusivity, non-competition, most favored nation, or similar provision or covenant restricting the Company, any of the Company Subsidiaries or any of their respective Affiliates from competing in any line of business or with any Person or in any area or engaging in any activity or business (including with respect to the development, manufacture, marketing or distribution of their respective products or services), or pursuant to which any benefit or right would be required to be given or lost as a result of so competing or engaging, or which would have any such effect on Parent or any of its Affiliates after the Effective Time; (n) enter into any Contract, or relinquish or terminate any Contract or other right, in any individual case with an annual value in excess of $100,000 or with a value over the life of the Contract in excess of $250,000; (o) make, change or revoke any material Tax election, change any Tax accounting period, amend any material Tax Returns or file any material claim for Tax refunds, enter into any closing agreement or Tax ruling, enter into any Tax allocation agreement, Tax sharing agreement or Tax indemnity agreement (other than any customary commercial or financing agreements, entered into in the ordinary course of business), consent to any waiver or extension with respect to any Tax proceeding, file any material Tax Return, in a manner inconsistent with past practice, file any material amended Tax Return, or settle or compromise any material Tax liability, surrender any right to claim a material Tax refund (including any such refund to the extent it is used to offset or otherwise reduce Tax liability), or agree to an extension or waiver of the foregoing; statute of limitations with respect to a material amount of Taxes; (dp) (i) pay, discharge, settle or satisfy any claims, litigation, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities or obligations (x) fully reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) included in the Company shall notify ADS promptly SEC Documents or (y) incurred in the ordinary course of business and in an amount less than $100,000 or (ii) cancel any material adverse event Indebtedness (individually or circumstance affecting ADS in the aggregate) or waive any claims or rights of substantial value; (including the filing of q) enter into, or agree to enter into, any material litigation against the Company partnership arrangements, joint development agreements or the existence of strategic alliances; (r) initiate any dispute litigation, action, suit, proceeding, claim or arbitration or settle or agree to settle any litigation, action, suit, proceeding, claim or arbitration (except in connection with any person or entity which involves a reasonable likelihood of such litigation being commencedthis Agreement); or (es) take, or agree in writing or otherwise to take, any of the Company shall comply actions described in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andthis Section 5.1(a) through (r) above.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: Effective Time, unless Parent shall otherwise agree in writing, (ax) the businesses of the Company shall be conducted only in, and the Company shall not take any action except in the ordinary course of business consistent with past practice and (y) the Company shall conduct use all reasonable best efforts to keep available the services of such of the current officers, significant employees and consultants of the Company and to preserve the current relationships of the Company with such of the corporate partners, customers, suppliers and other persons with which the Company has significant business relations in order to preserve substantially intact its business organization. By way of amplification and operations only in the usual and ordinary course of business; (b) Except as contemplated by this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)not limitation, the Company shall not not, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Parent, which consent shall not be unreasonably withheld: (ia) amend or otherwise change its Certificate of Incorporation or bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license or encumbrance of (i) any shares of capital stock of the Company of any class, or encumber securities convertible into or exchangeable or exercisable for any shares of its such capital stock (including options), or any options, warrants or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or (ii) any property or assets of the Company except sales of inventory in the ordinary course of business consistent with past practice; (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or person or any division thereof; (ii) amend incur any indebtedness for borrowed money or propose issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person for borrowed money or make any loans or advances material to amend its Certificate the business, assets, liabilities, financial condition or results of Incorporation or Bylawsoperations of the Company; (iii) splitterminate, combine cancel or reclassify request any outstanding shares of its capital stockmaterial change in, or agree to any material change in, any Material Contract or License Agreement; (iv) make or authorize any capital expenditure, other than capital expenditures in the ordinary course of business consistent with past practice that have been budgeted for fiscal year 2000 and disclosed in writing to Parent and that are not, in the aggregate, in excess of $10,000 for the Company; or (v) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 6.01(c); (d) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock; ; (ive) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock stock; (f) amend the terms of, repurchase, redeem or otherwise acquire, any of its securities or any securities or propose to do any of the foregoing; (g) increase the compensation payable or to become payable to its directors, officers, consultants or employees, grant any rights to severance or termination pay to, or enter into any employment or severance agreement which provides benefits upon a change in control of the Company that would be triggered by the Merger with, any director, officer, consultant or other securities; (v) create any subsidiaries; (vi) employee of the Company who is not currently entitled to such benefits as a result of the Merger, establish, adopt, enter into or modify amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, consultant or employee of the Company, except to the extent required by applicable Law or the terms of a collective bargaining agreement, or enter into or amend any contract, agreement, commitment or arrangement between the Company and any of the Company's directors, officers, consultants or employees; (h) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of liabilities in the ordinary course of business and consistent with past practice or liabilities reflected or reserved against on the balance sheet of the Company dated as of December 31, 1999 previously presented to Parent and only to the extent of such reserves; (i) make any change with respect to the Company's accounting policies, principles, methods or procedures, including, without limitation, revenue recognition policies, other than as required by GAAP; (j) make any material Tax election or settle or compromise any material Tax liability; (k) permit any insurance policy naming it as a beneficiary or a loss payee to be cancelled or terminated, except in the ordinary and usual course of business; (l) maintain the books and records of the foregoing; Company in a manner not consistent with past business practices; (cm) Except take any action which would materially adversely affect the goodwill of its suppliers, customers and others with whom it has business relations; (n) fail to pay and perform in all material respects all of its debts, obligations and liabilities as contemplated by this Agreementand when due and all leases, agreements, contracts and those items contained other commitments to which it is a party in accordance with the Company Proxy Statement terms and provisions thereof; (o) fail to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations Laws that may be applicable to its operations and business and pay all applicable taxesbusiness; andor (p) authorize or enter into any formal or informal agreement or otherwise make any commitment to do any of the foregoing or to take any action or omit to take any action which would make any of the representations or warranties of the Company contained in this Agreement untrue, incomplete or incorrect or prevent the Company from performing or cause the Company not to perform its covenants hereunder or result in any of the conditions to the Merger set forth herein not being satisfied.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior between the date of this Agreement and date of the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to the Closing Date: Section 9.1, except (a) as set forth in Section 6.1 of the Company shall conduct its business and operations only in the usual and ordinary course of business; Disclosure Letter, (b) Except as contemplated specifically permitted or required by this Agreement, and (c) as necessary required by Law or (d) as consented to effect in writing (including via email from the proposals contained in the Company Proxy Statement person named under Section 10.5 to receive notices on behalf of Parent hereunder) by Parent (which consent shall not be filed (the “Company Proxy Statement”unreasonably withheld, conditioned or delayed), the Company shall not directly or indirectly do any of the following: (i) shall and shall cause each Company Subsidiary to, conduct its business in all material respects in the ordinary course of business consistent with past practice, including by using commercially reasonable efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with customers, suppliers, Governmental Entities and other Persons with whom it and they have material business relations; provided, however, that no action that is expressly permitted by any of clauses (a) through (p) of Section 6.1(ii) shall be deemed a breach of this clause (i), and (ii) agrees that between the date of this Agreement and the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 9.1, the Company shall not, and shall not permit any Company Subsidiary to: (a) authorize, declare or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, shares or other securities) or enter into any agreement with respect to voting of its capital stock; (b) split, combine, reduce or reclassify any of its capital stock, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock, except for any such transaction by a wholly owned Company Subsidiary which remains a wholly owned Company Subsidiary after consummation of such transaction; (c) except as required by applicable Law or any Company Benefit Plan in existence as of the date hereof, (i) increase the compensation or benefits payable or to become payable, or pay any amount not required to be paid, to any current or former directors, executive officers, employees or consultants of the Company or any Company Subsidiary or affiliate (each, a “Service Provider”) other than increases to Service Providers that are employees (other than executive officers) or consultants in annual base salaries or wages and target annual cash incentive opportunities at times and in amounts in the ordinary course of business consistent with past practice during the twelve (12) months prior to the date of this Agreement, (ii) grant to any Service Provider severance or termination pay, (iii) pay or award, or commit to pay or award, any bonuses or incentive compensation (including equity-based incentive compensation) to any Service Provider other than (with respect to Service Providers who are not executive officers) in the ordinary course of business consistent with past practice, (iv) enter into any employment, severance, or retention agreement (excluding offer letters that provide for no severance or change in control benefits, other than severance benefits provided to similarly situated employees under Company Benefit Plans in the ordinary course of business consistent with past practice) with any Service Provider or prospective Service Provider, (v) establish, adopt, enter into, amend or terminate any collective bargaining agreement or Company Benefit Plan, or any plan that would be a Company Benefit Plan if in effect on the date hereof, except (A) any amendments in the ordinary course of business consistent with past practice that do not contravene the other covenants set forth in this clause (c) or materially increase the cost to the Company, in the aggregate, of maintaining such Company Benefit Plan, or (B) as otherwise permitted by this Agreement (including this subsection (c)), (vi) establish or fund any “rabbi trust” or (vii) hire or terminate (other than for cause) any employee or consultant, other than in the ordinary course of business consistent with past practice; (d) make any change in financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, applicable Law or SEC policy; (e) authorize or announce an intention to authorize, or enter into agreements providing for, or consummate, any acquisitions of an equity interest in or a substantial portion of the assets of any Person or any business or division thereof, or any mergers, consolidations or business combinations, except for transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries; (f) amend the Company Governing Documents or restructure, reorganize, dissolve or liquidate the Company or any Company Subsidiary; (g) issue, deliver, grant, sell, pledge, dispose of or encumber encumber, or authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of in its capital stock, or declare, set aside or pay any dividend voting securities or other distribution payable equity interest in cashthe Company or any Company Subsidiary or any securities convertible into or exchangeable for any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares in its capital stock, property voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units or grant, modify the exercisability or vesting of, or take any action to cause to be exercisable any otherwise unexercisable Company Equity Award under any existing Company Equity Plan (except as otherwise required by the express terms of any Company Equity Award outstanding on the date hereof), other than (i) issuances of Company Shares in respect of any exercise of Company Stock Options, the vesting or settlement of Company Equity Awards outstanding on the date hereof, or, subject to Section 3.4(d), the purchase of Company Shares under the ESPP and, in all cases, in accordance with their respective present terms, (ii) issuances or grants of Company Equity Awards to (x) newly hired employees or (y) existing employees under “refresh” grant policies, in each case under an existing Company Equity Plan and with values and material terms that are, individually and in the aggregate, not more favorable to such employees than values and material terms of Company Equity Awards made in the ordinary course of business consistent with past practice or (iii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries; (h) directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (i) acquisitions of Company Shares tendered by holders of Company Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto in accordance with the terms of such Company Equity Awards, (ii) the redemption for no consideration by the Company of Company Equity Awards in connection with the forfeiture of such awards in accordance with the terms of such Company Equity Awards, and (iii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries; (i) redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness for borrowed money or any interest rate, currency or commodity derivatives or hedging transactions, or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (i) any Indebtedness for borrowed money among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries, (ii) guarantees by the Company of Indebtedness for borrowed money of Company Subsidiaries or guarantees by Company Subsidiaries of Indebtedness for borrowed money of the Company or any Company Subsidiary, which Indebtedness is incurred in compliance with this clause (i), and (iii) Indebtedness for borrowed money not to exceed $5,000,000 in aggregate principal amount outstanding or any interest rate, currency or commodity derivatives or hedging transactions for which the aggregate exposure is reasonably expected to be in excess of $5,000,000, in each case, at any time incurred by the Company or any of the Company Subsidiaries; provided that nothing contained herein shall prohibit the Company and the Company Subsidiaries from making guarantees or obtaining letters of credit or surety bonds for the benefit of commercial counterparties in the ordinary course of business consistent with past practice; (j) make any loans, advances or capital contributions to any other Person, except for loans among the Company and its wholly owned Company Subsidiaries or among the Company’s wholly owned Company Subsidiaries; (k) sell, lease, license, transfer, exchange, swap or otherwise dispose of, or subject to any Lien (other than Permitted Liens), any of its properties or assets (including shares in the capital of its or the Company Subsidiaries and any Intellectual Property), except (i) pursuant to existing agreements in effect and disclosed to Parent prior to the execution of this Agreement, (ii) in the case of Liens, as required in connection with any Indebtedness permitted to be incurred pursuant to Section 6.1(ii)(i), (iii) sales of inventory, or dispositions of obsolete or worthless equipment, in the ordinary course of business, (iv) licenses of non-material Intellectual Property that do not relate to Imbruvica® (ibrutinib), either (A) in the ordinary course of business or (B) in connection with a compromise or settlement of any material claim, litigation, investigation or proceeding permitted by Section 6.1(ii)(l), (v) such transactions with neither a fair market value of the assets or properties nor an aggregate purchase price that exceeds $5,000,000 in the aggregate that do not relate to Imbruvica® (ibrutinib) and (vi) for transactions among the Company and its wholly owned Company Subsidiaries or among wholly owned Company Subsidiaries; (l) compromise or settle any claim, litigation, investigation or proceeding, in each case made or pending by or against the Company or any of the Company Subsidiaries (including any compromise or settlement with respect to shares matters in which any of its capital stock; them is a plaintiff), or any of their officers and directors in their capacities as such, other than the compromise or settlement of claims, litigation, investigations or proceedings that: (i) is for an amount (in excess of insurance proceeds) not to exceed, for any such compromise or settlement individually or in the aggregate, $5,000,000, (ii) does not impose any injunctive or equitable relief or actions that would have a material effect on the operations of the Company and the Company Subsidiaries, (iii) does not provide for the license of any material Intellectual Property and (iv) redeemdoes not relate to Imbruvica® (ibrutinib); (m) make or change any material Tax election, purchase change any Tax accounting period for purposes of a material Tax or acquire material method of Tax accounting, file any material amended Tax Return, settle or offer compromise any audit or proceeding relating to acquire any shares a material amount of its capital stock Taxes, except in the ordinary course of business agree to an extension or other securities; (v) create any subsidiaries; (vi) waiver of the statute of limitations with respect to a material amount of Taxes, enter into any “closing agreement” within the meaning of Section 7121 of the Code (or modify any contractsimilar provision of state, agreementlocal, commitment or arrangement non-U.S. Law) with respect to any of the foregoing; material Tax, or surrender any right to claim a material Tax refund; (cn) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not except (i) issuein the ordinary course of business consistent with past practice, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition in accordance with the Company’s budget described on Section 6.1(n) of stock the Company Disclosure Letter or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur expenditures for less than $5,000,000 individually or $20,000,000 in the aggregate, make any indebtedness for borrowed moneynew capital expenditure or expenditures, issue or commit to do so; (o) except in the ordinary course of business consistent with past practice or in connection with any debt securities or guarantee transaction to the extent specifically permitted by any indebtedness to others; or other subclause of this Section 6.1(ii), (ivi) enter into any Contract that would, if entered into prior to the date hereof, be a Material Contract, or modify (ii) materially modify, materially amend or terminate any contractMaterial Contract or waive, agreementrelease, commitment terminate, amend, renew or arrangement with respect assign any material rights or claims of the Company or a Company Subsidiary thereunder; or (p) agree, in writing or otherwise, to take any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andforegoing actions.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to From the Closing Date: (a) Execution Date through the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its business and operations only in the usual and ordinary course of business; business consistent with past practice and in compliance in all material respects with all applicable Laws, (bii) Except as contemplated by this Agreementuse reasonable best efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers, employees and independent contractors, and as necessary to effect preserve the proposals contained goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with them and (iii) not take any action which could adversely affect or delay in any material respect the ability of either Parent or the Company Proxy Statement to be filed (obtain any necessary approvals of any regulatory agency or other Governmental Entity required for the “Company Proxy Statement”)transactions contemplated hereby. In addition, and without limiting the generality of the foregoing, from the Execution Date through the Effective Time, the Company shall not, and shall not directly or indirectly permit any of its Subsidiaries to, do any of the following: following without the prior written consent of Parent: (a) (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend the certificate of incorporation or bylaws or similar governing documents of the Company or any of its Certificate of Incorporation or Bylaws; Subsidiaries, (iiiii) split, combine or reclassify their outstanding capital stock or issue or authorize the issuance of any outstanding other security in respect or, in lieu of, or in substitution for, shares of its capital stock, or (iii) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, (iv) create any Subsidiary or alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any of its Subsidiaries, or (v) enter into any agreement with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares the voting of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into securities held by the Company or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; its Subsidiaries; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (ib) issue, sell, pledge or pledge, dispose of, grant, encumber, or agree to issue, sell, pledge or pledge, dispose of, grant or encumber any additional shares ofof any class of capital stock of the Company or any of its Subsidiaries, or any options, warrants, conversion privileges warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for such capital stock, except that the Company may issue Company Shares upon exercise of Company Stock Options and Company Warrants outstanding on the date hereof in accordance with their present terms; (i) issue any debt securities, incur, guarantee or otherwise become contingently liable with respect to any indebtedness for borrowed money, or enter into any arrangement having the economic effect of any of the foregoing, (ii) make any loans, advances or capital contributions to, or investments in, any Person, or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock; , or the capital stock of its Subsidiaries, or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or the capital stock of its Subsidiaries; (iid) (i) acquire (or agree to acquire by mergermerging or consolidating with, consolidationor by purchasing a substantial portion of the assets of or equity in, acquisition of stock or assets by any other manner, any business or otherwise) any corporation, partnership limited liability company, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets other than in the material ordinary course of business consistent with past practice, or (ii) authorize, make or agree to make any new capital expenditure or expenditures, or enter into any Contract or arrangement that reasonably may result in payments by or Liabilities of the Company, in excess of $50,000 individually or $100,000 in the aggregate in any twelve (12) month period; (e) sell, pledge, assign, dispose of, transfer, lease, securitize, or encumber any businesses, properties or assets thereof; of the Company or its Subsidiaries, other than sales of inventory and other assets in the ordinary course of business and consistent with past practice; (f) (i) increase the compensation payable or to become payable (including bonus grants) or increase or accelerate the vesting of the benefits provided to its directors, officers or employees or other service providers, except for increases in the ordinary course of business and consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not directors or executive officers of the Company, (ii) grant any severance or termination pay or benefits to, or enter into any employment, severance, retention, change in control, consulting or termination agreement with, any director, officer or other employee or other service providers of the Company or of any Company Subsidiary, (iii) incur establish, adopt, enter into or amend any indebtedness collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for borrowed moneythe benefit of any director, issue any debt securities officer or guarantee any indebtedness to others; employee or other service providers, or (iv) pay or make, or agree to pay or make, any accrual or arrangement for payment of any pension, retirement allowance, or any other employee benefit; (g) announce, implement or effect any reduction in labor force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of the Company or any of its Subsidiaries, other than routine employee terminations; (h) knowingly violate or knowingly fail to perform any obligation or duty imposed upon it by any applicable federal, state, local or foreign Law, rule, regulation, guideline or ordinance, or under any order, settlement agreement or judgment; (i) make any change to accounting policies or procedures, other than actions required to be taken by GAAP; (j) prepare or file any Tax Return inconsistent with past practice or, on any Tax Return, take any position, make any election, or adopt any method inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (it being understood and agreed that Parent shall be permitted to review and comment upon any Tax Return for a period of at least ten (10) Business Days prior to its filing); (k) make or change any express or deemed election related to Taxes, change an annual accounting period, adopt or change any method of accounting, file an amended Tax Return, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax Proceedings relating to the Company or any of its Subsidiaries, or take any other similar action relating to Taxes if such election, change, adoption, amendment, surrender, consent or other action would have the effect of increasing the Tax Liability of the Company or any of its Subsidiaries or decreasing any Tax attribute of the Company or any of its Subsidiaries; (l) commence any litigation or Proceedings with respect to Taxes, settle or compromise any litigation or Proceedings with respect to Taxes, commence any other litigation or Proceedings or settle or compromise any other material litigation or Proceedings; (m) (i) enter into a new line of business which is material to the Company and its Subsidiaries taken as a whole, or represents a category of revenue that is not discussed in the Company's 2007 Annual Report or (ii) open or close any facility or office of the Company or any of its Subsidiaries; (n) pay, discharge or satisfy any claims, Liabilities or obligations (whether or not absolute, accrued, asserted, 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 adequately reflected or reserved against in, the most recent financial statements (or the notes thereto) of the Company; (o) amend, modify or consent to the termination of any Company Material Contract, or amend, waive, modify or consent to the termination of the Company's or any of its Subsidiary's rights thereunder; (p) enter into, amend, modify, permit to lapse any rights under, or terminate (i) any agreements pursuant to which any other party is granted exclusive marketing or other exclusive rights of any type or scope with respect to any of its products or technology or which restricts the Company or any of its Subsidiary or, upon completion of the Merger or any other transaction contemplated hereby, Parent or any of its Subsidiaries, from engaging or competing in any line of business or in any location, (ii) any agreement or Contract with any customer, supplier, sales representative, agent or distributor, other than in the ordinary course of business and consistent with past practice, (iii) any agreement or Contract with any other Person pursuant to which the Company or any of its Subsidiaries is the licensor or licensee of any Intellectual Property, (iv) any agreement or arrangement with Persons that are Affiliates or are executive officers or directors of the Company, (v) any lease for real property or material operating lease, or (vi) any material rights or claims with respect to any confidentiality or standstill agreement to which the Company is a party and which relates to a business combination or other similar extraordinary transaction; (q) terminate, cancel, amend or modify any contractinsurance coverage policy maintained by Company or any of its Subsidiaries which is not promptly replaced by a comparable amount of insurance coverage; (r) terminate or waive any right of any material value to the Company or any of its Subsidiaries; (s) commence, waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration; (t) take any action to (i) render inapplicable, or to exempt any third Person from, the provisions of Section 203 of the DGCL, or any other state takeover or similar Law or state Law that purports to limit or restrict business combinations or the ability to acquire or vote shares or (ii) adopt or implement any shareholder rights agreement or plan; (u) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article VII not being satisfied; or (v) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any Contract, agreement, commitment or arrangement with respect to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1 (the “Pre-Closing Date: Period”), except (ai) as set forth in Schedule 5.1 of the Company shall conduct its business and operations only in the usual and ordinary course of business; Disclosure Letter, (bii) Except as expressly required pursuant to this Agreement, (iii) as may be required by applicable Law, (iv) as contemplated by this Agreementthe Curaçao Restructuring or (v) as consented to in writing by Parent (which consent shall not be unreasonably withheld, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed delayed or conditioned) (the “Company Proxy StatementExceptions”), the Company shall, and shall cause each of the Company Subsidiaries to, conduct its and their businesses in all material respects in the ordinary course of business and in compliance, in all material respects, with all applicable Laws. Without limiting the generality of the foregoing and other than pursuant to one or more of the Exceptions, during the Pre-Closing Period, without the prior written consent of Parent (which consent shall not directly be unreasonably withheld, delayed or indirectly do conditioned) the Company shall not, and shall not permit any of the following: Company Subsidiary (iwhere applicable) sellto: (a) amend, pledge, dispose of or encumber any of its assets; (ii) amend authorize or propose to amend its Certificate amend, the Company Governing Documents or the comparable organizational or governing documents of Incorporation or Bylaws; any Company Subsidiary; (iiib) split, combine combine, subdivide, recapitalize or reclassify any outstanding shares of its the Company’s Capital Stock or any capital stock, stock or other ownership interests of any Company Subsidiary; (c) declare, set aside aside, set a record date for, authorize or pay any dividend or other distribution payable in cash, stockequity, property or otherwise (or any combination thereof) with respect to shares the Company’s Capital Stock or any capital stock or other ownership interests of its capital stock; any Company Subsidiary (ivexcept for any dividend or other distribution by a Company Subsidiary to the Company or any other Company Subsidiary); (d) directly or indirectly redeem, purchase or acquire otherwise acquire, or offer to acquire any shares of its capital stock redeem, purchase or other securities; (v) create any subsidiaries; (vi) enter into otherwise acquire, or modify or amend the terms of, any contractEquity Interests, agreement, commitment or arrangement with respect to any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not except (i) from holders of Company Options in full or partial payment of any exercise price and any applicable Taxes payable by such holder upon exercise of the Company Options to the extent required or permitted under the terms of such Company Options, (ii) from holders of Company RSUs to the extent required or permitted under the terms of such Company RSUs in full or partial payment of any purchase price and any applicable Taxes payable by such holder upon the lapse of restrictions on the Company RSUs or (iii) acquisitions of Equity Interests by any Company Subsidiary in any Company Subsidiary pursuant to contractual obligations existing as of the date hereof; (e) authorize for issuance, issue, grant, sell, pledge encumber, deliver, transfer or dispose of, or propose, agree to issuecommit to or authorize the issuance, sellgrant, pledge sale, encumbrance, delivery, transfer or dispose of, disposition of any additional shares ofEquity Interests, or grant to any optionsPerson any right the value of which is based on the value of Shares or other capital stock, warrants, conversion privileges other than the issuance of Shares reserved for issuance on the date hereof pursuant to the exercise of the Company Options or rights vesting of any kind Company RSUs outstanding as of the date hereof; (f) acquire or agree to acquire any shares of, its capital stock; (ii) acquire (by whether pursuant to merger, consolidation, acquisition of stock or assets asset purchase or otherwise) in one transaction or any corporationseries of related transactions any equity interests of any Person or any business, partnership division or assets of any Person, except for any such purchases of assets in the ordinary course of business; (g) transfer, lease, license, sell, mortgage, pledge, covenant not to assert, abandon, allow to lapse, dispose of, or encumber any of its material assets or material Owned Company Intellectual Property, other than (i) sales, leases, covenants not to assert and licenses of assets or Owned Company Intellectual Property in the ordinary course of business, and (ii) dispositions of assets no longer used in the operation of the business; (h) (i) incur, create, assume or otherwise become liable for, or modify in any material respect, any long-term or short-term Indebtedness, including by way of the issuance of any bonds, debentures, notes or similar instruments or calls, options, warrants or other business organization rights to acquire any such debt securities, (ii) assume, guarantee, endorse or division otherwise become liable or responsible (whether directly, contingently or otherwise) for the material assets thereof; obligations of any other Person that is not a Company Subsidiary or enter into any “keep well” or other agreement to maintain the financial condition of another Person (other than a Company Subsidiary), (iii) incur modify in any indebtedness for borrowed moneymaterial respect or change the material terms or extend the maturity of any Indebtedness (including refinancing any existing Indebtedness), issue any debt securities or guarantee any indebtedness to others; or (iv) enter into make any loans, advances or capital contributions to, or investments in, any other Person (other than to or in a Company Subsidiary or advances to employees in the ordinary course of business), (v) cancel any Indebtedness or waive any claims or rights thereunder, or (vi) create or suffer to exist any Lien (other than Permitted Liens) on any assets, tangible or intangible, of the Company or any Company Subsidiary, in each case (clauses (i) through (vi)), except for, and other than in connection with, (A) intercompany Indebtedness among the Company and any wholly owned Company Subsidiaries, (B) Indebtedness for borrowed money under the Company’s credit facilities existing as of the date hereof incurred in the ordinary course of business for working capital purposes, (C) letters of credit issued in the ordinary course of business, (D) the extension, renewal or replacement of capital leases in the ordinary course on comparable terms and conditions as those capital leases existing as of the date of this Agreement, (E) repayment of existing Indebtedness in the ordinary course of business, if such repayment does not require the payment of any pre-payment or other similar fee pursuant to the terms of such Indebtedness (except for the cost of terminating any swaps in connection with any such repayment), (F) incurrence of Indebtedness in accordance with the Second Amended and Restated Revolving Loan Facility Credit Agreement, dated as of April 26, 2018, among the Company, as borrower, the lenders party thereto from time to time, and Time Warner Inc. (n/k/a Warner Media, LLC), as administrative agent; (i) except (i) as required by the existing terms of any Company Benefit Plan in effect on the date hereof, or (ii) to the extent necessary to comply with applicable Law (A) increase the salary or target bonus of any of the current or former directors, officers, employees or consultants of the Company or the Company Subsidiaries other than annual increases in salary or compensation of such individuals that do not exceed 4% in the aggregate, or increase in any manner the pension or other similar benefits, severance or termination pay of any of the current or former directors, officers, employees or consultants of the Company or the Company Subsidiaries; (B) become a party to, establish, amend, commence participation in, terminate or commit itself to the adoption of any stock option plan or other stock-based compensation plan, or any compensation, severance, pension, retirement, profit-sharing, welfare benefit, or other employee benefit plan or agreement with or for the benefit of any current or former directors, officers, employees or consultants of the Company or the Company Subsidiaries (or newly hired employees); (C) accelerate the vesting of or lapsing of restrictions with respect to any stock-based compensation or other long-term incentive compensation under any Benefit Plan; (D) grant any new awards under any Benefit Plan, provided that the Company or the applicable Company Subsidiary may offer cash awards to eligible employees having a value of annual grants to such employees that do not exceed in the aggregate 103% of the value of the total annual grant to any such employees in the immediately preceding year (without giving effect to accelerated vesting of stock-based compensation in 2018), which awards would be payable at the same times and upon substantially similar terms and conditions as Company RSUs; (E) amend or modify any outstanding award under any Benefit Plan; (F) enter into, amend or terminate any collective bargaining agreement or other agreement with a labor union, works council or similar organization; (G) enter into any agreement or arrange for the creation of any rabbi trust or similar arrangement, other than any rabbi trust or similar arrangement contemplated by existing employment agreements or otherwise existing as of the date hereof; (H) materially change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan that is required by applicable law to be funded or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or applicable Law; (I) forgive any loans, or issue any loans (other than routine advances issued in the ordinary course of business) to any of its or the Company Subsidiaries’ directors, officers, contractors or employees or (J) hire or engage any new employee or consultant or terminate the employment or engagement, other than for cause, of any employee or consultant if such new employee or consultant will receive total annual compensation in excess of $200,000 (it being understood that any stock-based compensation granted to any new employee or consultant will be paid in cash based on the value of such compensation (and not through the grant of Equity Interests) and will be payable at the same times and upon substantially similar terms and conditions as Company RSUs); (j) except (i) as set forth on the Company or applicable Company Subsidiary’s budget for the relevant period or (ii) for any transactions permitted under Section 5.1(f), make, authorize, enter into any commitment for or incur any capital expenditures in excess of (A) $2,000,000 with respect to the Company Subsidiaries set forth on Schedule 5.1(j)(A) of the Company Disclosure Letter and (B) $5,000,000 with respect to the Company and the Company Subsidiaries set forth on Schedule 5.1(j)(B) of the Company Disclosure Letter; provided, that such capital expenditures (clauses (A) and (B)) shall not exceed $10,000,000 in the aggregate with respect to the Company and the Company Subsidiaries, taken as a whole; (k) enter into (i) any new line of business outside of (A) the business conducted by the Company and the Company Subsidiaries as of the date of this Agreement, (B) any reasonable extension of such businesses and (C) any businesses reasonably related, ancillary or complementary thereto or (ii) any agreement or arrangement (including any non-compete or exclusivity agreement) that limits or otherwise restricts the Company or the Company Subsidiaries or any successor thereto from operating, engaging or competing in any material line of business in which such Person is currently engaged or in any geographic area material to the business or operations of such Person; (l) change any of the accounting methods used by it or change its fiscal year, except for such changes required by any change in GAAP or applicable Laws or by any Governmental Entity; (m) make any material Tax election, prepare any material Tax Return in a manner which is inconsistent with the past practices of the Company (or such Company Subsidiary, as applicable) with respect to the treatment of items on such Tax Return, file any amended Tax Return resulting in a liability for a material amount of Tax or change any annual Tax accounting period, in each case, other than in the ordinary course of business; (n) settle or compromise any pending or threatened litigation, audit, claim or action against the Company or any of the Company Subsidiaries (including any audit, examination or other proceeding with respect to Taxes) that (i) would impose on the Company or any Company Subsidiary a monetary obligation (without giving effect to insurance proceeds receivable) in excess of (A) the greater of $2,000,000 individually or the amount reserved against such matter in the most recent financial statements (or the notes thereto) of the Company included in the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ending on September 30, 2019 or (B) $8,000,000 in the aggregate or (ii) involves any (A) injunctive or equitable relief that would impose material restrictions on the operations or business of the Company and the Company Subsidiaries, taken as a whole, as conducted on the date hereof or (B) admission of wrongdoing or criminal act; (o) (i) renew, extend, modify, amend, cancel or terminate any Company Material Contract, in each case other than in the ordinary course of business, (ii) waive, release or assign (other than to affiliates of the Company) any rights under any Company Material Contract in a manner that would materially reduce the expected economic benefits thereof to the Company and the Company Subsidiaries, taken as a whole, or (iii) enter into any Contract which, if entered into prior to the date of this Agreement, would constitute a Company Material Contract, other than Contracts entered into in the ordinary course of business that have comparable terms to existing Company Material Contracts of the same type; provided, that, solely for the purposes of this Section 5.1(o), the term “Company Material Contract” shall be read to include (x) any Contract relating to local productions (including local fiction, reality or production services Contracts) which is a sale, transfer, out-license, assignment or other disposal of its rights relating to local productions, or is a purchase, in-license or other acquisition of rights relating to local productions, where the annual revenue or cost to the Company or any Company Subsidiary from such Contract exceeds (or is expected to exceed) $3,000,000 for fiscal year 2019 (with respect to such Contract entered into prior to the date of this Agreement) or fiscal year 2019 and/or any fiscal year thereafter (with respect to such Contract entered into after the date of this Agreement) and (y) Contracts that would have been included in the definition thereof pursuant to clauses (xiii), (xiv), (xv) and (xvi) of Section 3.13(a), in each case, if the reference to “$5,000,000” therein was replaced with a reference to “$3,000,000” (and with the reference to “fiscal year 2019” in the cases of the foregoing clauses (xiv) and (xv) (with respect to such Contracts entered into after the date of this Agreement) replaced with “fiscal year 2019 or any fiscal year thereafter”, and the reference to “September 30, 2019” in the case of the foregoing clause (xvi) (with respect to such Contracts entered into after the date of this Agreement) replaced with “September 30, 2019 and/or any applicable date thereafter”); provided, further that, notwithstanding anything to the contrary contained herein, Parent’s consent to any action contemplated by this Section 5.1(o) shall be deemed to be granted on the third business day following the Company’s notice requesting such consent unless Parent shall have denied such consent in writing within such three business day period; (p) implement any employee layoffs or plant closings that would reasonably be expected to trigger notification requirements pursuant to applicable Laws; (q) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the Merger or as permitted by Section 5.2); (r) enter into any Contract (other than the Voting Agreement) with respect to the voting or registration of shares of the Company’s or any Company Subsidiary’s capital stock or securities; or (s) enter into any agreement, contract, agreement, commitment or arrangement with respect to do any of the foregoing; (d) , or authorize, resolve or agree to do any of the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andforegoing.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to From the Closing Date: (a) Execution Date through the Effective Time, except as expressly contemplated by the terms of this Agreement, the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its business and operations only in the usual and ordinary course of business; business consistent with past practice in all material respects and in compliance in all material respects with all applicable Laws, (bii) Except use commercially reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers, employees and independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with them and (iii) not take any action which would adversely affect or delay in any material respect the ability of either Parent or the Company to obtain any necessary approvals of any regulatory agency or other Governmental Entity required for the transactions contemplated hereby. In addition, and without limiting the generality of the foregoing, from the Execution Date through the Effective Time, except as expressly contemplated by the terms of this Agreement, as required by applicable Law and except as necessary to effect set forth in Section 6.1 of the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule, the Company shall not, and shall not directly or indirectly permit any of its Subsidiaries to, do any of the following: following outside of the ordinary course of business consistent with past practices without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed): (a) (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend the certificate of incorporation or bylaws or similar governing documents of the Company or any of its Certificate of Incorporation or Bylaws; Subsidiaries, (iiiii) split, combine or reclassify their outstanding capital stock or issue or authorize the issuance of any outstanding other security in respect or, in lieu of, or in substitution for, shares of its capital stock, or (iii) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, (iv) create any Subsidiary or alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any of its Subsidiaries, or (v) enter into any agreement with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares the voting of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into securities held by the Company or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; its Subsidiaries; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (ib) issue, sell, pledge or pledge, dispose of, grant, encumber, or agree to issue, sell, pledge or pledge, dispose of, grant or encumber any additional shares ofof any class of capital stock of the Company or any of its Subsidiaries, or any options, warrants, conversion privileges warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for such capital stock, except that the Company may issue Company Shares upon exercise of Company Stock Options and Company Warrants outstanding on the date hereof in accordance with their present terms; (i) issue any debt securities, incur, guarantee or otherwise become contingently liable with respect to any indebtedness for borrowed money or enter into any arrangement having the economic effect of any of the foregoing, (ii) make any loans, advances or capital contributions to, or investments in, any Person, or (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock; , or the capital stock of its Subsidiaries, or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or the capital stock of its Subsidiaries; (iid) (i) acquire (or agree to acquire by mergermerging or consolidating with, consolidationor by purchasing a substantial portion of the assets of or equity in, acquisition of stock or assets by any other manner, any business or otherwise) any corporation, partnership limited liability company, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets other than in the ordinary course of business consistent with past practice, or (ii) authorize, make or agree to make any new capital expenditure or expenditures, or enter into any Contract or arrangement that reasonably may result in payments by or Liabilities of the Company, in excess of $1,000,000 individually or $5,000,00 in the aggregate in any twelve (12) month period that is not set forth in the capital expenditure budget; (e) sell, pledge, assign, dispose of, transfer, lease, securitize, or encumber any businesses, properties or assets of the Company or its Subsidiaries; (f) except as required by any Company Benefit Plan or Company Contract existing on the date hereof, (i) increase the compensation payable or to become payable (including bonus grants) or increase or accelerate the vesting of the benefits provided to its directors, officers or employees or other service providers, except for increases in the ordinary course of business and consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not directors or executive officers of the Company, (ii) grant any severance or termination pay or benefits to, or enter into any employment, severance, retention, change in control, consulting or termination agreement with, any director, officer or other employee or other service providers of the Company or of any of the Company’s Subsidiary, (iii) establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee or other service providers, or (iv) pay or make, or agree to pay or make, any accrual or arrangement for payment of any pension, retirement allowance, or any other employee benefit; (g) knowingly violate or knowingly fail to perform any obligation or duty imposed upon it by any applicable federal, state, local or foreign Law, rule, regulation, guideline or ordinance, or under any order, settlement agreement or judgment; (h) announce, implement or effect any reduction in labor force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of the Company or any of its Subsidiaries; (i) make any change to accounting policies or procedures, other than actions required to be taken by GAAP; (j) prepare or file any Tax Return inconsistent with past practice or, on any Tax Return, take any position, make any election, or adopt any method inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods; (k) except for immaterial elections or changes, make or change any express or deemed election related to Taxes, change an annual accounting period, adopt or change any method of accounting, file an amended Tax Return, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax Proceedings relating to the Company or any of its Subsidiaries; (l) except as would not reasonably be expected to be materially adverse to the Company and its Subsidiaries taken as a whole, commence any litigation or Proceedings with respect to Taxes, settle or compromise any Proceedings with respect to Taxes; (m) (i) enter into a new line of business which is material to the Company and its Subsidiaries taken as a whole or (ii) open or close any facility or office of the Company or any of its Subsidiaries; (n) pay, discharge or satisfy any claims, Liabilities or obligations (whether or not absolute, accrued, asserted, 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 adequately reflected or reserved against in, the most recent financial statements (or the material assets thereofnotes thereto) of the Company; (o) amend, modify or consent to the termination of any Company Material Contract, or amend, waive, modify or consent to the termination of the Company’s or any of its Subsidiary’s rights thereunder; (p) enter into, amend, modify, permit to lapse any rights under, or terminate (i) any agreements pursuant to which any other party is granted exclusive marketing or other exclusive rights of any type or scope with respect to any of its products or technology or which restricts the Company or any of its Subsidiary or, upon completion of the Merger or any other transaction contemplated hereby, Parent or any of its Subsidiaries, from engaging or competing in any line of business or in any location, (ii) any agreement or Contract with any customer, supplier, sales representative, agent or distributor, other than in the ordinary course of business and consistent with past practice; (iii) incur any indebtedness for borrowed moneyarrangement with Persons that are Affiliates or are executive officers or directors of the Company, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into any material rights or claims with respect to any confidentiality or standstill agreement to which the Company is a party and which relates to a business combination or other similar extraordinary transaction, in each case, that would reasonably be expected to, individually or in the aggregate, materially affect the business or operations of the Company; (q) terminate, cancel, amend or modify any contractmaterial insurance coverage policy maintained by Company or any of its Subsidiaries which is not promptly replaced by a comparable amount of insurance coverage; (r) commence, waive, release, assign, settle or compromise any material claims, or any material litigation, Proceeding or arbitration including, without limitation, the Aurora Coop Litigation; (s) except as the Company Board determines in good faith is necessary to comply with its fiduciary duties, take any action to (i) render inapplicable, or to exempt any third Person from, the provisions of Section 203 of the DGCL, or any other state takeover or similar Law or state Law that purports to limit or restrict business combinations or the ability to acquire or vote shares or (ii) adopt or implement any stockholder rights agreement or plan; or (t) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any Contract, agreement, commitment or arrangement with respect to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to the Closing Date: Section 8.1, except (a1) as set forth in Section 5.1 of the Company shall conduct its business Disclosure Letter, (2) for the actions contemplated in clauses (x), (xiii) and operations only in the usual and ordinary course (xiv) of business; Section 2.1(a), (b3) Except as contemplated by required pursuant to this Agreement, and (4) as necessary may be required by Law or (5) as consented to effect the proposals contained in the Company Proxy Statement writing by Parent (not to be filed (the “Company Proxy Statement”unreasonably withheld, conditioned or delayed), the Company (x) shall and shall cause the Company Subsidiaries to, conduct its business in all material respect in the ordinary course of business consistent with past practice, (y) shall maintain the Company’s status as a REIT, and (z) agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company shall not, and shall cause each Company Subsidiary not directly or indirectly do any of the following: to: (i) sell, pledge, dispose of or encumber any of its assets; (iia) amend its articles of incorporation, bylaws or propose equivalent organizational documents, if such amendment would be materially adverse to amend its Certificate of Incorporation the Company, the applicable Company Subsidiary or Bylaws; Parent; (iiib) split, combine combine, subdivide or reclassify any outstanding shares of its capital stock, stock of the Company or any Company Subsidiary; (c) declare, set aside or pay any dividend on or make any other distribution payable distributions (whether in cash, stock, property or otherwise otherwise) with respect to shares of its capital stock; stock of the Company or any Company Subsidiary or other equity securities or ownership interests in the Company or any Company Subsidiary, except for (i) the authorization and payment by the Company of dividends (with respect to the Company Common Stock and Company Preferred Stock) in the ordinary course at the most recent quarterly rate with respect to the Company Common Stock and at the rate set forth in the Company Certificate with respect to the Company Preferred Stock (including payment thereof on a daily basis for the period between the date of the last regularly paid dividend and the Closing Date), (ii) the declaration and payment of dividends or other distributions to the Company by any directly or indirectly wholly owned Company Subsidiary, (iii) distributions by any Company Subsidiary that is not wholly owned, directly or indirectly, by the Company, in accordance with the requirements of the organizational documents of such Company Subsidiary, (iv) the authorization and payment by the Company of a special dividend in an amount necessary for each holder of the Company Common Stock to receive the Blended Return Amount, as such amount is defined in the agreement of limited partnership of the Company Operating Partnership, (v) the authorization and payment by the Company Operating Partnership of distributions to the holders of units in the Company Operating Partnership, in the ordinary course at the rate set forth in the OP Partnership Agreement (including payment thereof on a daily basis for the period between the date of the last regularly paid quarterly distribution and the Closing Date) and to the extent necessary for the Company to pay the dividends in Section 5.1(c)(i), and (vi) the authorization and payment of distributions with respect to the Company Joint Ventures pursuant to the terms and conditions of the applicable joint venture arrangement; provided, however, that, notwithstanding the restriction on dividends and other distributions in this Section 5.1(c), the Company and any Company Subsidiary shall be permitted to make distributions, including under Sections 858 or 860 of the Code, reasonably necessary for the Company to maintain its status as a REIT under the Code or applicable state Law and avoid the imposition of any entity level income or excise Tax under the Code or applicable state Law; (d) redeem, purchase or acquire otherwise acquire, or offer to redeem, purchase or otherwise acquire, any Equity Interests, except with respect to the redemption of (i) any partnership units of the Company Operating Partnership in accordance with the terms of the agreement of limited partnership of the Company Operating Partnership and (ii) any Company Preferred Stock in accordance with the terms of the Company Certificate; (e) except (i) as required by any Commercial Lease or other Company Material Contract, (ii) as required or permitted by any Ground Lease or (iii) as set forth on Section 5.1(e) of the Company Disclosure Letter, acquire any shares or agree to acquire (including by merger, consolidation or acquisition of its capital stock or assets) any real property, personal property (other securities; than personal property at a total cost of less than $1,000,000 in the aggregate or required to replace old or damaged personal property), corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof, except acquisitions by the Company or any wholly owned Company Subsidiary of or from an existing wholly owned Company Subsidiary or joint venture partners pursuant to existing purchase rights, options or other similar rights; (f) sell, pledge, lease, assign, transfer, dispose of or encumber, or effect a deed in lieu of foreclosure with respect to, any property or assets, except (i) as set forth on Section 5.1(f) of the Company Disclosure Letter, (ii) as permitted by Section 5.1(s) below, (iii) sales to joint venture partners pursuant to existing purchase rights, options or other similar rights, (iv) sales of personal property and equipment in the ordinary course of business consistent with past practice or (v) create in connection with the refinancing of any subsidiaries; existing Indebtedness of the Company or the Company Subsidiaries permitted by clause (vig) below; (g) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any debt securities or any loan documents, or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Company Subsidiary), except (i) Indebtedness incurred under the Company’s existing loans up to the maximum allowed under each applicable loan and (ii) the refinancing of any existing Indebtedness of the Company or the Company Subsidiaries within ninety (90) days of maturity to the extent that (x) the aggregate principal amount of such Indebtedness is not increased as a result thereof and (y) the terms of such refinanced Indebtedness, including with respect to prepayment, are no less favorable to the Company or the applicable Company Subsidiary than the terms of the existing Indebtedness; (h) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, affiliates, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of another entity, other than (i) advances required to be made under any Leases, (ii) accounts receivables, or (iii) the loans or advances set forth on Section 5.1(h) of the Company Disclosure Letter; (i) except as set forth on Section 5.1(i) of the Company Disclosure Letter, enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any rights or claims under, any Company Material Contract (or any contract that, if existing as of the date hereof, would be a Company Material Contract), other than any termination or renewal in accordance with the terms (including for cause as defined therein) of any existing Company Material Contract in the ordinary course of business consistent with past practice; (j) except as set forth on Section 5.1(j) of the Company Disclosure Letter, enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any rights or claims under, any Lease or Ground Lease, except for (i) entering into Residential Leases in the ordinary course of business consistent with past practice and (ii) entering into Commercial Leases consistent in all respects with the Leasing Parameters set forth in Exhibit D attached hereto and in a form in all material respects consistent with the applicable Company Subsidiary’s prior practice, and provided that, any applicable Company Subsidiary shall take all actions necessary to exercise any renewal or extension option under a Ground Lease; (k) settle or compromise (i) any legal action, suit or arbitration proceeding, in each case made or pending against any of the Company Properties, the Company or any of the Company Subsidiaries, excluding any such matter relating to Taxes, or (ii) any legal action, suit or proceeding involving any present, former or purported holder or group of holders of the Company Common Stock, in each case, where the amount paid by the Company or any Company Subsidiary in settlement exceeds $100,000 individually and is not covered by insurance; (l) (i) enter into, or adopt any Benefit Plan or (ii) grant any awards under the Company Equity Plan; (m) make any material change to its methods of accounting in effect at December 31, 2014, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP or the SEC; (n) enter into any new line of business; (o) enter into any Company Tax Protection Agreement, make, change or revoke any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return or file a U.S. federal income Tax Return (or any corresponding state and/or local income Tax Return) for the 2016 taxable year of the Company, unless otherwise required by applicable law (and in the case of any such Tax Return required by law to be filed by Company prior to the Closing, Company shall provide drafts of each such Tax Return and supporting documents to Parent for its review and comment at least fifteen (15) business days prior to the date on which the Company files such Tax Return, and the Company shall consider in good faith any reasonable comments timely submitted by Parent), enter into any closing agreement with respect to Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund, offset or credit of Taxes; except, in each case (A) to the extent required by applicable Law, or (B) to the extent necessary (x) to preserve the Company’s qualification as a REIT under the Code, or (y) to qualify or preserve the status of any Company Subsidiary as a disregarded entity or partnership for United States federal income tax purposes or as a taxable REIT subsidiary within the meaning of Section 856(l) of the Code, as the case may be; (p) take any action that would reasonably be expected to cause the Company to fail to qualify as a REIT or be liable for any Taxes pursuant to Code Section 856(c)(7)(C), 857(b)(5), 857(b)(6), 857(b)(7), 857(f), 860(c), 4981 or 337(d); (q) adopt a plan of merger, complete or partial liquidation or resolutions providing for or authorizing such merger, liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization; (r) amend or modify the compensation terms or any other obligations of the Company contained in the engagement letters entered into with the Company Financial Advisors or the Persons listed on Section 3.26 of the Company Disclosure Letter, in a manner adverse to the Company, any Company Subsidiary or Parent; (s) remove any personal property owned or leased by the Company or any Company Subsidiary from its Company Property except as may be required for necessary repair or replacement or as permitted by Section 5.1(f) above; (t) initiate any tax protest with respect to any Company Property; (u) settle, agree to, or otherwise acquiesce to any condemnation or taking of all or any portion of a Company Property; (v) make any capital expenditures not previously approved in the Company’s property budgets provided to Parent prior to the date hereof and in an amount exceeding $100,000 at a single Company Property or enter into any agreement to obligate the Company or any Company Subsidiary to make such capital expenditures; or (w) authorize, or enter into any contract, agreement, commitment or arrangement with respect to do any of the foregoing; (c) Except as contemplated by . Notwithstanding anything to the contrary set forth in this Agreement, and those items contained nothing in this Agreement shall prohibit the Company Proxy Statement from taking any action, at any time or from time to be filedtime, that upon advice of counsel to the Company, is reasonably necessary for the Company to maintain its qualification as a REIT under the Code for any period or portion thereof ending on or prior to the Effective Time or to avoid incurring entity level income or excise Taxes under the Code, including making dividend or other distribution payments to stockholders of the Company in accordance with this Agreement or otherwise. After the date hereof and through the Closing Date, the Company and the Company Operating Partnership shall not (i) issue, sell, pledge take all such action necessary to authorize and pay the regular dividends and distributions required under the Company Certificate or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement OP Partnership Agreement with respect to any the Company Common Stock, Company Preferred Stock and OP Series B Preferred Units, as the case may be, in accordance with Section 5.1(c), including payment thereof on a daily basis for the period between the date of the foregoing; (d) last regularly paid dividend or distribution, as the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including case may be, and the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andClosing Date.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Effective Time, except as specifically required or permitted by this Agreement or required by Law, unless Bancorp shall otherwise consent thereto in writing, the Company shall, and shall cause each of its Subsidiaries to, conduct its business and operations only in the ordinary and usual and ordinary course of business; (b) Except as contemplated by this Agreementbusiness consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to preserve intact its business organizations and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”)maintain its rights, franchises and existing goodwill and relations with customers, suppliers, creditors, lessors, lessees, employees and business associates. In addition, the Company shall not, and shall not permit its Subsidiaries to, take any action that the Company knows, at the time it prepares to take or takes such action, would (i) materially adversely affect or delay the ability of the Company or Bancorp to perform any of their respective material obligations in a timely basis under this Agreement or (ii) have or be reasonably expected to have a Company Material Adverse Effect. By way of amplification and not limitation, except as specifically required or permitted by any other provision of this Agreement or required by Law, between the date of this Agreement and the Effective Time, the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of Bancorp: (ia) amend or otherwise change its Articles of Incorporation or Bylaws or equivalent organizational documents or take any action to exempt any Person (other than Bancorp or its Subsidiaries) or any action taken by any Person from any Takeover Statute or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties; (b) sell, pledge, dispose of of, transfer, lease, license, guarantee or encumber any of its assets; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stockencumber, or declareauthorize the sale, set aside pledge, disposition, transfer, lease, license, guarantee or pay encumbrance of, any dividend or other distribution payable in cash, stock, material property or otherwise assets of the Company, except pursuant to existing Contracts or commitments or the sale or purchase of goods or the pledge of securities in the ordinary course of business consistent with respect to shares of its capital stockpast practice; or (ivc) redeem, purchase authorize or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into any agreement or modify otherwise make any contract, agreement, commitment or arrangement with respect to do any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company, for itself, Blacklist and the Company covenants Subsidiary, and Parent each agrees that prior to that, between the date of this Agreement and the Closing Date: , except as set forth in this Agreement or unless the other party shall otherwise agree in writing, (x) its business shall be conducted only in, and it shall not take any action except in, the ordinary course of business consistent with past practice and (y) it shall use its reasonable efforts to keep available the services of such of the current officers, significant employees and consultants and to preserve its current relationships with such of the corporate partners, customers, suppliers and other Persons with which it has significant business relations in order to preserve substantially intact its business organization. By way of amplification and not limitation, neither the Company nor Parent shall, between the date of this Agreement and the Closing Date, directly or indirectly, do, or agree to do, and the Company will cause Blacklist and the Company Subsidiary not to do or agree to do, any of the following without the prior written consent of the other party: (a) amend or otherwise change its Organizational Documents; (b) (i) issue or sell or authorize the Company shall conduct its business and operations only issuance or sale of any shares of capital stock 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 any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest); or (ii) pledge, dispose of, grant, transfer, lease, license, guarantee or encumber, or authorize the pledge, disposition, grant, transfer, lease, license or encumbrance of any property or assets, except sales of inventory in the usual and ordinary course of business; business consistent with past practice; (bc) Except as contemplated by this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not directly or indirectly do any of the following: (i) sellacquire (including, pledgewithout limitation, dispose by merger, consolidation, or acquisition of stock or encumber assets) any of its assetsinterest in any corporation, partnership, other business organization or Person or any division thereof; (ii) amend incur any indebtedness for borrowed money or propose issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person for borrowed money or make any loans or advances material to amend its Certificate business, assets, liabilities, financial condition or results of Incorporation or Bylawsoperations; (iii) splitterminate, combine cancel or reclassify request any outstanding shares of its capital stockmaterial change in, or agree to any material change in, any Material Contract or License Agreement; (iv) make or authorize any capital expenditure, other than, with respect to the Company, capital expenditures in the ordinary course of business consistent with past practice that have been budgeted for fiscal year 2007 and disclosed to Parent in the Company Disclosure Schedule and that are not, in the aggregate, in excess of $150,000 for the Company; or (v) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 6.01(c), other than, with respect to the Company, any contract, agreement, commitment or arrangement to lease property or incur indebtedness in connection with the establishment of new offices of the Company in Los Angeles, California and London, United Kingdom; (d) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock, other than as described in Section 6.22 below; (e) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (f) amend the terms of, repurchase, redeem or otherwise acquire, any of its securities or propose to do any of the foregoing; (g) with respect to the Company, Blacklist and the Company Subsidiary only: (i) increase the compensation payable or to become payable to its directors, officers, consultants or employees, other than to increase the salary of a director, officer, consultant or employee consistent with past practice and not in excess of 20% of the salary paid to such director, officer, consultant or employee during the prior fiscal year; (ii) grant any rights to severance or termination pay to its directors, officers, consultants or employees; or (iii) enter into any employment or severance agreement which provides benefits upon a change in control of the Company that would be triggered by the transactions contemplated hereby with, any director, officer, consultant or other employee of the Company, Blacklist or the Company Subsidiary, in each case who is not currently entitled to such benefits; (iv) redeemestablish, purchase adopt, enter into or acquire or offer to acquire amend any shares of its capital collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other securitiesplan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, consultant or employee of the Company, Blacklist or the Company Subsidiary, except to the extent required by applicable Law or the terms of a collective bargaining agreement; or (v) create any subsidiaries; (vi) enter into or modify amend any contract, agreement, commitment or arrangement between the Company, Blacklist or the Company Subsidiary and any of the Company’s directors, officers, consultants or employees; (h) 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 and consistent with past practice, and with respect to any the Company only, such payment of liabilities reflected or reserved against on the audited consolidated balance sheet of the foregoing; (c) Except Company dated as contemplated by this Agreementof December 31, 2006 previously presented to Parent and those items contained in only to the Company Proxy Statement to be filed, the Company shall not extent of such reserves; (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, make any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement change with respect to its accounting policies, principles, methods or procedures, including, without limitation, revenue recognition policies, other than as required by GAAP; (j) make any Tax election, settle or compromise any Tax liability, or make any application for, negotiate or receive a Tax ruling or arrangement, whether or not in connection with the Mergers, on its own behalf or on behalf of any of its shareholders in connection with the foregoing; Mergers, in each case, except as explicitly contemplated in this Agreement; (dk) cancel or terminate any insurance policy naming it as a beneficiary or a loss payee, except in the Company shall notify ADS promptly ordinary and usual course of business; (l) maintain its books and records in a manner not consistent with past business practices; (m) take any material adverse event or circumstance affecting ADS action which would materially adversely affect the goodwill of its suppliers, customers and others with whom it has business relations; (including n) fail to pay and perform all of its debts, obligations and liabilities as and when due and all leases, agreements, contracts and other commitments to which it is a party in accordance with the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); terms and provisions thereof; (eo) the Company shall fail to comply in all material respects with all legal requirements and contractual obligations Laws that may be applicable to its operations and business and pay all applicable taxesbusiness; andor (p) authorize or enter into any formal or informal agreement or otherwise make any commitment to do any of the foregoing or to take any action which would make any of its representations or warranties contained in this Agreement untrue or incorrect or prevent it from performing or cause it not to perform its covenants hereunder or result in any of the conditions to the Closing set forth herein not being satisfied.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except (i) as set forth in Section 6.1 of the Closing Date: Disclosure Letter, (aii) the Company shall conduct its business and operations only in the usual and ordinary course of business; (b) Except as contemplated expressly required by this Agreement, and (iii) as necessary may be required by applicable Law, or (iv) as consented to effect the proposals contained in the Company Proxy Statement to writing by Parent (which consent shall not be filed (the “Company Proxy Statement”unreasonably withheld, delayed or conditioned), the Company (x) shall and shall cause its Subsidiaries to, conduct its business in all material respects in the ordinary course of business and use commercially reasonable efforts to preserve its business organization intact, and maintain its existing relations and goodwill with customers, suppliers, distributors and creditors, (y) shall and shall cause its Subsidiaries to, keep available the services of their current officers and key employees, and (z) shall not, and shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber permit any of its assets; Subsidiaries to: (iia) amend its memorandum and articles of association or propose to amend its Certificate of Incorporation or Bylaws; equivalent organizational documents; (iiib) split, combine combine, subdivide or reclassify any outstanding shares of capital stock of the Company or any of its capital stock, or Subsidiaries; (c) declare, set aside or pay any dividend on or make any other distribution payable distributions (whether in cash, stock, property or otherwise otherwise) with respect to shares of capital stock of the Company or any of its capital stock; Subsidiaries or other equity securities or ownership interests in the Company or any of its Subsidiaries, except for the declaration and payment of dividends or other distributions to the Company or Company’s directly or indirectly wholly owned Subsidiaries (ivi) pursuant to the previously announced dividend policy or dividend declared prior to the date hereof or (ii) by the Company’s directly or indirectly wholly owned Subsidiaries to the Company or to another wholly owned Subsidiary of the Company, in each case, that is consistent with past practice; (d) except as required by a Company Benefit Plan (including the Company Equity Plans), redeem, purchase or acquire otherwise acquire, or offer to redeem, purchase or otherwise acquire, any Company Equity Interests, except from holders of Company RSU Awards or Company Options in full or partial payment of any purchase price and any applicable Taxes payable by such holder upon the lapse of restrictions on, or exercise, settlement or vesting of, the Company RSU Awards or Company Options; (e) acquire or agree to acquire (including by merger, consolidation or acquisition of stock or assets) any real property, personal property (other than real property or personal property at a total cost of less than One Million U.S. Dollars ($1,000,000) in the aggregate), corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof, except the pending acquisitions set forth on Section 6.1(e) of the Disclosure Letter (such acquisitions, the “Pending” Acquisitions”); (f) sell, pledge, lease, assign, transfer dispose of or encumber any property or assets, or voluntarily exercise any purchase or sale rights or rights of first offer, except (A) as set forth on Section 6.1(f) of the Disclosure Letter, (B) increased obligations under existing Liens resulting from Indebtedness incurred in accordance with Section 6.1(g), or (C) with respect to property or assets with a value of less than One Million U.S. Dollars ($1,000,000) in the aggregate; (g) incur, create, assume, refinance or replace any Indebtedness for borrowed money or issue or amend or modify the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a directly or indirectly wholly owned Subsidiary of the Company), except (A) Indebtedness incurred under the Company’s or its Subsidiaries’ existing credit facilities as in effect on the date hereof, or (B) the refinancing of any existing Indebtedness of the Company or any of its Subsidiaries to the extent that (1) the material terms and conditions of any newly incurred Indebtedness are reasonable market terms, and (2) the aggregate principal amount of such Indebtedness is not increased as a result of such refinancing; (h) make any material loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, Affiliates, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of another entity, other than by the Company or a wholly owned Subsidiary thereof to the Company or a wholly owned Subsidiary thereof; (i) enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any rights or claims under, any Material Contract (or any Contract that, if existing as of the date of this Agreement, would be a Material Contract), other than (A) any termination or renewal in accordance with the terms of any existing Material Contract that occur automatically without any action by the Company or any of its Subsidiaries, (B) the entry into any modification or amendment of, or waiver or consent under, any mortgage or related agreement to which the Company or any of its Subsidiaries is a party as required or necessitated by this Agreement or the Transactions; provided that any such modification, amendment, waiver or consent does not increase the principal amount thereunder or otherwise materially adversely affect the Company, any of its Subsidiaries or Parent, (C) as contemplated by or may be reasonably necessary to comply with the terms of this Agreement, or (D) actions permitted under clauses (A) through (C) of Section 6.1(g); (j) settle or compromise any legal action, suit or arbitration proceeding, in each case made or pending against the Company or any of its Subsidiaries, including any such matter relating to Taxes or the ownership of the Shares, other than settlements (A) requiring the Company or its Subsidiaries to pay monetary damages not exceeding Five Hundred Thousand U.S. Dollars ($500,000), (B) covered by existing insurance, and (C) not involving the admission of any wrongdoing by the Company or any of its Subsidiaries; (k) (i) establish, adopt, enter into, materially amend or terminate any Company Benefit Plan or collective bargaining agreement, or any plan, program, policy, or arrangement that would be a Company Benefit Plan if in effect on the date of this Agreement, (ii) increase the compensation, severance, perquisites or fringe benefits payable or to become payable to any current or former director, officer, employee or independent contractor of the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice, (iii) pay any bonus or severance pay to any current or former director, officer, employee or independent contractor of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practice, (iv) grant any stock options, stock appreciation rights, restricted shares, stock-based or stock-related awards, restricted stock units or performance units, other than with respect to the grant of annual equity awards to directors of the Company, (v) accelerate the payment, right to payment or vesting of any compensation or benefits, including any Company Options or Company RSU Awards, other than as contemplated by Section 3.4 of this Agreement, or (vi) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan or any plan, program, policy, practice or arrangement that would be a Company Plan if in effect on the date of this Agreement, except, in the case of each of clauses (i) through (vi), as required by applicable Law, this Agreement or any Company Benefit Plan; (l) make any material change to its methods of accounting in effect at December 31, 2015, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business, with respect to accounting policies, unless required by GAAP or the SEC; (m) enter into any material new line of business; (n) make or change any material Tax election, materially amend any Tax Return (except as required by applicable Law), enter into any material closing agreement with respect to Taxes, surrender any right to claim a material refund of Taxes, settle or finally resolve any material controversy with respect to Taxes or materially change any method of Tax accounting; (o) adopt a plan of merger, complete or partial liquidation, dissolution, consolidation, recapitalization or bankruptcy reorganization of the Company or any of its Subsidiaries, except in connection with any Pending Acquisitions permitted pursuant to Section 6.1(e); (p) amend or modify the compensation terms or any other obligations of the Company contained in the engagement letters entered into with the Company Financial Advisor, in a manner materially adverse to the Company, any of its Subsidiaries or Parent or engage other financial advisers in connection with the transactions contemplated by this Agreement; (q) make any capital expenditures or other investments except for ordinary course capital expenditures not to exceed One Million U.S. Dollars ($1,000,000) in the aggregate; (r) except for (A) issuances by a directly or indirectly wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary thereof, or (B) issuances as a result of the exercise of Company Options or settlement of Company RSU Awards as of the date of this Agreement, issue, sell, pledge, dispose, encumber or grant any Shares or any of the Company’s Subsidiaries capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares Shares or any of its the Company’s Subsidiaries capital stock or other securities; equity interests; (s) transfer or license from any Person any rights to any Intellectual Property, or transfer or license to any Person any rights to any Company IP Rights (other than non-exclusive end-user licenses in connection with the sale of Company Products in the ordinary course of business consistent with past practice), or transfer or provide a copy of any Company Source Code to any Person (including any current or former employee or consultant of the Company or any contractor or commercial partner of the Company) (other than providing access to Company Source Code to current employees and consultants of the Company or its Subsidiaries involved in the development of the Company Products on a need to know basis, consistent with past practice); (t) abandon, fail to maintain or allow to lapse, including by failure to pay the required fees in any jurisdiction, or disclaim, dedicate to the public, sell, assign or grant any security interest in, to or under any Company IP Rights or, other than in the ordinary course, develop, create or invent any Intellectual Property jointly with any third party; (u) fail to keep in force insurance policies providing insurance coverage with respect to the assets, operations and activities of the Company or any of its Subsidiaries as are currently in effect; (v) create take any subsidiariesaction that is intended or would reasonably be expected to, result in any of the conditions to the Merger set forth in Article VIII not being satisfied; (w) fail to make in a timely manner any filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder; or (vix) authorize, or enter into or modify any contract, agreement, commitment or arrangement with respect to do any of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Effective Time, except as set forth in Section 6.1 of the Company Disclosure Schedule, as specifically permitted by any other provision of this Agreement or as required by Law, unless ABI shall give prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company will, and will cause each of its Subsidiaries to (i) conduct its business and operations only in all material respects in the usual and ordinary course of business; , and (bii) Except as contemplated by this Agreementuse reasonable efforts to maintain and preserve intact its business organization and advantageous business relationships and to retain the services of its key officers and employees. Without limiting the foregoing, and as necessary to effect the proposals contained an extension thereof, except as set forth in Section 6.1 of the Company Proxy Statement to be filed (the “Company Proxy Statement”)Disclosure Schedule or as specifically permitted by any other provision of this Agreement, the Company shall not (unless required by applicable Law), and shall not permit any of its Subsidiaries to, between the date of this Agreement and the Effective Time, directly or indirectly do indirectly, do, or agree to do, any of the following: following without the prior written consent of ABI (which consent shall not be unreasonably withheld, conditioned or delayed): (a) amend or otherwise change the Company Charter or the Company Bylaws; (b) (i) issue, sell, pledgedispose of, dispose grant, transfer, or authorize the issuance, sale, disposition, grant or transfer of any shares of capital stock of, or encumber other Equity Interests in, the Company or any of its assets; Subsidiaries of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest, of the Company or any of its Subsidiaries, other than the grant of Company Options in the ordinary course of business and with the knowledge of PSS or the issuance of Company Common Stock upon the exercise of Company Options outstanding as of the date hereof in accordance with their terms or (ii) amend other than in the ordinary course of business, sell, dispose of, transfer, lease or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stocklicense, or authorize the sale, disposition, transfer, lease or license of, any property or assets (including any Company Intellectual Property) material to the Company and its Subsidiaries. (c) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares any capital stock of its capital stock; the Company; (ivd) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock stock, other Equity Interests or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any securities of the foregoing; Company (cother than the acquisition of outstanding Company Options in connection with the exercise or forfeiture thereof in accordance with their terms or any such actions required under the express terms of such securities); (e) Except as contemplated by this Agreement, and those items contained other than in the Company Proxy Statement to be filedordinary course of business, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any corporation, partnership Equity Interest in any person or any division thereof or other business organization assets, in each case that would be material to the Company and its Subsidiaries taken as a whole, or division or the material assets thereof; (iiiii) incur any indebtedness for borrowed money, money or issue any debt securities or assume or guarantee the obligations of any indebtedness person (other than a wholly-owned Subsidiary of the Company) for borrowed money in excess of $150 million in the aggregate (it being understood that entering into amendments to othersthe Company’s existing credit facilities to increase the amount of available borrowings thereunder in anticipation of or in connection with the Merger shall not be deemed a violation of this subparagraph (e)); (f) make any change in accounting policies or procedures, other than in the ordinary course of business or except as required by GAAP or by a Governmental Entity; or or (ivg) make any material Tax election, enter into any settlement or modify compromise of any contractmaterial liability for Taxes (including any audit, agreement, commitment examination or arrangement litigation with respect to Taxes), or file an amended Tax Return or any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andrefund for Taxes.

Conduct of Business by the Company Pending the Closing. The Company covenants agrees that, between the date of this Agreement and agrees that prior to the Closing Date: (a) Closing, except as set forth in Section 5.01 of the Disclosure Schedule or as contemplated by any other provision of this Agreement, except as provided below, the businesses of the Company and the Subsidiaries shall be conducted in, and the Company and the Subsidiaries shall not take any action except in, the ordinary course of business consistent with past practice; and the Company shall conduct use its reasonable efforts to preserve substantially intact the business organization of the Company and operations only in the usual Subsidiaries, to keep available the services of the current officers, employees and ordinary course consultants of business; (b) the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers and other persons with which the Company or any Subsidiary has significant business relations. Except as contemplated by this AgreementAgreement and Section 5.01 of the Disclosure Schedule, and as necessary to effect the proposals contained in neither the Company Proxy Statement to be filed (nor any Subsidiary shall, between the “Company Proxy Statement”)date of this Agreement and the Closing, the Company shall not directly or indirectly do indirectly, do, or propose to do, any of the following: following without the prior written consent of the Investors: (ia) amend or otherwise change its Certificate of Incorporation or By-laws or equivalent organizational documents; (1) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock or other Equity Interests in or of the Company or any Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock or other Equity Interests, or any other ownership interest (including, without limitation, any phantom interest or other interest represented by contract), of the Company or any Subsidiary (except for the issuance of shares of Company Common Stock issuable pursuant to the Company Stock Option Plans or the 2000 Warrant Agreement) or (2) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets of the Company or encumber any Subsidiary, except (A) pursuant to existing contracts or commitments or the sale or purchase of goods in the ordinary course of business consistent with past practice, (B) for sales, transfers, leases, licenses, mortgages, pledges, dispositions or encumbrances in the ordinary course of business consistent with past practice that, in the case of the Owned Real Property and Leased Real Property, are in an amount not to exceed $3,000,000 in the aggregate and (C)(i) the payment of any dividend or the making of any other distributions by any Subsidiary to the Company or another Subsidiary, (ii) the payment by any Subsidiary of any indebtedness owed to the Company, (iii) the making of any loans by, or advances from, any Subsidiary to the Company, or (iv) the transfer by any Subsidiary of any of its assets; property or assets to the Company; (iic) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside aside, make or pay any dividend or other distribution (except by a wholly-owned Subsidiary to the Company or to another wholly-owned Subsidiary of the Company), payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock or enter into any agreement with respect to the voting of its capital stock; ; (ivd) reclassify, combine, split, subdivide or redeem, or purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock or other securitiesEquity Interests; (e) (1) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof; (v2) create except for borrowings in the ordinary course of business under the Credit Agreement, incur any subsidiariesindebtedness 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 grant any security interest in any of its assets except in the ordinary course of business; (vi3) (A) terminate, cancel or request or agree to any material change in any Company Material Contract other than in the ordinary course of business consistent with past practice, or (B) enter into any material contract or agreement other than in the ordinary course of business consistent with past practice, except, in each case, for any contract that is terminable without penalty upon not more than 90 days notice, (4) make or authorize any capital expenditure or purchases of fixed assets other than as set forth on the capital expenditure plan attached in Section 5.01(e)(4) of the Disclosure Schedule; or (5) enter into or modify amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 5.01(e); (f) except as may be required by contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement as disclosed in Section 3.10 of the foregoing; Disclosure Schedule, (c1) Except as contemplated increase the compensation payable to or to become payable to its directors, officers or employees, except for increases in accordance with past practices in salaries or wages of employees of the Company or any Subsidiary which are not across-the-board increases, (2) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law or the terms of a collective bargaining agreement in existence on the date of this Agreement, and those items contained or (3) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Plan; (1) make or change any material election in respect of Taxes, (2) adopt or change any material accounting method in respect of Taxes, (3) enter into any Tax allocation agreement, Tax-sharing agreement, Tax indemnity agreement or closing agreement, (4) settle or compromise any material claim, notice, audit report or assessment in respect of Taxes, or (5) surrender any right to claim a refund of Taxes; (h) take any action, other than actions required by GAAP or in the Company Proxy Statement ordinary course of business, with respect to be filed, the Company shall not accounting policies or procedures; (i) issue(1) pre-pay any long-term debt, sell, pledge or dispose ofexcept in the ordinary course of business in an amount not to exceed $2.0 million in the aggregate for the Company and the Subsidiaries taken as a whole, or agree to issuepay, selldischarge or satisfy any claims, pledge liabilities or dispose ofobligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice, (2) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates, except in the ordinary course of business consistent with past practice, (3) delay or accelerate payment of any additional shares ofaccount payable in advance of its due date, except in the ordinary course of business consistent with past practice, or (4) vary the Company’s or any optionsSubsidiary’s inventory practices in any material respect from its past practices; (j) waive, warrantsrelease, conversion privileges assign, settle or rights compromise any material claims, litigation or arbitration to which the Company or any of its Subsidiaries is a party; which waiver, release, assignment, settlement or compromise involves the payment of amounts, or assumptions of liabilities, by the Company or any of its Subsidiaries of an amount in excess of $2,000,000, or which results in material restrictions on the use of any kind material Owned Real Property or material Leased Real Property or otherwise enjoins or restricts the Company from conducting the business as currently conducted in any material respect; (k) adopt, or propose to acquire adopt, or maintain any shares ofshareholders’ rights plan, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership “poison pill” or other business organization similar plan or division or the material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment unless the Investors are exempted from the provisions of such shareholders’ rights plan, “poison pill,” or arrangement other similar plan or agreement (l) except in accordance with Section 6.04(a), modify, amend, terminate, or release or assign any material rights or claims with respect to any confidentiality or standstill agreement; (m) write up, write down or write off the book value of any material assets, individually or in the aggregate, for the Company and the Subsidiaries taken as a whole, other than in the ordinary course of business consistent with past practice or except as required by GAAP applied on a consistent basis throughout such period; (n) to the extent required or applicable, take any action to exempt or make not subject to (1) the provisions of Section 203 of the DGCL or (2) any other state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares, any person (other than the Investors or any of their affiliates) or any action taken thereby, which person or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom; or (o) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing; (d) the Company shall notify ADS promptly of any material adverse event or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and.

Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date: Except (ai) as set forth in Section 5.1 of the Company Disclosure Schedule, or (ii) as otherwise expressly required by any other provision of this Agreement, or with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, the Company will, and will cause each of its Subsidiaries to, (x) conduct its business and operations only in the usual and ordinary course of business; business in a manner consistent with past practice and (by) Except use its commercially reasonable efforts to (A) keep available the services of the current officers, employees and consultants of the Company and each of its Subsidiaries and to preserve the goodwill and current relationships of the Company and each of its Subsidiaries with customers, suppliers and other Persons with which the Company or any of its Subsidiaries has business relations and (B) maintain and preserve intact its current material operations and material assets. Without limiting the foregoing, except as contemplated set forth in Section 5.1 of the Company Disclosure Schedule, or as otherwise expressly required by any other provision of this Agreement, and as necessary to effect the proposals contained in the Company Proxy Statement to be filed (the “Company Proxy Statement”), the Company shall not, and shall not permit any of its Subsidiaries to, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, directly or indirectly do indirectly, take any of the following: following actions without the prior written consent of Parent (iwhich consent shall not be unreasonably withheld, conditioned or delayed): (a) amend its certificate of incorporation or bylaws or equivalent organizational documents (including by merger, consolidation or otherwise); (b) issue, sell, pledge, dispose of, grant, transfer or encumber any shares of capital stock of, or other Equity Interests in, the Company or any of its Subsidiaries of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities of the Company or any of its Subsidiaries, other than the issuance of Company Shares upon the exercise of Company Stock Options and settlement of Company RSUs outstanding as of the date hereof in accordance with their existing terms; (c) sell, pledge, dispose of of, transfer, lease, license, guarantee or encumber any property or assets of the Company or any of its assets; Subsidiaries (other than Intellectual Property), except (i) sales of inventory and licensing of technology in the ordinary course of business, (ii) amend pursuant to the express terms of any Company Material Contract in effect as of the date hereof, or propose to amend its Certificate of Incorporation or Bylaws; (iii) splitthe sale or disposition of property or assets with a fair market value not in excess of $100,000 individually or $200,000 in the aggregate; (d) sell, combine assign, pledge, transfer, license, abandon, or reclassify otherwise dispose of any outstanding shares Intellectual Property of the Company or any of its capital stockSubsidiaries, except (i) the abandonment, in the ordinary course of business, of Company Owned Intellectual Property that in the Company’s reasonable business judgment is no longer used or useful in the business of the Company and its Subsidiaries and is no longer commercially practicable to maintain, and (ii) the non-exclusive licensing or sublicensing of Company Intellectual Property to affiliates, customers, distributors, and customers in the ordinary course of business; (e) declare, set aside aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise a combination thereof) with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; Equity Interests, except for dividends paid by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company; (vf) create reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any subsidiaries; of its capital stock or other Equity Interests, except (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any wholly-owned Subsidiary of the foregoing; (c) Except as contemplated by this Agreement, and those items contained in the Company Proxy Statement to be filed, the Company shall not (i) issue, sell, pledge or dispose ofCompany, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) the acceptance of Company Shares as payment for withholding taxes incurred in connection with the settlement of Company Stock Options and Company RSUs in accordance with past practice and the terms of the applicable Company Equity Plan and applicable award agreement(s); (g) merge or consolidate the Company or any of its Subsidiaries with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, except with respect to any wholly-owned Subsidiary of the Company; (h) acquire (including by merger, consolidation, or acquisition of stock or assets or otherwiseassets) any corporation, partnership Person (or other any business organization line or division thereof) or assets, other than acquisitions of inventory, materials and other property in the material assets thereof; ordinary course of business; (iiii) incur any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), the obligations of any indebtedness Person (other than a wholly-owned Subsidiary of the Company) for borrowed money; (j) make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Subsidiary of the Company and other than advances of patient stipends in the ordinary course of business) in excess of $50,000 in the aggregate; (k) terminate, cancel or renew, or agree to othersany material amendment to or waiver under any Company Material Contract, or enter into or amend any Contract that, if existing on the date hereof, would be a Company Material Contract, in each case other than in the ordinary course of business; (l) make any capital expenditure in excess of the Company’s capital expenditure budget (which includes, without limitation, expenditures for capitalized software) as disclosed to Parent prior to the date hereof, other than capital expenditures that are not, in the aggregate, in excess of $200,000; (i) increase the compensation or benefits payable or to become payable to any Service Provider, except as set forth on Section 5.1(m) of the Company Disclosure Schedule; (ii) amend any Company Benefit Plan, or establish, adopt, enter into any new arrangement that if in effect on the date hereof would be a Company Benefit Plan (in each case, for the avoidance of doubt, including, any employment, severance, change in control, retention, bonus (whether annual, transactional or otherwise), guarantee or similar agreement or arrangement), other than immaterial amendments to or new immaterial health and welfare plans adopted in the ordinary course of business, (iii) hire or, except as otherwise provided except as set forth on Section 5.1(m) of the Company Disclosure Schedule, terminate any employee of the Company or any of its Subsidiaries whose annual base salary exceeds, or would exceed, $100,000 per annum; (iv) amend: (A) any employment, consulting or severance agreement with any officer or director of the Company or any of its Subsidiaries, or (B) any employment, consulting or severance agreement with any employee of the Company or its Subsidiaries whose annual base salary exceeds, or would exceed, $100,000 per annum; (v) except as set forth on Section 5.1(m) of the Company Disclosure Schedule, pay, grant, declare, establish or accrue any cash or other bonus payment or amount to any employee (whether with respect to past, current or future performance or service period, (vi) waive or modify any restrictive covenant applicable to an employee of or in favor of the Company or any of its Subsidiaries, or (vii) take any actions prohibited by Section 5.1(m)(vii) of the Company Disclosure Schedule; (n) make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (o) compromise, settle or agree to settle any Proceeding other than compromises, settlements or agreements of Proceedings (excluding Transaction Litigation) in the ordinary course of business that involve only the payment of monetary damages not in excess of $100,000 individually or $250,000 in the aggregate, in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries; (p) except in the ordinary course of business or as required by Law, (i) make, change or revoke any material Tax election, (ii) change any of its methods of reporting income or deductions for Tax purposes (or file a request to make any such change), (iii) file any material amended Tax Return with respect to any Tax, or (iv) enter into any Tax allocation, sharing, indemnity or modify any contract, agreement, commitment or arrangement closing agreement with respect to a material amount of Taxes; (q) enter into any new line of business or materially alter any existing line of business, other than in the ordinary course of business; or (r) voluntarily cancel, terminate or fail to renew (in a form and amount consistent with past practice) any material insurance policies covering the Company, any of the foregoing; (d) the Company shall notify ADS promptly its Subsidiaries or any of any material adverse event their respective businesses, assets or circumstance affecting ADS (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); (e) the Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; andproperties.