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

Conduct of Business by the Company Pending the Closing. During the period from the date hereof to the Closing Date the Company will and will cause each of its Subsidiaries (i) to conduct its operations in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise of such stock options and (ii) issuances of Common Stock on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000.

Conduct of Business by the Company Pending the Closing. During the period from The Company agrees that between the date hereof 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 will and will cause each of its Subsidiaries Disclosure Letter, (b) as specifically required by this Agreement, (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) to shall and shall cause each Company Subsidiary to, conduct its operations business in all material respects in the ordinary course of business consistent with past practice, including by using reasonable best efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with Governmental Entities and 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) 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 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 and (ii) or by a wholly owned Company Subsidiary to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaseranother wholly owned Company Subsidiary; (b) take split, combine, reduce or reclassify any action to cause of its capital stock, or issue or authorize the Company's representations and warranties set forth issuance of any other securities in Article III to be untruerespect 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) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) required by applicable Law or the terms and conditions of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding Benefit Plan in existence as of the date hereof, issuances (i) increase the compensation or benefits payable or to become payable to any of stock options its directors, officers, employees or individual independent contractors other than, increases in base salaries and target cash incentive compensation at times and in amounts in the ordinary course of business consistent with past practice, provided, that in no event shall the Company increase (x) the target cash incentive compensation or the base salary of any Section 16 Officer, other than, with respect to each Section 16 Officer, an ordinary course base salary increase of up to 3%, or (y) the base salary of any employee, other than a Section 16 Officer, whose principal place of employment is in the United States by more than 5%, (ii) grant to any of its directors, officers, employees or individual independent contractors any increase in severance or termination pay other than increases in severance or termination pay for new-hires and promoted employees in the ordinary course of business consistent with past practice, (iii) pay or award, or commit to pay or award, any bonuses or incentive compensation, other than as set forth in Section 5.1(c) of the Company Disclosure Letter, (iv) enter into any employment, severance, change in control or retention agreement (excluding offer letters that provide for no severance, change in control or retention benefits) with any of its directors, officers, employees or individual independent contractors other than as set forth in Section 5.1(c) of the Company Disclosure Letter; provided further, that with respect to new hires and promoted employees (other than the Section 16 Officers), the Company may enter into employment, severance, change in control or retention agreements that provide for severance, change in control or retention benefits provided to similarly situated employees under Company Benefit Plans in the ordinary course of business consistent with past practice, (v) other than those employees of the Company and its Subsidiaries who are formal participants, as of the date hereof, in the Company’s CIC Policy, allow any additional employees of the Company or any of its Subsidiaries to participate in the Company’s CIC Policy, except with respect to new-hires and promoted employees in 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 except as otherwise permitted by this Section 5.1(c) or any amendments or terminations in the ordinary course of business consistent with past practice pursuant that do not contravene the other covenants set forth in this clause (c) or, materially increase the cost to stock option plans and employee benefit schemes existing as the Company, in the aggregate, of maintaining such Company Benefit Plan, (vii) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable to any of its directors, officers, employees or individual independent contractors, (viii) terminate the employment of any member of the date hereof and issuances Company Executive Team, other than for cause, or (ix) hire any employee or individual independent contractor having total annual cash compensation in excess of Common Stock upon exercise $300,000; (d) make any change in financial accounting policies, principles, practices or procedures or any of such stock options and (ii) issuances its methods of Common Stock on conversion of any Series A Preferred Stock reporting income, deductions or Convertible Debentures outstanding other material items for financial accounting purposes, except as of the date hereof; orrequired by GAAP, applicable Law or SEC policy; (e) acquire authorize or subscribe for shares announce an intention to authorize, or securities enter into agreements providing for, any acquisitions of an equity interest in or a substantial portion of the assets of any company Person or acquire any business or invest in any joint venturedivision thereof, in each case other than acquisitions whether by merger, consolidation, business combination, acquisition of stock or subscriptions assets, license or formation of a joint venture or otherwise, except for shares or securities in connection with a Conversion Offering to the extent (i) such transactions for consideration (including assumption of liabilities) that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 50,000,000 in the aggregate or (without taking into account ii) transactions between the price of Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries; (f) amend the Company Governing Documents or permit any acquisition or subscription of such further shares or securities within 30 days Significant Subsidiary of the relevant Conversion Offering purchased solely using Company to adopt any amendments to its governing documents; (g) other than in accordance with the proceeds Rights Plan, issue, deliver, grant, sell, pledge, dispose of sale of or encumber, or authorize the same class of issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any shares in its capital stock, voting securities or securities acquired or subscribed other equity interest in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted 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 sellacquire any such shares in its capital stock, lease, transfer voting securities or otherwise dispose of equity interest or any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000.“phantom” stock,

Conduct of Business by the Company Pending the Closing. During The Company agrees that, between the period from date of this Agreement and the Effective Time, except as set forth in Schedule 5.1 or as expressly required by any other provision of this Agreement, or unless Parent shall otherwise agree in writing, which agreement shall not be unreasonably withheld or delayed, the Company shall, and shall cause each Company Subsidiary and use commercially reasonable efforts to cause each Company JV to, (x) maintain its existence in good standing under applicable Law, (y) subject to the restrictions set forth in this Section 5.1, conduct its operations only in the ordinary and usual course of business consistent with past practice and (z) use its commercially reasonable efforts to keep available the services of the current officers, key employees, and consultants of the Company, each Company Subsidiary and each Company JV, but shall not be required or permitted to make expenditures in excess of those set forth in the Retention Plan to do so, and to preserve the current relationships of the Company, each Company Subsidiary and each Company JV with such of the customers, suppliers and other persons with which the Company, any Company Subsidiary or any Company JV has significant business relations as is reasonably necessary to preserve substantially intact its business organization. In addition, without limiting the foregoing, except as set forth in Schedule 5.1 or as expressly required by any other provision of this Agreement, to the extent not prohibited by applicable Law, the Company shall not and shall not permit any of the Company Subsidiaries to and shall use commercially reasonable efforts not to permit any of the Company JVs to, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent (not to be unreasonably withheld or delayed): (a) amend or propose to amend or otherwise change its Certificate of Incorporation or Bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of any Equity Interests of, the Company any Company Subsidiary or any Company JV, except that the Company may issue shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date hereof to the Closing Date the Company will and will cause each of its Subsidiaries in accordance with their terms; (c) (i) reclassify, combine, split, subdivide or amend the terms of 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, (ii) redeem, purchase or otherwise acquire, directly or indirectly, any of its Capital Stock, or other securities or (iii) create or organize any Person that would become a Subsidiary or an Affiliate of the Company; (d) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to conduct any of its operations Capital Stock (other than dividends or distributions paid by wholly-owned Company Subsidiaries to the Company or to other wholly-owned Company Subsidiaries) or make any distribution or payment (whether payable in cash, stock, property or a combination thereof) to any Company Stockholder, other than to employees of the Company pursuant to contractual arrangements existing on the date hereof or pursuant to the Retention Plan; (e) purchase, sell, pledge, dispose of (including a disposition on account of a Company Lease termination), transfer, lease, license, abandon, fail to maintain or encumber, fail to exercise extensions of Company Real Property Leases or authorize the sale, pledge, disposition, transfer, lease, license, abandonment, failure to maintain or encumbrance of, any material property, rights or assets of the Company, any Company Subsidiary or any Company JV, except (i) purchases, sales, pledges, dispositions, transfers, leases, licenses or encumbrances pursuant to existing Contracts disclosed in the Company Disclosure Schedule, (ii) sales, pledges, dispositions, transfers, leases, licenses or encumbrances of property or assets by the Company, a Company Subsidiary or a Company JV in the ordinary course of business consistent with past practice involving properties and assets with a value less than $10,000,000 in the aggregate, (iii) sales or dispositions of inventory and other tangible current assets in the ordinary course of business consistent with past practice, (iv) sale and leaseback transactions entered into in the ordinary course of business consistent with past practice without cross-defaulting to other leases or (v) sales, dispositions, transfers, leases, licenses or encumbrances of property or assets of the Company Korean Theatre Assets; provided that the Company shall provide at least five (5) Business Days’ notice to Parent prior to the consummation of any such transaction; (f) incur any Indebtedness, except for Indebtedness (i) incurred under the Company’s existing credit facilities or renewals or refinancings thereof, (ii) in an aggregate principal amount not to exceed $5,000,000 at any time outstanding, (iii) constituting capitalized lease obligations entered into in the ordinary course of business consistent with the Company’s budget and financial plan provided to Parent prior to the date hereof or (iv) incurred in connection with the Financing or any Alternative Financing; (g) engage in any transaction with, or enter into, amend or terminate (except pursuant to its terms) any Contract or other agreement, arrangement, or understanding with, directly or indirectly, any of the Company’s Affiliates, including, without limitation, any transactions, agreements, arrangements or understandings with any Affiliate or other Person covered under Item 404 of Regulation S-K promulgated by the SEC that would be required to be disclosed under such Item 404, or make any payment or distribution to any Affiliate, in each case, other than such transactions as are disclosed in the Company Disclosure Schedule; (h) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization (other than as contemplated by this Agreement); (i) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any Person or any business or division thereof or any assets (including the acquisition or building of theatres), other than acquisitions of inventory in the ordinary course of business consistent with past, practice for consideration that is individually not in excess of $10,000,000, or in the aggregate, not in excess of $15,000,000, (ii) 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, (iii) make or authorize any capital expenditures in excess of the amounts set forth in the Company’s budget and financial plan provided to Parent prior to the date hereof, other than capital expenditures that are not, in the aggregate, in excess of $5,000,000, (iv) make any material loan, advance or capital contribution to or investments in any Person other than loans, advances, capital contributions to or investments in wholly owned Subsidiaries of the Company made in the ordinary course of business consistent with past practice, (v) enter into or amend any Contract that if fully performed as entered into or amended, as applicable, would not be permitted under this Section 5.1(i), or (vi) enter into or amend any Contract that, if entered into or so amended prior to the date hereof, would have constituted a Company Material Contract; (j) except as may be required by contractual commitments with respect to severance or termination pay in existence on the date of this Agreement as disclosed in Schedule 3.13: (i) pay or increase the compensation or benefits payable or to become payable to its directors, officers or employees (except for customary 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), (ii) pay 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 pay, 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 or (iii) take any action to accelerate the vesting of any stock-based compensation; (k) except for payments made in connection with the extinguishment of Company Leases in connection with theatre closures in an aggregate amount not to exceed $5,000,000 or in connection with transactions permitted by Section 5.1(e), (i) pre-pay any long-term Indebtedness, except in the ordinary course of business in an amount not to exceed $5,000,000 in the aggregate for the Company, the Company Subsidiaries, the Company JVs taken as a whole, or (ii) pay, discharge or satisfy any Liabilities, except in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaserwith their terms; (bl) take make any action to cause the Company's representations and warranties set forth change in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue accounting policies or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any Company Subsidiaryprocedures, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing or except as of required by GAAP or by a Governmental Entity; (m) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration, except where the date hereof and issuances of Common Stock upon exercise of such stock options and (ii) issuances of Common Stock on conversion amount of any Series A Preferred Stock claim waived, released, assigned, settled or Convertible Debentures outstanding as of compromised, or the date hereof; or (e) acquire or subscribe for shares or securities amount paid in any company settlement or acquire any business or invest in any joint venturecompromise, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 2,500,000; (without taking into account n) write up, write down or write off the price book value of any acquisition assets, except for depreciation, amortization and impairment charges recorded in accordance with GAAP consistently applied; (o) permit any material insurance policy naming the Company, any Company Subsidiary, any Company JV as a beneficiary or subscription a loss payee to be canceled or terminated other than in the ordinary course of such further shares business consistent with past practice; (p) take any action that is intended or securities within 30 days would reasonably be expected to, or fail to take any action, the failure of which is intended or would reasonably expected to, result in any of the relevant Conversion Offering purchased solely using conditions to the proceeds Merger set forth in Article VII not being satisfied; (i) amend any material Tax Return (unless required by Law); (ii) make or change any material elections relating to Taxes other than elections made or changed in the ordinary course of sale business consistent with past practice or as required by Law; (iii) change any material accounting method relating to Taxes (unless required by GAAP or a change in Law); (iv) enter into any closing agreement relating to Taxes, settle any claim or assessment relating to Taxes or consent to any claim or audit relating to Taxes, in each individual case, involving an amount in controversy greater than $5,000,000; (r) permit to lapse any registrations or applications for material Intellectual Property owned, licensed, or used by the Company, any Company Subsidiary or any Company JV; (s) authorize or enter into any agreement or otherwise make any commitment to do any of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During the period from The Company agrees that, between the date hereof to of this Agreement and the Closing Date Effective Time, except as set forth in Section 5.1 of the Company will 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 Company Subsidiary to, (iA) to conduct its operations only in the ordinary and usual course of business consistent with past practice and (B) 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 to 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 is reasonably necessary to preserve substantially 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 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 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, or agree to do, any of the following without the prior written consent of Parent: Section 5.1.1 amend or otherwise change its articles of incorporation or bylaws 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 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 such interest represented by contract right), of the Company or any Company Subsidiary, other than the issuance of shares 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 Rights) 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 other than transactions between a wholly-owned Company Subsidiary and the Company or another wholly-owned Company Subsidiary: Section 5.1.3 declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the Company or to any other wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting 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 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 in the ordinary course of business consistent with past practice and any other acquisitions for consideration that is individually not in excess of $50,000, or in the aggregate, not in excess of $50,000 for the Company and the Company Subsidiaries taken as a whole, (iiB) to preserve intact its current 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 Company Subsidiary) for borrowed money, except for indebtedness for borrowed money incurred in the ordinary course of business organizations, keep available the service or other indebtedness for borrowed money with a maturity of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not more than one year in a principal amount not, directly in the aggregate, in excess of $50,000 for the Company and the Company Subsidiaries taken as a whole, (C) terminate, cancel or indirectlyrequest 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 Company’s budget as disclosed to Parent prior to the date hereof, other than capital expenditures that are not, in the aggregate, in excess of $50,000 for the Company and it will cause each of its the Company Subsidiaries taken as a whole, or (E) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not to, between 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 and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent disclosed in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights 3.11 of the Purchaser under Company Disclosure Schedule: (A) increase the Certificate of Amendmentcompensation or benefits payable or to become payable to its directors, assuming officers or employees (except for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and 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, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Scheduledirector, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue officer or sell any equity securities or securities exercisable or convertible into equity securities 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, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other than (i) issuances plan, agreement, trust, fund, policy or arrangement for the benefit of Common Stock upon any director, officer or employee, except to the exercise extent required by applicable Law or the terms of stock options outstanding as of a collective bargaining agreement in existence on the date hereofof this Agreement; or (C) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, issuances exercisability or funding under any Company Benefit Plan. Section 5.1.7 (A) pre-pay any long-term debt, except in the ordinary course of stock options business in an amount not to exceed $50,000 in the aggregate for the Company and the Company Subsidiaries taken as a whole, 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 pursuant 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 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, other than in the ordinary course of business consistent with past practice or 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, or change any existing, material tax election, settle or compromise any material liability for Taxes, adopt or change any material accounting method in respect of a material amount of Taxes, file any amended Tax Return with respect to stock option plans a material Tax or request any waiver of a statute of limitations with respect to any material Tax Return; 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 employee benefit schemes existing the Company Subsidiaries taken as a whole, in excess of $50,000, 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 Sections 78.411 through 78.444, inclusive, of the date hereof NRS or (B) 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 or entity (other than Parent, Merger Sub and issuances of Common Stock upon exercise of such stock options any Parent Subsidiary) or any action taken thereby, which person, entity or action would have otherwise been subject to the restrictive provisions thereof and (ii) issuances of Common Stock on conversion of not exempt therefrom; Section 5.1.14 take any Series A Preferred Stock action that is intended or Convertible Debentures outstanding as would reasonably be expected to result in any of the date hereofconditions to the Merger set forth in Article 6 not being satisfied; or (e) acquire Section 5.1.15 authorize or subscribe for shares enter into any agreement or securities in otherwise make any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering commitment to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and do any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During the period from Between the date hereof to and the earlier of (i) the Closing Date or (ii) the termination of this Agreement, (A) the Company will shall cause the businesses of the Company and will its Subsidiaries to be conducted only in the ordinary course of business and in a manner consistent with past practice, and the Company shall not, and shall cause each its Subsidiaries not to, take any action except in the ordinary course of business and in a manner consistent with past practice and (B) the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and its Subsidiaries and maintain existing relations and goodwill with Governmental Authorities, customers, suppliers, employees and business associates, other than, in the case of clauses (A) and (B), as (1) required or expressly contemplated by this Agreement, (2) set forth in Schedule 6.01, (3) required under applicable Laws, or (4) consented to in writing by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. By way of amplification and not limitation, neither the Company nor any of its Subsidiaries shall, between the date hereof and the earlier of (I) the Closing or (II) the termination of this Agreement, directly or indirectly, do any of the following, except as (w) required or expressly contemplated by this Agreement, (x) set forth in Schedule 6.01, (y) required under applicable Laws, or (z) consented to in writing by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed: (a) issue, sell or contract for the issuance or sale, of any of the capital stock of the Company or any securities convertible into or exchangeable for shares of capital stock of the Company or any securities, warrants, options or rights to purchase any of the foregoing, other than (i) Company Option grants to conduct new employees in the ordinary course and in a manner consistent with past practices, provided that the award agreements for Company Options issued on or after date hereof shall provide that the Company Options will not accelerate and vest in connection with the transaction contemplated by this Agreement and that such Company Options will be canceled in accordance with Section 2.03 or (ii) pursuant to the exercise of Company Options; (b) other than as contemplated by Section 2.03, amend the terms of any outstanding security or option; (c) purchase or redeem any shares of capital stock of the Company other than the purchase or redemption of shares of capital stock of the Company from a holder of an option outstanding on the date hereof in connection with the satisfaction of Tax withholding obligations or the payment of the exercise price thereof; (d) split, combine or reclassify any shares of the Company’s capital stock; (e) form any Subsidiary or enter into any joint venture or partnership; (f) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock or other securities, property or otherwise, with respect to any of the Company’s capital stock; (g) amend any of the charter documents, bylaws or other organizational documents of the Company or any of its operations material Subsidiaries; (h) transfer, lease or license to any third party, or materially encumber, any material assets of the Company or any of its Subsidiaries, except in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing:practice; (a) take any action which would (i) be reasonably likely to result enter into, materially amend or terminate any Material Contract or waive, release or assign any material rights or claims under any Material Contract, except in the circumstances described in clauses (i) through (xx) ordinary course of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, business and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchasera manner consistent with past practice; (bj) take enter into any action to cause the Company's representations and warranties set forth agreement or arrangement that limits or otherwise restricts in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of material respect the Company or any of its Subsidiaries or any successor thereto or that would, after the Closing, limit or restrict in any material respect the Company Subsidiaryor any of its Subsidiaries, from competing in any manner that is material to the Company in any location or with any Persons; (k) incur Indebtedness, other than Indebtedness not in excess of US$250,000 in any three month period after the date hereof; (il) issuances grant any Lien upon any of Common Stock upon the exercise of stock options outstanding as of its material assets other than Permitted Liens and to secure any permitted Indebtedness; (m) acquire any Person or property for a purchase price exceeding US$250,000 individually or US$500,000 in any three month period after the date hereof, issuances except for acquisitions of stock options property in the ordinary course of business consistent with past practice pursuant practice; (n) make any capital expenditure exceeding US$250,000 individually or US$500,000 in any three month period after the date hereof, except in the ordinary course of business to stock option plans maintain and employee benefit schemes existing operate manufacturing facilities in an efficient manner consistent with past practices; (o) settle (i) any material litigation, investigation, arbitration, proceeding, or other material claim involving or against the Company or any of its Subsidiaries, (ii) any stockholder litigation or dispute against the Company or any of its officers or directors, or (iii) any legal proceeding or dispute that relates to the transactions contemplated hereby; (p) fail to maintain any Company Registered Intellectual Property in the ordinary course of business consistent with past practices; (q) except as required by the terms of a Plan in effect on the date hereof and issuances or as required pursuant to applicable Laws, (i) increase compensation, bonuses or other benefits payable to any director, employee or independent contractor of Common Stock upon exercise of such stock options and the Company or any Subsidiary or (ii) issuances enter into, adopt or amend in any material respect any employment, change of Common Stock on conversion control, severance, compensation, retention, bonus, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, retirement benefits or other benefit agreement, plan, arrangement or policy applicable to any Series A Preferred Stock director, employee or Convertible Debentures outstanding as independent contractor of the date hereof; orCompany or any Subsidiary; (er) acquire or subscribe for shares or securities in change any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to of the extent that the aggregate price of all such acquisitions or subscriptions accounting methods used by the Company and or any of its Subsidiaries does not exceed $1,000,000 (without taking or change an annual accounting period), unless required by generally accepted accounting principals of relevant jurisdictions or applicable Law (in which case prompt written notice shall be provided to Buyer prior to such change); (s) change any Tax accounting period, make, change or revoke any material Tax election, adopt or change any Tax accounting method, file any amended Tax Return, settle a material Tax claim or assessment or surrender any claim for a refund of a material amount of Taxes, enter into account any closing agreement relating to Taxes, or waive or extend any statute of limitations in respect of Taxes, in each case, relating to the price of Company or its Subsidiaries, unless required by GAAP or applicable Law (in which case prompt written notice shall be provided to Buyer); (t) sell or lease any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds Real Property or modify, amend, terminate or waive any material rights under any material Lease; (u) except as may be required by applicable Law, enter into any collective bargaining agreement or other agreement with a labor union, works council or other employee representative; (v) adopt a plan of sale complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the same class Company or any of shares its Subsidiaries; or securities acquired or subscribed in such Conversion Offering); provided, however, that between (w) agree to do any of the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During the period from (a) The Company agrees that, between the date hereof of this Agreement and the earlier to occur of the Closing Date termination of this Agreement pursuant to Section 9.1 or Section 9.2 or the Effective Time (such time period, the “Interim Period”), except as expressly set forth in Section 7.1(a) of the Company Disclosure Schedule, as otherwise expressly permitted or contemplated by this Agreement, as required by applicable Law or as consented to in writing in advance by Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company will, and will cause each of its Subsidiaries Company Subsidiary to: (i) to conduct its business in the ordinary course consistent with past practice and (ii) use its commercially reasonable efforts to keep available the services of its officers, employees and contractors and to preserve the business relationships 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 an extension thereof, except as set forth in Section 7.1 of the Company Disclosure Schedule, as otherwise expressly permitted or contemplated by this Agreement, as required by applicable Law or as consented to in writing in advance by Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any Company Subsidiary to, during the Interim Period, directly or indirectly, take any of the following actions: (i) amend or otherwise change the Company Certificate of Incorporation, the Company By-laws or equivalent organizational documents of any Company Subsidiary; (ii) issue, deliver, sell, pledge, transfer, encumber or otherwise dispose, or authorize, propose or agree to the issuance, delivery, sale, pledge, transfer, encumbrance or disposition of, or amend the terms of or rights of holders of, any shares of its capital stock or other Equity Interests, or other Equity Interests (other than the issuance of Company Common Stock pursuant to the exercise of Company Options or the conversion of Company Preferred Stock, in each case, existing and outstanding on the date hereof and on the terms in effect on the date hereof); (iii) declare, set aside, establish a record date for, make or pay any dividend or any other distribution on (whether payable in cash, stock, property or a combination thereof), any shares of its capital stock or any of its Equity Interests, except (A) in connection with any cashless exercise or similar transactions pursuant to the exercise of Company Options in accordance with this Agreement, or (B) for payment or conversion of dividends on outstanding Company Preferred Stock accruing in the ordinary course unless otherwise contemplated by the Support Agreements, or enter into any agreement with respect to the voting of its Equity Interests; (iv) adjust, 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, 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) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any Person or any division thereof or all or substantially all of the assets thereof, or make any loan, advance or capital contribution to, or investment in, any Person or any division thereof (excluding intercompany loans or advances made 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 or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person for borrowed money, except for (A) indebtedness incurred under the Company’s existing credit facilities not in excess of $250,000, (B) indebtedness for borrowed money in a principal amount not in excess of $250,000 for all such indebtedness by the Company and the Company Subsidiaries in the aggregate (including indebtedness incurred under the Company’s existing credit facilities pursuant to the preceding clause (A)), and (C) indebtedness owed by any wholly-owned Company Subsidiary to the Company or any other wholly-owned Company Subsidiary; provided that any indebtedness for borrowed money incurred or otherwise acquired, or modified, or assumed under this Section 7.1(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 7.1(a)(vi) and other than Permitted Encumbrances; (viii) (A) enter into, terminate, accelerate or materially amend or modify (other than extensions in the ordinary course of business) any Company Material Contract or Contract that, if in effect on the date hereof, would have been a Company Material Contract, (B) waive any material term of or any material default under, or release, settle or compromise any material claim against the Company or liability or obligation owing to the Company 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 and/or the other transactions contemplated in this Agreement; (ix) other than sales or dispositions in the ordinary course of business, 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 $500,000 in the aggregate; (x) sell, transfer, lease, license, assign or otherwise dispose of any Company Intellectual Property, including by failing to renew or pay maintenance fees (except for (i) Intellectual Property expiring at the end of its registered or statutory protection term that cannot be renewed, (ii) the lapse of Company Intellectual Property that is not material to the business of the Company or any Company Subsidiary, and (iii) non-exclusive licenses granted by the Company or any Company Subsidiary in its customer and reseller agreements entered into with customers and resellers (in each case, with respect to clauses (i) through (iii), in the ordinary course of business consistent with past practice)); (xi) authorize, or make any commitment with respect to, any single expenditure in excess of $50,000 or any capital expenditures for the Company and the Company Subsidiaries in excess of $200,000 in the aggregate (other than expenditures contemplated by the Company’s 2011 operating plan as of the date hereof (a copy of which is set forth on Section 7.1(a)(xi)(A) of the Company Disclosure Schedule) or other capital investments approved by the Company Board prior to the date hereof and disclosed to Parent in Section 7.1(a)(xi)(B) of the Company Disclosure Schedule); (xii) enter into any new line of business outside of its existing business segments or discontinue any line of business within any existing business segment or otherwise cease operations in any business line within any existing business segment; (xiii) (A) except to the extent required by applicable Law 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, severance, change in control or other transaction bonus, termination pay 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, (B) hire any new employees, unless such hiring is in the ordinary course of business consistent with past practice and is with respect to employees having an annual base salary and incentive compensation opportunity not to exceed $100,000 (iiper employee), (C) except to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly extent required by applicable Law or indirectly, and it will cause each of its Subsidiaries not to, between by written agreements existing on the date of this Agreement and the Closing Datethat have been disclosed or made available to Parent, except as specifically contemplated 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 other provision agreement or arrangement in effect on the date of this AgreementAgreement to any employee, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) officer, director, shareholder or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities other service provider of the Company or any Company Subsidiaryof its Subsidiaries, other than whether past or present, or take any action to accelerate vesting of any right to compensation or benefits, (iD) issuances of Common Stock upon except to the exercise of stock options outstanding as of extent required by applicable Law or by written agreements existing on the date hereofof this Agreement that have been disclosed or made available to Parent, issuances enter into or amend any Contracts of stock options employment or any consulting, bonus, severance, retention, retirement or similar agreement, except for agreements for newly hired employees in the ordinary course of business consistent with past practice pursuant with an annual base salary and incentive compensation opportunity not to exceed $100,000 (per employee), (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 renew, amend, modify or terminate any existing Company Plan or benefit arrangement or any collective bargaining agreement, or (F) materially increase the benefits under any existing Company Plan or benefit arrangement or take any action to accelerate any rights, benefits or the vesting of, or the lapsing of restrictions with respect to, any stock option plans options or other stock-based compensation (other than as contemplated by this Agreement); (xiv) 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 transactions contemplated hereby other than in connection with the Company Stock Plans or from the Surviving Corporation after the consummation thereof, 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 employee benefit schemes existing as the opportunity to review and comment upon any such communications); (xv) pay, discharge, settle, satisfy, waive or compromise any material claims, obligations (absolute, accrued, contingent or otherwise) or any pending or threatened Action of or against the Company, any of the Company Subsidiaries or any of its or their respective directors or officers (including any Action that is brought by any current, former or purported holder of any capital stock or debt securities of the Company or any Company Subsidiary relating to the transactions contemplated by this Agreement), other than (A) performance of contractual obligations in accordance with their terms, (B) payment, discharge, settlement or satisfaction in the ordinary course of business consistent with past practice, (C) payment, discharge, settlement or satisfaction in accordance with their terms, of claims, liabilities or obligations that have been (x) disclosed in the most recent financial statements of the Company included in the Company SEC Filings filed prior to the date hereof and issuances of Common Stock upon exercise to the extent of such stock options disclosure or (y) incurred since the date of such financial statements in the ordinary course of business consistent with past practice, or (D) settlements for an amount not in excess of $250,000 individually or $500,000 in the aggregate and (ii) issuances of Common Stock that would not impose any material restrictions on conversion of any Series A Preferred Stock the business or Convertible Debentures outstanding as operations of the date hereofCompany or any Company Subsidiary; (xvi) except as may be required by GAAP or other applicable financial or accounting requirement, or as a result of a change in Law, make any change in accounting principles, policies, practices, procedures or methods; (xvii) change any method of Tax accounting, make, change or revoke any Tax election, file any material amended Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any closing agreement with respect to any Tax or surrender any right to claim a material Tax refund; (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) adopt or implement a stockholder rights plan or similar arrangement; (xxi) amend or modify the letter of engagement of Xxxxxxx or the Company Financial Advisor or engage other advisers or consultants in connection with the transactions contemplated hereby or other Acquisition Proposals; (xxii) implement any employee layoffs that could implicate the WARN Act; or (exxiii) acquire knowingly commit, authorize or subscribe for shares agree to take any of the foregoing actions or securities enter into any binding agreement, letter or similar 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 or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering Company Subsidiary prior to the extent that Acceptance Time. Prior to the aggregate price Acceptance Time, each of all such acquisitions or subscriptions by the Company Parent and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sellexercise, leaseconsistent with the terms and conditions of this Agreement, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000complete control and supervision over its and its Subsidiaries’ respective operations.

Conduct of Business by the Company Pending the Closing. During The Company agrees that between the period 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 (a) as set forth in Schedule 5.1 of the Company Disclosure Letter, (b) as required pursuant to or permitted by this Agreement, (c) as may be required by Law or (d) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall, and shall cause the Company Subsidiaries to, use commercially reasonable efforts to (i) preserve substantially intact the business organization of the Company and its Subsidiaries, (ii) preserve the assets and properties of the Company and its Subsidiaries in good repair and condition, (iii) keep available the services of its present officers, employees, independent contractors and consultants, and (iv) preserve substantially the current relationships of the Company and its Subsidiaries with merchants, customers, suppliers and other Persons with which the Company or any of its Subsidiaries has material business relations, and otherwise conduct its business in the ordinary course in all material respects. Without limiting the generality of the foregoing, except (a) as set forth in Schedule 5.1 of the Company Disclosure Letter, (b) as expressly required pursuant to or permitted by this Agreement, (c) as may be required by Law or pursuant to any agreement in effect on the date hereof, or (d) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), 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 8.1, the Company shall not, and shall not permit any Company Subsidiary to: (a) propose or adopt any amendments to its certificate of incorporation or bylaws or equivalent organizational documents; (b) split, combine, subdivide or reclassify, directly or indirectly, 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; (c) other than quarterly cash dividends of $0.13 per share of Common Stock (with record and payment dates consistent with past practice), declare, set aside or pay any dividend or other distribution payable in cash, stock or property (or any combination thereof) with respect to the Company’s capital stock; (d) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any Equity Interests of the Company, 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, or (ii) from holders of Restricted Shares 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 Shares; (e) authorize for issuance, issue, sell, pledge, deliver, transfer, dispose of or encumber any shares of, or securities convertible into or exchangeable for, or grant any Company Options or Restricted Shares under the Company Equity Plan or warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class, or grant to any Person any right the value of which is based on the value of Shares or other capital stock, other than (i) the issuance of Shares reserved for issuance on the date hereof pursuant to the Closing Date exercise of the Company will Options or vesting of Restricted Shares outstanding as of the date hereof, or granted after the date hereof in compliance with the terms of the Agreement and will cause (ii) the grant of Company Options or Restricted Shares pursuant to previously existing contractual arrangements of the Company (including automatic annual grants to directors); (f) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or any series of related transactions any Equity Interests in any Person or any business or division of any Person or all or a substantial portion of the assets of any Person (or business or division thereof), in each case, for consideration that exceeds $5 million in any one transaction or $15 million in the aggregate; (g) transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any of its material assets, other than (i) sales, leases and licenses in the ordinary course of business, (ii) dispositions of assets no longer used in the operation of the business (iii) factoring of accounts receivable, and (iv) for consideration that exceeds $1 million in any one transaction or $5 million in the aggregate; (h) enter into any new agreement or contract or other binding obligation of the Company or its Subsidiaries containing (A) any noncompete or similar restriction on the ability of the Company and its Subsidiaries to conduct its business as it is presently being conducted or (B) any provisions granting “most favored nation” status, unless such agreement, contract or obligation is entered into in the ordinary course of business and does not purport to bind Affiliates of the Company other than its controlled Affiliates; (i) (A) other than in the ordinary course of business: (i) create, incur or assume any indebtedness, other than (x) indebtedness under the Company’s existing credit facilities or commercially reasonable replacement facilities and (y) in order to refinance any existing indebtedness at the maturity thereof; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of any other Person that is not an affiliate of the Company for borrowed money; (iii) make any loans, advances or capital contributions to, or investments in, any other Person in an amount in excess of $20 million in the aggregate, or (B) amend and/or restructure any existing monetization structures; (j) except (i) as required by the terms of any Benefit Plan, agreement or other contract in effect on the date hereof, or (ii) to the extent necessary to comply with, or satisfy an exemption from, Section 409A of the Code without increasing the benefits provided to any Person, (A) establish, adopt or amend any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, stock option, restricted stock or other benefit plan or arrangement covering any officer, employee or director of the Company or any of its Subsidiaries (i) to conduct its operations other than for employees who are not officers or directors in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizations, keep available in a manner that would not materially increase the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities liability of the Company or any of its Subsidiaries), (B) increase the compensation or other benefits payable or to become payable to officers, employees or directors of the Company Subsidiary(other than in the ordinary course of business and consistent with past practice with respect to employees who are not officers), (C) grant any employee, officer or director of the Company any material increase in severance or termination pay, (D) enter into any new or modify any existing employment, severance, termination, retention or consulting agreement with any officer, employee or director of the Company (other than in the ordinary course of business and consistent with past practice with respect to employees who are not officers), (E) accelerate any rights or benefits, or, other than in the ordinary course of business and consistent with past practice, make any material determinations, under any Benefit Plan, (iF) issuances of Common Stock upon amend, modify or terminate any existing Benefit Plan in any manner that would increase the exercise of stock options outstanding as liability of the date hereof, issuances Company or any of stock options its Subsidiaries (other than for employees who are not officers or directors in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as in a manner that would not materially increase the liability of the date hereof and issuances of Common Stock upon exercise of such stock options and (ii) issuances of Common Stock on conversion of any Series A Preferred Stock Company or Convertible Debentures outstanding as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 Subsidiaries) or (without taking into account the price of G) except as otherwise provided in Section 5.1(e)(ii), grant any acquisition new equity awards to any officer, employee or subscription of such further shares or securities within 30 days director of the relevant Conversion Offering purchased solely using the proceeds Company or any of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering)its Subsidiaries; provided, however, that between the foregoing clauses (A), (B), (C), (D), (F) and (G) shall not restrict the Company from entering into or making available to newly hired employees or to employees in the context of promotions (in each case other than executive officers), in each case in the ordinary course, plans, agreements, benefits and compensation arrangements and nothing in this Section 5.1 shall prohibit the Company from making the cash awards set forth in Schedule 5.1(j) of the Company Disclosure Letter); (k) change any of the accounting methods used by it materially affecting its assets, liabilities or business, except for such changes required by GAAP, applicable Laws or any Government Entity; (l) except as required by Law, make (other than in the ordinary course of business consistent with past practice) or change any Tax election, settle or compromise any Tax liability of the Company or any of its Subsidiaries, make any change in Tax accounting methods, file any amended Tax Return, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund, in each case, if such action is reasonably likely to result in an increase to a Tax liability, which increase is material to the Company and its Subsidiaries; (m) permit any material insurance policy naming the Company or any of its Subsidiaries as a beneficiary or a loss payable payee to lapse, be canceled or expire unless a new policy with substantially identical coverage is in effect as of the date of this Agreement lapse, cancellation or expiration; (n) settle any material claim or material litigation, in each case made or pending against the Company, or any of its officers and directors in their capacities as such, other than the Closing Date settlement of claims or litigation in the ordinary course of business; (o) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company shall be permitted (other than the Merger); and (p) enter into any written agreement, contract, commitment or arrangement to selldo any of the foregoing, lease, transfer or otherwise dispose authorize in writing any of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During the period from The Company agrees that between the date hereof 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 will and will cause each of its Subsidiaries Disclosure Letter, (b) as specifically required by this Agreement, (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) to shall and shall cause each Company Subsidiary to, conduct its operations business in all material respects in the ordinary course of business consistent with past practice, including by using 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) 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 for (i) two (2) cash dividends on the Company Shares not to exceed $0.30 per share per dividend, and (ii) 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 and (ii) or by a wholly owned Company Subsidiary to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaseranother wholly owned Company Subsidiary; (b) take split, combine, reduce or reclassify any action to cause of its capital stock, or issue or authorize the Company's representations and warranties set forth issuance of any other securities in Article III to be untruerespect 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) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company required by applicable Law or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding Benefit Plan in existence as of the date hereof, issuances (i) increase the compensation or benefits payable or to become payable to any of stock options its directors, officers, employees or individual independent contractors other than increases in annual base salaries and target incentive compensation at times and in amounts in the ordinary course of business consistent with the annual salary review and incentive payout schedule in effect as of the date hereof, (ii) grant to any of its directors, officers, employees or individual independent contractors any increase in severance or termination pay, (iii) pay or award, or commit to pay or award, any bonuses or incentive compensation, (iv) enter into any employment, severance, or retention agreement (excluding offer letters that provide for no severance or change in control benefits) with any of its directors, officers, employees or individual independent contractors, (v) establish, adopt, enter into, amend or terminate any collective bargaining agreement or Company Benefit Plan except any amendments in the ordinary course of business consistent with past practice pursuant that do not contravene the other covenants set forth in this clause (c) or materially increase the cost to stock option plans and employee benefit schemes existing as the Company, in the aggregate, of maintaining such Company Benefit Plan, (vi) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable to any of its directors, officers, employees or individual independent contractors, (vii) terminate the employment of any executive officer of the date hereof and issuances Company or any employee of the Company who (A) is party to an employment agreement with the Company or (B) with respect to a termination of employment that occurs (I) prior to June 1, 2014, then holds unvested Company Equity Awards with respect to at least 5,000 shares of Company Common Stock upon exercise or (II) on or after June 1, 2014, then holds unvested Company Equity Awards with respect to at least 2,500 shares of such stock options and Company Common Stock, in each case, other than for cause, or (iiviii) issuances hire any employee or individual independent contractor having total annual cash compensation in excess of Common Stock on conversion $300,000; (d) make any change in financial accounting policies or procedures or any of any Series A Preferred Stock its methods of reporting income, deductions or Convertible Debentures outstanding other material items for financial accounting purposes, except as of the date hereof; orrequired by GAAP, applicable Law or SEC policy; (e) acquire authorize or subscribe for shares announce an intention to authorize, or securities enter into agreements providing for, any acquisitions of an equity interest in or the assets of any company Person or acquire any business or invest division thereof, or any mergers, consolidations or business combinations, except for (i) such transactions that collectively do not have purchase prices that exceed $10 million in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price (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 all such acquisitions or subscriptions by the Transactions), (ii) transactions between the Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries or (iii) purchases of raw materials, supplies or inventory made in the ordinary course of business consistent with past practice; (f) amend the Company Governing Documents, and shall not permit any Significant Subsidiary of the Company or other material Company Subsidiary to adopt any amendments to its Subsidiaries does not exceed $1,000,000 governing documents; (without taking g) issue, deliver, grant, sell, pledge, dispose of or encumber, or authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any shares in its capital stock (including restricted stock), voting securities or other equity interest in the Company or any Company Subsidiary or any securities convertible into account 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, 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 under any existing Company Equity Plan (except as otherwise provided by the price express terms of any acquisition Company Equity Award outstanding on the date hereof), other than (i) issuances of Company Shares in respect of any exercise of Company Stock Options or subscription the vesting, lapse of such further shares restrictions with respect to or securities within 30 days settlement of Company Equity Awards either outstanding on the date hereof or issued pursuant to clause (iii) or pursuant to Section 5.1 of the relevant Conversion Offering purchased solely using Company Disclosure Letter, and in each case, in accordance with their respective terms, (ii) transactions between the proceeds Company and a wholly owned Company Subsidiary or between wholly owned Company Subsidiaries or (iii) issuances of sale Company Equity Awards to new hires and/or promoted employees of the same class Company, in an aggregate amount not to exceed 200,000 shares of shares or securities acquired or subscribed in such Conversion Offering)Company Common Stock; provided, however, that between no such Company Equity Awards shall be granted to any person who is an executive officer of the Company as of the date of this Agreement; (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, (ii) the 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) Indebtedness for borrowed money incurred pursuant to agreements entered into by the Company or any Company Subsidiary in effect prior to the execution of this Agreement and the Closing Date set forth in Section 5.1(ii)(i) of the Company Disclosure Letter; provided that any such Indebtedness shall be permitted drawn solely in the ordinary course of business in connection with the Company’s anticipated 2014-2015 capital expenditures described on Section 5.1(ii)(n) of the Company Disclosure Letter, and in an aggregate amount not to exceed $5 million, (v) transactions at the stated maturity of such Indebtedness and required amortization or mandatory prepayments and (vi) Indebtedness for borrowed money not to exceed $5 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), inclusive; 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, transfer 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) sales of inventory, or dispositions of obsolete or worthless equipment, in the ordinary course of business, (iv) such transactions with neither a fair market value of the assets or properties nor an aggregate purchase price that exceeds $10 million in the aggregate for all such transactions and (v) 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, $5 million, (ii) does not impose any injunctive relief on the Company and the Company Subsidiaries and (iii) does not provide for the license of any sale Intellectual Property; (m) make or change any material Tax election, change any Tax accounting period for purposes of Conversion Offering Stock permitted 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 any similar provision of state, local, or non-U.S. Law) with respect to any material Tax, surrender any right to claim a material Tax refund, or take any action that would require the filing of a “gain recognition agreement” (within the meaning of the Treasury Regulations promulgated under Section 5.01(e367 of the Code) to avoid current recognition of a material amount of income or gain for U.S. federal income tax purposes; (n) except in the ordinary course of business consistent with the past practice, or in accordance with the Company’s anticipated 2014-2015 capital expenditures described on Section 5.1(ii)(n) of the Company 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), (i) enter into any Contract that would, if entered into prior to the aggregate sale price date hereof, be a Company Material Contract, or (ii) materially modify, materially amend or terminate any Company Material Contract or waive, release or assign any material rights or claims thereunder; or (p) agree, in writing or otherwise, to take any of all such stock sold does not exceed $1,000,000the foregoing actions.

Conduct of Business by the Company Pending the Closing. During the period from Between the date hereof to of this Agreement and the Closing Date earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, except (1) for any Permitted Action, (2) as set forth in Section 5.1 of the Company will Disclosure Schedule, (3) as required by Law or Order, (4) for any action taken to comply with any COVID-19 Measures, (5) as otherwise expressly contemplated by any other provision of this Agreement, or (6) with the prior written consent of Parent (other than with respect to Sections 5.1(e) and 5.1(l)(i), not to be unreasonably withheld, conditioned or delayed), the Company will, and will cause each of its Subsidiaries to, (i) to conduct its operations in all material respects in the ordinary course of business, and (ii) use 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 significant business relations. Without limiting the foregoing, except (v) for any Permitted Action, (w) as set forth in Section 5.1 of the Company Disclosure Schedule, (x) as required by Law or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated by any other provision of this Agreement, 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, take any of the following actions without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed): (a) amend or otherwise change the memorandum and articles of association or any other organizational documents of the Company or any of its Subsidiaries; (b) issue, sell, pledge, dispose of, grant, transfer or encumber, or modify or amend the terms of any awards pertaining to, 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 (i) the issuance of Shares upon the settlement of Company RSUs outstanding as of the date hereof or granted pursuant to Section 5.1(b) of the Company Disclosure Schedule or (ii) as provided in Section 5.1(b) of the Company Disclosure Schedule; (c) sell, assign, pledge, transfer, license, lease, forfeit, abandon, guarantee or encumber (other than Permitted Liens), or otherwise dispose of any material property or assets of the Company or any of its Subsidiaries (other than Company Owned Intellectual Property), except for (i) pursuant to Company Material Contracts existing as of the date of this Agreement, (ii) the sale or purchase of goods in the ordinary course of business or (iii) dispositions of obsolete or worthless equipment in the ordinary course of business; (d) acquire, sell, assign, pledge, transfer, license, sublicense, abandon, lease, pledge, covenant not to sxx or gxxxx any release under, cancel, dedicate to the public, fail to maintain, fail to prosecute, forfeit, abandon, allow to lapse, encumber (other than Permitted Liens), or otherwise dispose of any Company Owned Intellectual Property, except (i) non-exclusive licenses granted, or otherwise implied by or incidental to, the distribution, sale, or license of Company Products in the ordinary course of business consistent with past practice, and (ii) the licensing, sale, abandonment, failure to maintain, failure to prosecute, forfeiture, cancellation, dedication to the public, disposal, or allowance to lapse of Company Registered IP that is not Company Material Intellectual Property or that the Company or one of its Subsidiaries has permitted to expire or has cancelled, been allowed to lapse, abandoned, elected not to maintain or prosecute, forfeited or dedicated to the public in its reasonable business judgment; (e) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock or other Equity Interests, except for (i) dividends or other distributions paid by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company and (ii) the payment of dividends declared by the Company prior to the date of this Agreement; (f) reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other Equity Interests; (g) propose, adopt, consummate, or give effect to a merger or consolidation of the Company or any of its Subsidiaries with any Person or propose, adopt, consummate, or give effect to a plan of, or resolutions providing for, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, except the Merger; (h) acquire (including by merger, consolidation, or acquisition of stock or assets) any Person, Equity Interests, or assets, other than (i) acquisitions by the Company from any wholly owned Subsidiary or among any wholly owned Subsidiaries of the Company, (ii) acquisitions of inventory, raw materials, supplies and other property in the ordinary course of business, and (iii) acquisitions of assets permitted pursuant to Section 5.1(k); (i) incur any indebtedness for borrowed money (except for (A) letters of credit issued in the ordinary course of business, (B) borrowings under the Company’s existing revolving credit facilities in the ordinary course of business; provided that any such borrowings are repaid in full within ninety (90) days, and (C) loans or advances to direct or indirect wholly owned Subsidiaries of the Company in the ordinary course of business), 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 direct or indirect wholly owned Subsidiary of the Company) for borrowed money; (j) enter into, terminate or cancel, or agree to any material amendment or modification to or waiver under or in connection with any Company Material Contract, in each case other than, solely with respect to a Contract the primary purpose of which is for the sale or provisions of goods or services with any customer, vendor, supplier, or third-party service provider (other than any Company Material Contract of the nature described by any of clauses (ii), (iv), (v), (vi), (vii), (viii), (ix), (x) and (xiv) of Section 3.16), in the ordinary course of business (such ordinary course of business including renewals or extensions of any existing Company Material Contracts on substantially similar terms); (k) make any capital expenditures in excess of the amount budgeted for in the Company’s capital expenditure budget for the applicable period, which is attached to Section 5.1(k) of the Company Disclosure Schedule, other than expenditures made to replace or repair damaged assets or in response to operational emergencies; (l) (i) enter into any agreement to purchase or sell any interest in real property, (ii) grant or create any security interest, easement, covenant, restriction, assessment or charge affecting any leased real property or other real property, (iii) enter into any lease, sublease, license or other occupancy agreement with respect to any real property or voluntarily alter, amend, modify or terminate any of the terms of any Company Lease Agreement, or (iv) make any material changes in the construction of any such property; (m) except to the extent required by this Agreement, applicable Law or the existing terms of any Company Benefit Plan: (A) increase the cash compensation or benefits payable or to become payable to the directors, officers, employees, individual contractors or other individual service providers of the Company or any of its Subsidiaries, other than (x) increases in connection with promotions to a title of Vice President and below in amounts and on terms consistent with the schedule set forth on Schedule 5.1(m) of the Company Disclosure Schedule, and (y) annual increases in amounts and on terms consistent with the schedule set forth on Schedule 5.1(m) of the Company Disclosure Schedule, (B) establish, adopt, enter into, terminate, allow to lapse, or materially amend or modify any Company Benefit Plan, other than expirations and renewals in the ordinary course of business and other than entering into new hire offer letters and employment agreements with non-officer employees in the ordinary course of business and for which hiring would not be prohibited by subsection (H) below, (C) accelerate vesting, exercisability or funding of compensation or benefits, (D) grant any new equity-based awards or amend or modify the terms of any equity based awards, other than grants of new equity-based awards in the ordinary course of business in amounts and on terms consistent with the schedule set forth on Schedule 5.1(m) of the Company Disclosure Schedule, (E) pay or award, or commit to pay or award, any cash bonuses or cash incentive compensation other than bonuses or incentives for non-officer employees in the ordinary course of business in amounts and on terms consistent with the schedule set forth on Schedule 5.1(m) of the Company Disclosure Schedule, (F) pay or agree to pay any pension, retirement allowance or other post-termination benefit not required by the terms of any Company Benefit Plan existing as of the date hereof or (G) (i) terminate (other than for cause) the employment of, or hire, or promote, any employee with an aggregate cash compensation of $250,000 or more or with a title of Vice President or higher, or (ii) hire any employee such that the aggregate number of employees of the Company and its Subsidiaries exceeds the headcount set forth on Schedule 5.1(m) of the Company Disclosure Schedule for the applicable period; (n) make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or the interpretation or enforcement thereof, Nasdaq or by a Governmental Entity; (o) compromise, settle, waive, release, assign, commence or agree to settle any Proceeding other than (i) the payment, or satisfaction, in the ordinary course of business consistent with past practice and of liabilities reflected in or reserved against the Most Recent Balance Sheet, (ii) to preserve intact its current business organizations, keep available those that do not (A) involve the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated payment by any other provision party thereto of this Agreement, unless the Purchaser shall otherwise consent monetary damages in writing: excess of one million dollars (a$1,000,000) take any action which would individually or four million dollars (i$4,000,000) be reasonably likely to result in the circumstances described in clauses aggregate, (iB) through involve any admission of wrongdoing or equitable relief, (xxC) of Section 3.07(ainvolve any Governmental Entity and (D) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed relate to materially affect such rights of the Purchaserany Tax; (bp) take make any action loans, advances or capital contributions to, or investments in, any other Person, other than (A) to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities wholly owned Subsidiary of the Company or any Company Subsidiary, (B) in respect of travel or other than business expenses in the ordinary course of business; (i) issuances make, change or rescind any material Tax election or an annual Tax accounting period, (ii) adopt or change any material Tax accounting method, (iii) settle, consent to or compromise any material Tax claim, audit or assessment, (iv) surrender a right to a material Tax refund, (v) consent to any extension or waiver of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options any limitation period with respect to any material Tax claim or assessment (other than extensions to file Tax Returns granted routinely in the ordinary course of business consistent with past practice), or (vi) enter into a closing agreement with any Governmental Entity regarding any material Tax liability or assessment or take any position on any material Tax Return that is inconsistent with past practice or positions taken in preparing or filing similar Tax Returns in prior periods; (r) other than compensation payable to officers and directors and employee expense reimbursement obligations, in each case, pursuant to stock option plans a Company Benefit Plan, enter into or give effect to any Contract, transaction, indebtedness or other arrangement between the Company or any of its Subsidiaries, on the one hand, and employee benefit schemes existing as any of the date hereof directors, officers or affiliates of the Company and issuances of Common Stock upon exercise of its Subsidiaries or any individual in such stock options and officer’s or director’s immediate family, on the other hand; (iis) issuances of Common Stock on conversion implement any employee layoff, plant closing, reduction in force, furlough, temporary layoff, salary or wage reduction, work schedule change or other such actions that triggers the WARN Act or similar Law; (t) waive or release any material non-competition, non-solicitation, non-disclosure, non-interference, non-disparagement, or other restrictive covenant obligation of any Series A Preferred Stock current or Convertible Debentures outstanding as of the date hereofformer employee or independent contractor; or (eu) acquire authorize or subscribe for shares enter into any Contract or securities otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided herein, nothing contained in any company this Agreement is intended to give Parent or acquire any business Merger Sub, directly or invest in any joint ventureindirectly, in each case other than acquisitions the right to control or subscriptions for shares direct the Company’s or securities in connection with a Conversion Offering its Subsidiaries’ operations prior to the extent that Effective Time. Prior to the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); providedEffective Time, however, that between the date of this Agreement and the Closing Date the Company shall be permitted exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations. The parties agree to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to take the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000actions set forth on Schedule 5.1(v).

Conduct of Business by the Company Pending the Closing. During the period from The Company agrees that, between the date hereof to of this Agreement and the Closing Date Effective Time or, except as set forth in Section 5.1 of the Company Disclosure Schedule, as specifically contemplated by any other provision of this Agreement or as required by applicable Law or the regulations or requirements of the OTCQB, unless Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), the Company will (A) conduct its operations in the ordinary and usual course of business substantially consistent with past practice and (B) use its commercially reasonable efforts to preserve substantially intact its business organization and goodwill, except that the Company may consummate an equity or debt financing on or after March 12, 2014 if the merger has not been consummated by March 12, 2014 (a “Permitted Financing”) as long as the terms and conditions of such Permitted Financing are reasonable, customary and consistent with comparable market transactions and such Permitted Financing would not be an Acquisition Proposal. Between the date of this Agreement and the Effective Time, the Company will cause each periodically provide Parent updates regarding any material developments regarding the Company or its operations. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 5.1 of the Company Disclosure Schedule, as specifically contemplated by any other provision of this Agreement or as required by applicable Law or the regulations or requirements of the OTCQB, the Company shall not, between the date of this Agreement and the Effective Time, directly or indirectly, do any of the following without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed): (a) amend or otherwise change its Subsidiaries articles of incorporation or bylaws or equivalent Organizational Documents, except in connection with a Permitted Financing; (b) (i) issue or authorize the issuance of any shares of capital stock of, or other Equity Interests in, the Company 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 conduct acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities of the Company, other than the issuance of (A) Company Common Stock upon the exercise of Company Options outstanding on the date hereof, (B) Company Common Stock upon the exercise of Company Warrants outstanding on the date hereof, and/or (C) capital stock issued pursuant to a Permitted Financing, 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 of the Company, except pursuant to a Permitted Financing and/or existing contracts or written commitments or the sale or purchase of goods or other property or assets in the ordinary course of business; (c) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its operations capital stock or enter into any agreement with respect to the voting of its capital stock, except in connection with a Permitted Financing; (d) other than exercise of Company Options or warrants to purchase Company Common Stock, reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other securities, except in connection with a Permitted Financing; (e) acquire (including by merger, consolidation, or acquisition of stock or assets) any Equity Interest in or all or substantially all of the assets of any other person, other than acquisitions of assets in the ordinary course of business; (f) 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, in each case, other than the Promissory Note, the indebtedness and promissory notes disclosed in the Company SEC Filings prior to the date hereof, and any Permitted Financing. (g) except as may be required by applicable Law or any Company Benefit Plan, contractual commitments or corporate policies in existence on the date of this Agreement: (i) materially increase the compensation or benefits payable or to become payable to its directors, officers, employees or consultants; or (ii) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer, 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, employee, consultant or other service provider, except to the extent required by applicable Law; (h) except in connection with a Permitted Financing and/or in the ordinary course of business, terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract; (i) waive, release, assign, settle or compromise any material claims, litigation or arbitration except (i) in the ordinary course of business or (ii) for amounts, individually or in the aggregate, not to exceed $50,000 (in excess of third party insurance); (j) make any material Tax election or settle or compromise any material liability for Taxes; (k) make any material change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated required by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing:GAAP or by a Governmental Entity; (al) take any action which that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; (im) take, or agree to take, any action that would be reasonably likely to delay the effectiveness of the Registration Statement, including, without limitation, any business combination that would result in a requirement to include financial statements for the circumstances described acquired entity or assets in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of AmendmentRegistration Statement, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and except in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaserconnection with a Permitted Financing; (bn) take any action to cause the Company's representations and warranties set forth or conduct its business in Article III to be untrue; (c) agree to take any a manner such that as of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities amount derived by subtracting the total current liabilities of the Company or any and the Company Subsidiary, other than (i) issuances of Common Stock upon Subsidiaries on a consolidated basis from the exercise of stock options outstanding as total current assets of the date hereofCompany and the Company Subsidiaries on a consolidated basis will be less than $500,000, issuances determined in accordance with GAAP and consistent with the historical audited financial statements of stock options the Company included in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise of such stock options and (ii) issuances of Common Stock on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereofSEC Filings; or (eo) acquire authorize or subscribe for shares enter into any agreement or securities in otherwise make any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering commitment to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and do any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During the period from Between the date hereof to of this Agreement and the Closing Date 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 will Disclosure Letter or as otherwise expressly required 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) to conduct its operations only in the ordinary course of business in a manner consistent with past practice, (ii) 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, and (iii) pay its debts in the ordinary course of business in a manner consistent with past practice and uncontested Taxes when due; provided, that, notwithstanding anything herein to the contrary, the Company and each of its Subsidiaries may take (or refrain from taking) all such actions as they determine are reasonably necessary or advisable in light of the then-current operating conditions and developments as a result of COVID-19; provided, that, neither the Company nor any of its Subsidiaries shall take or omit to take any action in respect of COVID-19 which would otherwise 89887722_19 150326672.16 require Parent’s consent pursuant to this Section 5.1 without first consulting with Parent (which, for clarity, action or inaction will not require Parent’s consent unless otherwise required under Sections 5.1.1 to 5.1.22, inclusive, which consent shall be deemed to be given if the action is required by Law or at the direction of a Governmental Entity, or if Parent fails to respond within 24 hours after confirmed receipt of such request). Without limiting the foregoing, except as set forth in Section 5.1 of the Company Disclosure Letter or as otherwise expressly contemplated by any other provision of this Agreement, the Company will not, and will 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, take any of the following actions without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed): 5.1.1 amend its certificate of incorporation or bylaws or equivalent organizational documents (including, for the avoidance of doubt, any certificate of designation of any class or series of preferred stock or any similar instrument); 5.1.2 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 or Company Warrants, in each case outstanding as of the date hereof in accordance with their terms as in effect on the date hereof; 5.1.3 sell, pledge, dispose of, transfer, lease, license, guarantee or encumber any property or assets (including any product, product segment or business unit) of the Company or any of its Subsidiaries, except (i) pursuant to existing Contracts set forth in the Company Disclosure Letter, (ii) the sale, purchase or non-exclusive license of inventory, property and goods or the provision of services, in the ordinary course of business consistent with past practice, (iii) obsolete or worn out equipment, or (iv) property or assets not deemed by the Company to be material to the business and having a value less than $100,000; 5.1.4 sell, assign, pledge, transfer, license, abandon, lease, encumber, abandon, permit to lapse, or otherwise dispose of any Company Material Intellectual Property, except for non-exclusive licenses in the ordinary course of business consistent with past practice, nor disclose any of its material trade secrets to a third party other than pursuant to a confidentiality agreement; 5.1.5 declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock or other 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 in the ordinary course of business consistent with past practice; 89887722_19 150326672.16 5.1.6 reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other Equity Interests, except with respect to any wholly owned Subsidiary of the Company or pursuant to the terms of Company Options or Company RSUs outstanding as of the date hereof in accordance with their terms; 5.1.7 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; 5.1.8 acquire (including by merger, consolidation, or acquisition of stock or assets) any Person or assets, other than acquisitions of inventory, raw materials and other property in the ordinary course of business consistent with past practice; 5.1.9 incur any indebtedness for borrowed 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 for revolving credit borrowings under the Company’s Credit Facilities (as in effect on the date of this Agreement) for working capital purposes or Equipment Leases for purchase money equipment financing, in each case, in the ordinary course of business and consistent with past practice; 5.1.10 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 $100,000 in the aggregate; 5.1.11 except to secure indebtedness and other obligations under the Credit Facilities or Equipment Leases, create or incur any Lien on any material assets of the Company or its subsidiaries other than (A) Permitted Liens or (B) Liens granted in connection with the Credit Facilities, Equipment Leases, and leases and other financing arrangements entered in the ordinary course; 5.1.12 make any loans or advances to, guarantees for the benefit of, or enter into any other material transaction with any director, officer, employee or individual independent contractor of the Company or its Subsidiaries, other than advances for business, travel-related, relocation or other similar expenses in accordance with any currently existing Company policy; 5.1.13 terminate, cancel or renew, or agree to any material amendment to or waiver under any Company Material Contract or any Government 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 consistent with past practice; 5.1.14 make any capital expenditure or series of related capital expenditures in excess of the Company’s capital expenditure budget attached to Section 5.1.14 of the Company Disclosure Letter, other than capital expenditures or series of related capital expenditures that are not, individually or in the aggregate, in excess of $160,000; 89887722_19 150326672.16 5.1.15 except as required pursuant to the terms of any Company Benefit Plan in effect as of the date of this Agreement or as otherwise required by applicable Law, (A) grant or provide any severance or termination payments or benefits to any current or former director, officer, employee or individual independent contractor of the Company or its Subsidiaries, (B) increase the salary, wages, or bonuses payable to any director, officer, employee or individual independent contractor of the Company or its Subsidiaries, except, (1) with respect to employees of the Company or its Subsidiaries who are not Executive Officers and whose annual base compensation is less than $150,000 after giving effect to such increases, increases in the ordinary course of business consistent with past practice and (ii2) to preserve intact its current business organizations, keep available the service payment of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly bonuses or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options commissions in the ordinary course of business consistent with past practice pursuant for completed performance periods based on actual performance, (C) establish, adopt, amend or terminate any Company Benefit Plan except for amendments to stock option plans broad-based Company Benefit Plans made in the ordinary course of business consistent with past practice that do not materially increase the expense of maintaining such plan or the liability of the Company or any of its Subsidiaries with respect to such plan, (D) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan (including with respect to Company Options and Company RSUs), (E) grant any new awards, or amend or modify the terms of any outstanding awards (including any Company Options or Company RSUs), (F) hire, engage or terminate (other than for cause) any director, officer, employee benefit schemes existing or individual independent contractor with annual base compensation in excess of $150,000, (G) hire or terminate the employment of any Executive Officer other than for cause, or (H) communicate with the officers, directors, employees or individual independent contractors of the Company or any of its Subsidiaries with respect to the compensation, benefits or other treatment they will receive following the Effective Time except for such communication approved by Parent in advance of such communication and communications consistent with those already made by Parent; 5.1.16 institute any reductions in force or layoffs, put any employees on unpaid leave or furlough, or materially reduce the hours or weekly pay of any employees; 5.1.17 negotiate, enter into, amend or extend any a collective bargaining agreement or other Contract with any Union, except as required by Law after providing prior written notice to Parent; 5.1.18 make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; 5.1.19 compromise, settle or agree to settle any Proceeding other than, subject to Section 5.15, 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 $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; 5.1.20 except as required by applicable Law, (i) make, change or revoke any material Tax election, (ii) elect or change any material method of accounting for Tax purposes or Tax accounting periods, (iii) file any amended Tax Return with respect to any material Taxes, (iv) agree to any extension of the statute of limitations in respect of any material Tax claim or 89887722_19 150326672.16 assessment, (v) surrender any right to claim a material Tax refund, (vi) prepare any income or other material Tax Return in a manner materially inconsistent with past practice, (vii) settle or compromise any material Tax dispute, audit, investigation, proceeding, claim, assessment or liability, (viii) incur any material Taxes outside the ordinary course of business, or (ix) enter into any contractual obligation in respect of income or other material Taxes with any Governmental Entity; 5.1.21 Except as permitted by Section 5.1.15, enter into any Contract that both (i) would be a Company Material Contract if entered into prior to the date hereof and issuances of Common Stock upon exercise of such stock options and (ii) issuances of Common Stock on conversion of any Series A Preferred Stock contains a change in control or Convertible Debentures outstanding as similar provision that would trigger a consent right in favor of the date hereofcounterparty in connection with the Merger; or (e) acquire 5.1.22 authorize or subscribe for shares enter into any Contract or securities in otherwise make any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering commitment to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and do any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During the period from The Company agrees that, between the date hereof to of this Agreement and the Closing Date 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 will Disclosure Schedule, as required by applicable Law or as required or expressly permitted by this Agreement, or otherwise 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 Company Subsidiary to, (i) to conduct its operations only in the ordinary course of business consistent with past practice and (ii) use its commercially reasonable efforts to preserve substantially intact its current business organizationsorganization, to keep available the service services of its current key officers and employees and to preserve its the goodwill of and maintain satisfactory relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others those Persons having business dealings with it relationships with the intention that Company or any of its goodwill and ongoing business shall Subsidiaries. Without limiting the foregoing, except as set forth in Section 5.1 of the Company Disclosure Schedule, as required by applicable Law or as required or expressly permitted by of this Agreement, or otherwise with the prior written consent of Parent (not to be unimpaired at unreasonably withheld, conditioned or delayed), the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries shall not permit any Company Subsidiary to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision earlier of the Effective Time and the termination of this AgreementAgreement in accordance with Article 7, unless the Purchaser shall otherwise consent in writingdirectly or indirectly: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) amend, modify, waive, rescind or otherwise change its certificate of Section 3.07(a) incorporation, bylaws or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaserequivalent organizational documents; (b) take issue, sell, pledge, dispose of, grant, transfer or encumber any action to cause shares of capital stock of, or other Equity Interests in, the Company's representations Company or any Company Subsidiary, or any rights based on the value of any such Equity Interests (except for transactions between the Company and warranties set forth any wholly owned Company Subsidiary or among wholly owned Company Subsidiaries), other than (i) the issuance of Shares upon the exercise of Company Options and the vesting of Company RSUs outstanding as of the date hereof in Article III accordance with their terms on the date hereof or otherwise permitted to be untruegranted hereunder in accordance with their terms or (ii) pledges of shares in connection with the incurrence of Indebtedness permitted under Section 5.1(h) below or required under the Existing Loan Agreement as in effect on the date hereof; (c) agree sell, pledge, dispose of, transfer, assign, lease, grant an exclusive license or a nonexclusive license (other than in the ordinary course of business consistent with past practice), abandon, dedicate to take the public, or permit to lapse or fail to use reasonable efforts consistent with past practice to protect or prosecute (solely in the case of material Company Intellectual Property), any material property or assets of the actions described Company or any Company Subsidiary (other than transactions between the Company and any wholly owned Company Subsidiary or among wholly owned Company Subsidiaries), except (i) pursuant to Contracts in Sections 5.01(aeffect prior to the date hereof (as such Contracts may be modified, extended or amended in the ordinary course of business consistent with past practice and, if applicable, in compliance with Section 5.1(j)), which are set forth on Section 5.1(c)(i) of the Company Disclosure Schedule, (ii) tangible or physical property or assets, if the fair market value of such property or assets does not exceed $2,000,000 in the aggregate, or (iii) Permitted Liens and Liens securing (bA) aboveIndebtedness permitted to be incurred by Section 5.1(h) of this Agreement or (B) to the extent such Liens are required under the terms of the Existing Loan Agreement as in effect on the date hereof, obligations under the Existing Loan Agreement and the Loan Documents (as defined in the Existing Loan Agreement); (d) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock or other Equity Interests (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 or other Equity Interests; (e) reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, or other Equity Interests, except as set forth (i) the acquisition by the Company of Shares in Section 5.01(d) connection with the surrender of Shares by holders of Company Options in order to pay the exercise price of the Disclosure Schedule, from Company Option in accordance with the terms of such Company Options as in effect on the date hereof and prior hereof, (ii) the withholding or disposition of Shares to satisfy withholding Tax obligations with respect to awards granted pursuant to the Closing Date Company Equity Plans in accordance with the terms of such awards as in effect on the date hereof, or (iii) upon the "Blackout Period")forfeiture of outstanding Company Options or Company RSUs pursuant to their terms upon the termination of the employment of the holder thereof or otherwise; (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, issue dissolution, restructuring, recapitalization or sell any equity securities or securities exercisable or convertible into equity securities other reorganization of the Company or any Company Subsidiary, other than a merger or consolidation of a wholly owned Company Subsidiary with and into another wholly owned Company Subsidiary; (g) acquire (including by merger, consolidation, or acquisition of stock or assets), any Person; (h) incur any Indebtedness (other than guarantees of obligations of the Company and/or any direct or indirect wholly owned Company Subsidiary), except for (i) issuances refinancings of Common Stock upon existing Indebtedness; provided that any Indebtedness incurred pursuant to any such refinancing (A) is prepayable at any time without penalty or premium, (B) has a principal amount that does not exceed the exercise of stock options outstanding as principal amount of the refinanced Indebtedness plus accrued and unpaid interest thereon and (C) has an all-in cost of funds (including without limitation, interest, margin, original issue discount and upfront fees) prior to the Closing that does not exceed the all-in cost of the refinanced Indebtedness through the Closing, (ii) borrowings in the ordinary course of business under the Revolving Credit Facility (as defined in the Existing Loan Agreement) (as in effect on the date hereofhereof or as may be modified, issuances extended, amended, refinanced or replaced in the ordinary course of stock options business) in accordance with the terms of the Existing Loan Agreement (as in effect on the date hereof or as may be modified, extended, amended, refinanced or replaced in the ordinary course of business); provided that (A) the Company shall notify Parent as promptly as practicable following any such borrowings and (B) any modification, extension, amendment, refinancing or replacement of the Existing Loan Agreement (1) shall ensure that all Indebtedness incurred under the Existing Loan Agreement is prepayable at any time without penalty or premium, (2) shall not increase the principal amount of Indebtedness outstanding under the Existing Loan Agreement (other than as a result of capitalizing accrued and unpaid interest thereon), (3) shall not increase the commitment under the Existing Loan Agreement and (4) shall not increase the all-in cost of funds (including without limitation, interest, margin, original issue discount and upfront fees) of Indebtedness incurred under the Existing Loan Agreement through the Closing, or (iii) letters of credit and similar instruments issued in the ordinary course of the Company’s business, consistent with past practice, including the pledging of cash or other security as may be required by the issuer; (i) make any loans, advances or capital contributions to, or investments in, any other Person (other than any Company Subsidiary) in excess of $2,000,000 in the aggregate; (j) (A) enter into any new joint venture, (B) renew, modify, or extend any Contract identified on Section 5.1(j)(B) of the Parent Disclosure Schedule, (C) accelerate in any material respect the performance by the Company or any Company Subsidiary under any Company Material Contract other than in the ordinary course of business consistent with past practice pursuant or (D) except in the ordinary course of business consistent with past practice and as would not, after the Effective Time, restrict or limit, in any respect, the operations of Parent or the Parent Subsidiaries (other than the Surviving Corporation and its Subsidiaries) or require performance by any of them, enter into, renew materially modify or amend, cancel or terminate or waive, or release or assign any rights or claims with respect to, any Company Material Contract; (k) except as required by Law or to stock option plans and comply with any Benefit Plan as in effect on the date of this Agreement, (i) increase the compensation or benefits of any employee benefit schemes existing as of the date hereof Company, except, with respect to any employee at the level of Vice President or below, for routine increases in cash compensation in the ordinary course of business consistent with past practice or in connection with promotions or normal merit increases in base salaries or base wages and issuances of Common Stock upon exercise of such stock options and benefit levels, not to exceed 3% in the aggregate, (ii) issuances grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any employee of Common Stock the Company or any Company Subsidiary (other than, with respect to (A) any newly hired employee hired without violating the terms of this Agreement and (B) any employee who is promoted in the ordinary course of business consistent with past practice, severance rights under a severance plan in effect on conversion the date of this Agreement), or establish, adopt, enter into or amend any Benefit Plan or any agreement or plan that would constitute a Benefit Plan or any collective bargaining, bonus, profit sharing, thrift, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan or agreement for the benefit of any Series A Preferred Stock employee, director or Convertible Debentures outstanding as independent contractor, (iii) take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Benefit Plan, (iv) take any action to fund any trust or similar funding vehicle in advance of the date hereof; or payment of compensation or benefits under any Benefit Plan (e) acquire except for payment of insurance premiums, contributions to tax-qualified plans, or subscribe for shares or securities in any company or acquire any business or invest in any joint venturepayment of employment Taxes, in each case as required under applicable Law or the applicable Benefit Plan), (v) terminate the employment of any executive officer of the Company, other than acquisitions for cause, or subscriptions for shares (vi) hire any employee or securities individual independent contractor having a total annual compensation (including salary, bonus and benefits) in connection with a Conversion Offering excess of $200,000, other than any employee or individual independent contractor hired to the extent that the aggregate price of all such acquisitions replace an employee or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between individual independent contractor whose employment terminates after the date of this Agreement but only if the compensation and benefits provided to such new hire are not greater than those provided to the departed individual being replaced by the new hire; (i) forgive any loans to directors, officers, employees or any of their respective affiliates or (ii) enter into any transactions or Contracts with any affiliates or other Person that would be required to be disclosed by the Company under Item 404 of Regulation S-K of the SEC other than in the ordinary course of business and consistent with past practice; (m) (i) make any material change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or Regulation S-X promulgated under the Exchange Act or applicable rules and regulations of the SEC or (ii) amend or modify any Privacy Policy of the Company or any Company Subsidiary except as required by Law or to the extent already reflected in the corresponding privacy policy of Parent for the applicable jurisdiction; (n) waive, release, assign, settle or compromise any (i) governmental complaint or Proceeding or (ii) claims, liabilities or obligations arising out of, related to or in connection with litigation (other than litigation arising in connection with this Agreement or the transactions contemplated hereby) or other Proceedings other than settlements of, or compromises for, (A) any litigation or other Proceedings as to which Parent or any Parent Subsidiaries and the Closing Date Company or any Company Subsidiaries are parties to a joint defense agreement, provided that Parent and Parent Subsidiaries and the Company shall be permitted and the Company Subsidiaries are concurrently settling such litigation or other Proceeding on substantially equivalent settlement terms, or (B) any such litigation or other Proceedings (x) that do not impose equitable relief on or involve the admission of wrongdoing by the Company or any Company Subsidiary or any of its or their officers or directors, or establish a materially adverse precedent for similar settlements by Parent and the Parent Subsidiaries and (y) where amounts paid in such settlement are less than $1,000,000 individually and $5,000,000 in the aggregate; (i) make, change or rescind any material Tax election, (ii) change or adopt any annual Tax accounting period or adopt (other than in the ordinary course of business) or change any material method of Tax accounting, (iii) file any amended income Tax Return or material non-income Tax Return (including any hotel occupancy Tax Return), (iv) settle or compromise any material Tax liability or any audit or other proceeding relating to sella material Tax or surrender any right to claim a material refund of Taxes, lease(v) seek any Tax ruling from any taxing authority, transfer (vi) enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) or any binding agreement with any tax authority pursuant to a voluntary disclosure or compliance program offered by such tax authority to permit taxpayers to voluntarily disclose any potential outstanding tax liability, or (vii) otherwise dispose undertake the Tax restructuring project described by the Company as “Project Simplify”; (p) make or agree to make any capital expenditure or expenditures, or enter into any agreements or arrangements providing for capital expenditures, except, in each case, for capital expenditures (i) in respect of any sale of Conversion Offering Stock permitted under Section 5.01(ecapitalized labor, that do not exceed by more than 5%, in the aggregate, the budgeted amount therefor set forth in the capital expenditure budget made available to Parent prior to the date hereof (the “Budget”) and (ii) other capital expenditures that do not exceed by more than 10%, in the aggregate, the budgeted amount set forth in the Budget; (q) to the extent commercially practicable, fail to maintain insurance consistent with past practices for the business of the Company and the Company Subsidiaries; or (r) agree, authorize or enter into any Contract to do any of the foregoing or otherwise make any commitment to do any of the foregoing. Parent will, promptly following the date hereof, designate two individuals from either of whom the Company may seek approval to undertake any actions not otherwise permitted to be taken under Section 5.1 of this Agreement, and will ensure that such persons (or substitute(s) therefor notified to the aggregate sale price Company in accordance with Section 8.3) will respond, on behalf of all the Parent, to the Company’s requests in an expeditious manner but in any event, no later than three Business Days from delivery of the Company’s request by email or facsimile as contemplated by Section 8.3. An approval of either such stock sold does not exceed $1,000,000individual shall constitute a consent of Parent.

Conduct of Business by the Company Pending the Closing. During the period from Between the date hereof to of this Agreement and the Closing Date earlier of the Effective Time or the termination of this Agreement in accordance with ARTICLE 7, except as required by Law or Order or as set forth in Section 5.1 of the Company will 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, use its commercially reasonable efforts to (i) to conduct its business and operations, and the business and operations of each of the Company’s Subsidiaries, in all material respects in the ordinary course of business consistent with past practices and, to the extent consistent therewith, use reasonable best efforts to maintain and preserve intact the Company’s and its Subsidiaries’ business organization, assets and properties, and (ii) 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 significant business relations. Without limiting the foregoing, as required by Law or Order or as set forth in Section 5.1 of the Company Disclosure Schedule or as otherwise expressly contemplated by any other provision of this Agreement, 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 or the termination of this Agreement in accordance with ARTICLE 7, directly or indirectly, take any of the following actions without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed in the case of Sections 5.1(h), 5.1(k), 5.1(m) and 5.1(o) only): (a) amend its articles of incorporation or by-laws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, transfer or encumber any Minority Investments or 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 or Company PRSUs that were, in each case, outstanding as of the date hereof in accordance with their respective terms; (c) sell, pledge, dispose of, transfer, lease, guarantee or encumber (other than Permitted Liens) any material property or assets of the Company or any of its Subsidiaries, except (i) pursuant to existing Contracts in the ordinary course of business consistent with past practice, (ii) the sale or purchase of goods or inventory in the ordinary course of business consistent with past practice, or (iii) the disposition of obsolete, surplus or worn out assets, inventory or equipment or assets that are no longer used in the ordinary course of the Company’s business; (d) (i) sell, assign, pledge, transfer, license, abandon, or otherwise dispose of any Company Owned Intellectual Property, except in the ordinary course of business consistent with past practice and or (ii) to preserve intact its current business organizationsescrow, keep deliver, license, disclose, or otherwise make available any source code of any proprietary software of the service Company or any of its current officers Subsidiaries to any Person (other than to Parent and to employees or contractors in the ordinary course of business and preserve subject to written confidentiality and non-disclosure obligations); (e) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its relationships with customerscapital stock or other Equity Interests, suppliersexcept for dividends or other distributions paid by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company; (f) reclassify, distributorscombine, lessorssplit, creditorssubdivide or amend the terms of, vendorsor redeem, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall notpurchase or otherwise acquire, directly or indirectly, and it will cause each any of its capital stock or other Equity Interests, except with respect to any wholly owned Subsidiary of the Company; (g) merge or consolidate the Company or any of its Subsidiaries not towith any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, between the date of this Agreement and the Closing Datedissolution, except as specifically contemplated by any restructuring, recapitalization or other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities reorganization of the Company or any Company Subsidiaryof 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) any Person or assets or the Equity Interests of any Person, other than (i) issuances acquisitions by the Company from any wholly owned Subsidiary or among any wholly owned Subsidiaries of Common Stock upon the exercise Company or (ii) acquisitions of stock options outstanding inventory, raw materials, supplies and other property in the ordinary course of business consistent with past practice; (i) (i) incur any Indebtedness, (ii) issue any debt securities, (iii) assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), any Indebtedness of any Person (other than a wholly owned Subsidiary of the Company), (iv) redeem, repurchase, cancel or otherwise acquire any Indebtedness (directly, contingently or otherwise), except in each case (A) for borrowings under the Company’s existing credit facilities, the Company’s receivables securitization facility, the Company’s equipment financing facility and the Company’s customer financing program in the ordinary course of business consistent with past practice, (B) letters of credit for the benefit of Company vendors in the ordinary course of business consistent with past practice, and (C) capital leases in the ordinary course of business consistent with past practice, or (v) agree to any material amendment to or waiver of any Contract relating to any Indebtedness; (j) make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly owned Subsidiary of the Company); (k) (i) terminate or cancel, 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, issuances of stock options would be a Company Material Contract in each case other than in the ordinary course of business consistent with past practice pursuant (such ordinary course of business including renewals or extensions of any existing Company Material Contracts and amendments that accompany such renewals or extensions in the ordinary course of business consistent with past practice) or other extensions or renewals of material Contracts related to stock option plans Company Leased Real Property (and, for the avoidance of doubt, the Company and employee benefit schemes its Subsidiaries, as applicable, will not fail to exercise any right of renewal with respect to any Lease, except in the ordinary course of business consistent with past practices) or (ii) enter into any Contract that obligates the Company or any of its Subsidiaries to pay more than $1,000,000 in the aggregate to any third party (other than in respect of purchases of products from suppliers that are to be sold to customers in the ordinary course of business); (l) other than as set forth on Section 5.1(l) of the Company Disclosure Schedule, make any capital expenditure in excess of $1,000,000 (individually or in the aggregate); (m) except to the extent required by this Agreement, applicable Law or the existing as terms of any Company Benefit Plan or Contract: (i) increase or commit to increase the compensation payable or to become payable to the directors, officers or employees of the Company or any of its Subsidiaries, except, in the case of non-officer employees only, for annual merit based increases in base salary (and corresponding increases in annual target bonus opportunity) in the ordinary course of business consistent with past practice of no more than 3% in the aggregate for all employees; (ii) amend or terminate any Company Benefit Plan, or establish, adopt, or enter into any new such arrangement that if in effect on the date hereof and issuances would be a Company Benefit Plan (other than employment agreements that would not be required to be listed on Section 3.12(a) of Common Stock upon exercise the Company Disclosure Schedule if in effect on the date hereof), unless such amendment or new arrangement is not expected to result in any material cost to the Company; (iii) accelerate or commit to accelerate the vesting, payment, exercisability or funding of such stock options and any compensation or benefits including under any Company Benefit Plan; (iv) grant or announce any cash, severance or equity or equity-based awards or other compensation or benefits; or (v) terminate (other than for cause) the employment of, or hire or promote, any employee, officer or consultant with a title of Vice President or above or with annual salary of $250,000 or more; (n) implement, adopt or make any change in accounting policies, practices, principles, methods or procedures, other than as required by Law, GAAP, NASDAQ or by a Governmental Entity; (o) compromise, settle or agree to settle any material Proceeding other than (i) the payment, or satisfaction, in the ordinary course of business of liabilities reflected or reserved against in the Company SEC Financial Statements, or (ii) issuances those that involve only the payment by the Company or its Subsidiaries, after taking into account amounts paid or payable by insurance, of Common Stock on conversion monetary damages not in excess of $500,000 individually, in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries; (p) take or omit to take any action that would or would reasonably be expected to result in a Company Material Adverse Effect; (q) implement or announce any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions, work schedule changes or other such actions that would implicate the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar Law; (r) waive or release any noncompetition, non-solicitation, nondisclosure, noninterference non-disparagement or other restrictive covenant obligation of any Series A Preferred Stock current or Convertible Debentures outstanding former employee, officer or consultant; modify, extend, terminate or enter into any Labor Agreement or recognize or certify any labor union, labor organization, works council or group of employees as the bargaining representative for any Employees; (s) enter into any new line of business; (t) fail to maintain with financially responsible insurance companies, insurance in such amounts and against such risks and losses as is maintained by it as of the date hereof; (u) make or change any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, settle any material Tax claim, audit or assessment, file any amended Tax Return, file any material Tax Return in a manner inconsistent with past practice, enter into any Tax Sharing Agreement or closing agreement relating to any material Tax, surrender any right to claim a material Tax refund, incur any material Taxes outside the ordinary course of business, or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment or purchase any Tax credits; (v) permit any Permits to lapse (or otherwise fail to renew) or be cancelled (other than to the extent the applicable Permit becomes obsolete, redundant, or no longer required by or advisable under applicable Law); or (ew) acquire authorize or subscribe for shares or securities enter into any Contract in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering relation to the extent that the aggregate price of all such acquisitions foregoing or subscriptions by the Company and otherwise agree or make any commitment to do any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During the period from (a) The Company agrees that, between the date hereof of this Agreement and until the earlier of the Effective Time and the termination of this Agreement, except as set forth in Section 6.1(a) of the Company Disclosure Schedule, as otherwise expressly required or permitted by this Agreement, as required by applicable Law, as deemed necessary by the Company in good faith to preserve the viability of the business directly in response to pandemic conditions related to the Closing Date coronavirus disease (COVID-19) or as consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company will will, and will cause each of its Subsidiaries Company Subsidiary to (i) to conduct its operations business in the ordinary course consistent with past practice, and (ii) 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 to preserve the current relationships of the Company and each Company Subsidiary with each of the key customers, suppliers and other Persons with whom the Company or any Company Subsidiary has business relations that are material to the Company or any Company Subsidiary, taken as a whole. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 6.1(a) of the Company Disclosure Schedule, as otherwise expressly required or 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 shall not, and shall not permit any Company Subsidiary to, between the date of this Agreement and until the earlier of the Effective Time and the termination of this Agreement, directly or indirectly, take any of the 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 series of its shares or other Equity Interests, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its shares or other Equity Interests (other than expressly required under any Contract 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, stock, property or a combination thereof) with respect to any of its shares (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 shares; (iv) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire or offer to acquire, directly or indirectly, any of its shares or other Equity Interests, or securities convertible or exchangeable into or exercisable for any of its shares or other Equity Interests, except pursuant to 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) acquire (including by merger, consolidation, or acquisition of stock or assets) any 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 $10,000,000 (or an equivalent amount in RMB) individually and $10,000,000 (or an equivalent amount in RMB) in the aggregate for all such transactions by the Company and the Company Subsidiaries; (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 $10,000,000 (or an equivalent amount in RMB) 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. (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); (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 $10,000,000 (or an equivalent amount in RMB) in the aggregate; (ix) sell, transfer, assign, license, grant any other rights (including any covenant not to xxx, 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 (ii) pursuant to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectlyappropriate confidentiality agreements, and it will cause each non-exclusive licenses of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated Intellectual Property granted by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options Subsidiary to its customers in the ordinary course of business consistent with past practice pursuant practice); (x) authorize, or make any commitment with respect to, any single capital expenditure in excess of $10,000,000 (or an equivalent amount in RMB) or capital expenditures for the Company and the Company Subsidiaries in excess of $10,000,000 (or an equivalent amount in RMB) in the aggregate; (xi) enter into any new line of business outside of its existing business segments that is material to the Company and the Company Subsidiaries taken as a whole; (xii) (A) grant or announce any stock option plans option, equity, equity-linked or incentive awards, (B) subject to Section 6.12(b), 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 $10,000,000 (or an equivalent amount in RMB), (C) hire (or enter into any employment agreements with) any employees having a total annual base salary and incentive compensation opportunity in excess of $10,000,000 (or an equivalent amount in RMB), (D) pay or agree to pay any pension, retirement allowance, termination or severance pay, bonus or other employee benefit schemes 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) 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; (xiv) materially change any method of 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 date hereof statute of limitations with respect to the assessment or determination of Taxes, enter into any material closing agreement with respect to any Tax, surrender any right to claim a material Tax refund, fail to pay any material Taxes as they become due and issuances payable, or take any other similar action relating to the filing of Common Stock upon exercise any Tax Return or the payment of any Tax; (xv) 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 $10,000,000 (or an equivalent amount in RMB) in the aggregate, (B) entailing the incurrence of (x) any obligation or liability of the Company or any Company Subsidiary in excess of such stock options and amount, or (iiy) issuances obligations that would impose any material restrictions on the business or operations of Common Stock the Company or any of the Company Subsidiaries, or (C) that is brought by or on conversion behalf of any Series A Preferred Stock current, former or Convertible Debentures outstanding as purported holder of any shares or debt securities of the Company or any Company Subsidiary relating to the transactions contemplated by this Agreement; (xvi) (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 Company Material Contract, VIE Contract or Contract that, 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; (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, 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); (xix) 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; or (exx) acquire knowingly commit, authorize or subscribe for shares agree to take any of the foregoing actions or securities enter into any letter of intent (binding or non-binding) or similar agreement or arrangement with respect to any of the foregoing actions. (xxi) 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 or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering Company Subsidiary prior to the extent that Effective Time. Prior to the aggregate price Effective Time, each of all such acquisitions or subscriptions by the Company Parent and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sellexercise, leaseconsistent with the terms and conditions of this Agreement, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000complete control and supervision over its and its respective Subsidiaries’ respective operations.

Conduct of Business by the Company Pending the Closing. During The Company agrees that, between the period from date of this Agreement and the Effective Time, except as set forth in Section 7.1 of the Company Disclosure Schedule, as otherwise expressly permitted or required 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 with respect to the matters in subparagraph (i), (l), (n), (o) or (q) below), the Company shall, and shall cause the Company Subsidiary to, in all material respects (it being understood that in no event shall the Company's participation in the negotiation (including activities related to due diligence), execution, delivery, pendency, public announcement (in accordance with this Agreement) of, or the Company's performance of any of this Agreement or the performance of the transactions contemplated herein or the consequences thereof on the respective businesses of the Company and the Company Subsidiary, be considered a breach of any of the provisions of this Section 7.1), (i) conduct its business in the ordinary course consistent with past practice and (ii) use commercially reasonable efforts to preserve the current relationships of the Company and the Company Subsidiary with each of the customers, suppliers and other Persons with whom the Company or the Company Subsidiary has significant business relations as is reasonably necessary to preserve substantially intact its business organization. Without limiting the foregoing, and as an extension thereof, except as set forth in the Company Disclosure Schedule, as otherwise expressly permitted or required 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 with respect to the matters in subparagraph (i), (l), (n), (o) or (q) below), the Company shall not, and shall not permit the Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following: (a) amend or otherwise change the Company Certificate, the Company By-laws or equivalent organizational documents of the Company Subsidiary; (b) except as permitted by Section 7.1(k) below, issue, deliver, sell, pledge or encumber, or authorize, propose or agree to the issuance, delivery, sale, pledge or encumbrance of, any shares of its capital stock, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock (other than pursuant to the exercise of Company Options, RSUs, warrants, conversion rights and other contractual rights existing on the date hereof that have been disclosed in the Company Disclosure Schedule); (c) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by the Company Subsidiary to the Closing Date Company), or enter into any agreement with respect to the voting of its capital stock; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other Equity Interests, except pursuant to the exercise or settlement of Company Options, RSUs, warrants, conversion rights, employee severance, retention, termination, change of control and other contractual rights existing on the date hereof that have been disclosed in the Company will Disclosure Schedule; (e) acquire (including by merger, consolidation, or acquisition of stock or assets) or make any investment in, outside of the ordinary course of business consistent with past practice, any Equity Interest in any Person or any division thereof or any assets thereof, except any such acquisitions or investments that are consistent with past practice and will cause each are for consideration that is individually not in excess of its Subsidiaries $1,000,000, or in the aggregate, not in excess of $5,000,000 for all such acquisitions by the Company and the Company Subsidiary taken as a whole; (f) 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 the Company Subsidiary) for borrowed money, except for (i) indebtedness owing by the Company Subsidiary to conduct the Company, (ii) indebtedness incurred to refinance any existing indebtedness in an amount not to exceed, and on terms no less favorable in the aggregate than, such existing indebtedness, and (iii) indebtedness for borrowed money incurred with respect to acquisitions permitted pursuant to Section 7.1(e) or with respect to capital expenditures permitted pursuant to Section 7.1(i); (g) grant any Lien in any of its operations material assets to secure any indebtedness for borrowed money, except in connection with indebtedness permitted under Section 7.1(f) or Section 7.1(h); (h) issue any debt securities or assume, endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, other than (i) loans or advances to the Company Subsidiary and (ii) advances of travel and other out-of-pocket expenses to directors, officers and employees in the ordinary course of business consistent with past practices; (i) authorize or make any commitment with respect to capital expenditures that exceeds the Company's capital expenditures budget for fiscal year 2014 by $250,000 individually or $500,000 in the aggregate; (j) enter into any new line of business outside of its existing business segments; (k) adopt or amend any Company Benefit Plan, increase in any manner the compensation or fringe benefits of any director, officer or employee of the Company or the Company Subsidiary, pay, fund or accelerate the vesting of any benefit not provided for by any existing Company Benefit Plan, in each case except (i) as reasonably necessary to comply with applicable Law or to address the requirements of this Agreement or any Contracts the Company or the Company Subsidiary has entered into prior to the date hereof that have been disclosed on the Company Disclosure Schedule if required to be disclosed thereon or (ii) in connection with employees who are not directors or executive officers (as such term is used in Rule 3b-7 of the Exchange Act) in the ordinary course of business consistent with past practice; (l) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than (i) performance of contractual obligations in accordance with their terms, (ii) payment, discharge, settlement or satisfaction in the ordinary course of business consistent with past practice, or (iii) payment, discharge, settlement or satisfaction in accordance with their terms, of claims, liabilities or obligations that have been (x) disclosed in the most recent financial statements (or the notes thereto) of the Company included in the Prior Company SEC Filings or contemplated by documents made available to Parent prior to Measurement Date or (y) incurred since the date of such financial statements in the ordinary course of business consistent with past practice; (m) except as otherwise permitted by this Agreement, including Section 7.1(e) and Section 7.3, adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or the Company Subsidiary (other than the Merger); (n) dispose of, sell, lease, license or otherwise transfer, any of the Company's or the Company Subsidiary's material assets, properties, interests or businesses, other than (i) disposing of, selling, leasing or otherwise transferring obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect licensing owned Company Intellectual Property on a non-exclusive basis in the rights ordinary course of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaserbusiness consistent with past practice; (bo) take enter into, renew, amend or modify in any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take material respect or terminate any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure ScheduleMaterial Contract or otherwise waive, from the date hereof and prior to the Closing Date (the "Blackout Period")release or assign any material rights, issue claims or sell any equity securities or securities exercisable or convertible into equity securities benefits of the Company or any the Company SubsidiarySubsidiary thereunder; provided, other than however, that the foregoing shall not prevent or preclude the Company or the Company Subsidiary from (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options negotiating and/or renewing in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as of the date hereof and issuances of Common Stock any Company Material Contracts which expire upon exercise of such stock options and their terms or (ii) issuances entering into any customer or supplier Contracts in the ordinary course of Common Stock on conversion business consistent with past practice, regardless of whether or not any Series A Preferred Stock or Convertible Debentures outstanding such Contract would constitute a Company Material Contract if it had been entered into as of the date hereof; (p) make any material change in its methods of accounting, except as required by concurrent changes in GAAP or in Regulation S-X of the Exchange Act; (q) make or change any material Tax election, adopt or change any material Tax method of accounting, consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim, audit or assessment, change any annual Tax accounting period, enter into any Tax allocation agreement, Tax sharing agreement, or Tax indemnity agreement, file any amended Tax Return that is material or settle or compromise any material Tax claim, audit or assessment; or (er) acquire knowingly commit or subscribe for shares agree to take any of the foregoing actions or securities any action which would result in any company of the Offer Conditions or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering of the conditions to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does Merger set forth in Article 8 not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000being satisfied.

Conduct of Business by the Company Pending the Closing. During the period from (a) The Company agrees that, between the date hereof of this Agreement and the first to occur of the following: (i) the termination of this Agreement pursuant to Section 9.1 hereof, (ii) the date upon which the directors designated by Parent are elected or appointed to the Closing Date Company Board pursuant to Section 2.4(a) if the directors so elected or appointed constitute a majority of all the directors then on the Company will Board, and (iii) the Effective Time, except as otherwise expressly required by this Agreement, as required by applicable Law or as consented to in writing by Parent, the Company will, and will cause each Company Subsidiary to, (x) conduct its business in the ordinary course consistent with past practice and (y) use its commercially reasonable efforts to keep available the services of the current officers and employees of the Company and each Company Subsidiary to preserve intact its Subsidiaries current business organization 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 an extension thereof, except as set forth in the Company Disclosure Schedule, as otherwise expressly required by this Agreement, as required by applicable Law or as consented to in writing by Parent (which consent shall be in Parent’s sole discretion as to clauses (i), (ii), (iii), (iv), (v), (xiii), (xiv)(A), (xxi), (xxii), and (xxvi) and which consent shall not be unreasonably withheld, delayed or conditioned as to clauses (vi) through (xii), (xiv)(B) through (xiv)(E), (xv) through (xx), (xxiii) through (xxv), and (xxvii) through (xxix)), 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, take any of the 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, transfer, encumber or otherwise dispose, or authorize, propose or agree to the issuance, delivery, sale, pledge, transfer, encumbrance or disposition of, any shares of its capital stock or other Equity Interests, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock or other Equity Interests (other than pursuant to the exercise of Company Options and Company Restricted Stock Units, 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; (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, 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, or acquisition of Equity Interests or assets) any interest in any Person or any division thereof or any assets thereof other than capital expenditures in accordance with Section 7.1(a)(xii); (vi) make any loan, advance or capital contribution to, or investment in, any Person or any division thereof, except any such loans, advances, contributions or investments that are in the ordinary course of business and consistent with past practice and are for consideration not in excess of $25,000 individually, or $100,000 for all such transactions by the Company and the Company Subsidiaries in the aggregate; (vii) redeem, repurchase, prepay, defease, cancel, incur or otherwise acquire, or modify the terms of, any indebtedness for borrowed money or issue any debt securities or draw any amounts under any credit facility or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person for borrowed money; provided that the Company may guarantee its obligations to perform services under any Contract for an amount not to exceed 10% of the total aggregate amount to be paid to the Company under such Contract; (viii) grant or incur any Lien on any of its assets, other than Liens granted in connection with any indebtedness permitted under Section 7.1(a)(vii); (ix) (A) enter into, terminate or materially amend or modify (other than extensions at the end of a term in the ordinary course of business) any Company Material Contract or Contract that, if in effect on the date hereof, would have been a Company Material Contract, (B) waive any term of or any material default under, or release, settle or compromise any material claim against the Company or any Company Subsidiary or liability or obligation owing to the 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; (x) sell, transfer, lease, sublease, license, assign, abandon, allow to expire or lapse, or otherwise dispose of or impair or restrict the use of (including, by merger, consolidation, or sale of Equity Interests or assets) any entity, business, assets, rights or properties of the Company or any Company Subsidiary having a current value in excess of $100,000 in the aggregate or any Company Intellectual Property (provided that with respect to expiration, other than patents expiring at the end of their statutory terms (and not as a result of any act or omission by the Company or any Company Subsidiary, including a failure by the Company or any Company Subsidiary to pay any required registration or maintenance fees)). (xi) disclose any confidential information (including trade secrets) used in or necessary for the conduct of the business of the Company or any of the Company Subsidiaries, other than (A) as may be required by an applicable Law or Order or (B) (except with respect to any Source Code for any of the Products or any services of the Company) pursuant to Contracts entered into in the ordinary course of business consistent with past practice with reasonable protections of, and preserving all rights of the Company and the Company Subsidiaries, in such confidential information; (xii) authorize, or make any commitment with respect to, any single capital expenditure in excess of $25,000 or capital expenditures for the Company and the Company Subsidiaries in excess of $100,000 in the aggregate, except for capital expenditures that are contemplated by the Company’s existing plan for annual capital expenditures for 2015 previously made available to Parent; (xiii) enter into any new line of business outside of its operations existing business segments; (A) except to the extent required by applicable Law or by written agreements existing on the date of this Agreement that have been made available to Parent, grant or announce any stock option, equity or other incentive awards or increase in the salaries, bonuses or other compensation or benefits payable or provided by the Company or any Company Subsidiary to any of the employees, officers, directors, managers, equityholders or other service providers of or to the Company or any Company Subsidiary, (B) hire any new employees, unless such hiring is in the ordinary course of business consistent with past practice and is with respect to employees having an annual base salary and incentive compensation opportunity not to exceed $100,000 in the aggregate, (iiC) except to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly extent required by applicable Law or indirectly, and it will cause each of its Subsidiaries not to, between by written agreements existing on the date of this Agreement and the Closing Datethat have been made available to Parent, except as specifically contemplated 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 other provision Contract in effect on the date of this AgreementAgreement to any employee, unless officer, director, manager, equityholder or other service provider of or to the Purchaser shall otherwise consent in writing: (a) take Company or any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of AmendmentCompany Subsidiaries, assuming for purposes of this clause (ii) that the Closing had occurredwhether past or present, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) or take any action to cause the Company's representations and warranties set forth in Article III accelerate vesting of any right to be untrue; compensation or benefits or to fund any compensation or benefits, (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (dD) except as set forth in Section 5.01(d) of to the Disclosure Schedule, from extent required by applicable Law or by written agreements existing on the date hereof and prior of this Agreement that have been made available to the Closing Date (the "Blackout Period")Parent, issue enter into or sell amend any equity securities or securities exercisable or convertible into equity securities Contracts of the Company employment or any Company Subsidiaryconsulting, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereofbonus, issuances of stock options severance, retention, retirement or similar Contract, except for agreements for newly hired employees in the ordinary course of business consistent with past practice pursuant with an annual base salary and incentive compensation opportunity not to stock option plans exceed $100,000 in the aggregate, or (E) enter into or adopt any new, or increase benefits under or renew, amend or terminate any existing Company Plan or any collective bargaining agreement; (xv) communicate with employees of the Company or any Company Subsidiary regarding the compensation, benefits or other treatment that they will receive from the Surviving Corporation after the consummation thereof, 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 employee benefit schemes existing as the opportunity to review and comment upon any such communications); (xvi) pay, discharge, settle or satisfy any material claims or obligations (absolute, accrued, contingent or otherwise) in an amount in excess of $25,000 individually or $100,000 in the aggregate, other than (A) performance of contractual obligations in accordance with their terms, or (B) payment, discharge, settlement or satisfaction in accordance with their terms, of claims, liabilities or obligations that have been disclosed in the most recent financial statements of the Company included in the Company SEC Filings filed prior to the date hereof and issuances of Common Stock upon exercise to the extent of such stock options and disclosure; (iixvii) issuances except as may be required by GAAP or as a result of Common Stock a change in Law, make any change in accounting principles, policies, practices, procedures or methods; (xviii) adopt or change any method or period of Tax accounting, make or change any Tax election, file any amended Tax Return, settle or compromise any Tax liability, claim or assessment, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes, enter into any closing agreement, surrender any right to claim a Tax refund, or take any other similar action; (xix) 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, or (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 conversion the current or future business or operations of the Company or any of the Company Subsidiaries or its or their use or the validity or enforceability of, or any of its or their right, title or interest with respect to, any Company Intellectual Property, or (C) that is brought by any current, former or purported holder of any Series A Preferred Stock Equity Interests or Convertible Debentures outstanding as debt securities of the date hereofCompany or any Company Subsidiary relating to the transactions contemplated by this Agreement; (xx) 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; (xxi) 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); (xxii) adopt or implement a rights plan or similar arrangement; (xxiii) take any action which would result in any of the conditions to the Offer set forth on Annex A hereto or any of the conditions to the Merger set forth in Article VIII not being satisfied or that would reasonably be expected to prevent, delay or impair the ability of the Company to consummate the Offer, the Merger or any of the other transactions contemplated hereby; (xxiv) amend or modify the letter of engagement of the Company Financial Advisor or engage other advisors or consultants in connection with the transactions contemplated hereby or other Acquisition Proposals; (xxv) implement any plant closing or layoff of employees that could implicate the United States Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar or related Law; (xxvi) incur or enter into any Related Party Financing; (xxvii) amend, modify, extend, renew or terminate any Lease, or enter into any new lease, sublease, license or other agreement for the use or occupancy of any real property; (A) recognize any labor organization for purposes of collective bargaining; (B) enter into any collective bargaining with any labor organization representing any of the Company’s employees; (C) enter into any collective bargaining agreement; (D) reclassify any current employee or employees into a non-employee status including that as a consultant or independent contractor; or (E) reclassify any current employee from nonexempt to exempt status within the meaning of any Law with respect to wages and hours of employment; or (exxix) acquire knowingly commit, authorize or subscribe for shares agree to take any of the foregoing actions or securities enter into any letter of intent (binding or non-binding) or similar agreement or arrangement with respect to 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 or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering Company Subsidiary prior to the extent that Acceptance Time. Prior to the aggregate price Acceptance Time, each of all such acquisitions or subscriptions by the Company Parent and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sellexercise, leaseconsistent with the terms and conditions of this Agreement, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000complete control and supervision over its and its Subsidiaries’ respective businesses and operations.

Conduct of Business by the Company Pending the Closing. During the period from Except as otherwise expressly described or authorized by this Agreement, between the date hereof to of this Agreement and the Closing Date (the “Pre-Closing Period”), unless Parent and Merger Sub shall otherwise agree in writing, the Company will and will cause each of its Subsidiaries hereby agrees to: (iw) to conduct its operations the Business only in the ordinary course of business consistent with past practice practice; (x) pay and perform any of the Company’s debts, obligations and Liabilities relating to the Business and the Assets and Properties of the Company as and when due and the Contracts and other commitments relating to the Business and the Assets and Properties of the Company in accordance with the terms and provisions thereof; (y) comply with all Laws and Orders that may be applicable to any of the Business or the Assets and Properties of the Company; and (iiz) use its commercially reasonable best efforts to preserve intact its current business organizations, keep available the service services of its the Employees and to preserve current officers and employees and preserve its relationships with corporate partners, customers, suppliers, distributors, lessors, creditors, vendors, contractors manufacturers and others having other persons doing business dealings with it with the intention that its goodwill Company in order to preserve substantially intact the Business. By way of amplification and ongoing business shall be unimpaired at not limitation, the Closing Date. The Company agrees that it shall may not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by directly or indirectly, take, agree to take or allow, cause or permit any other provision Person to take, agree, agree to take or allow, cause or permit any of this Agreement, unless the Purchaser shall otherwise following actions without the prior written consent in writingof Parent and Merger Sub: (a) take acquire any action which would (i) be reasonably likely to result properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the properties or assets of the Company having a value individually or in the circumstances described aggregate in clauses (i) through (xx) excess of Section 3.07(a) $100,000 or (ii) affect which the rights of Company will be responsible for fulfilling after the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the PurchaserClosing; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities shares of the capital stock or securities exercisable or convertible into equity other securities of the Company or any of its Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares the capital stock or the securities of the Company Subsidiaryor any of its Subsidiaries; (c) engage with any Person in any merger, consolidation or other business combination transaction; (d) affect any recapitalization, reclassification or the like change in the capitalization of the Company or its Subsidiaries; (e) amend the certificate of incorporation, articles of organization, operating agreement or bylaws or comparable organizational documents of the Company or any of its Subsidiaries; (f) affect the distribution of any dividends or distributions, other than cash dividends and distributions; (ig) issuances knowingly violate, breach or default under in any material respect, or take or fail to take any action that (with or without notice or lapse of Common Stock upon time or both) would constitute a material violation or breach of, or default under, any term or provision of any material Business Contract, Business License, the exercise of stock options outstanding as of leases for the date hereofLeased Personal Property and Leased Real Property; or terminate, issuances of stock options cancel or request any material change in, or agree to any material change in, any material Business Contract, Business License, the leases for the Leased Personal Property and Leased Real Property; or enter into or amend any Contract, that would constitute a material Business Contract, Business License, leases for the Leased Personal Property and Leased Real Property and that, if fully performed, would not be permitted under this Section 6.01; (h) make or authorize any capital expenditure with respect to the Business, other than capital expenditures in the ordinary course of business consistent with past practice pursuant that have been budgeted for the fiscal period in question; notwithstanding the foregoing, any capital expenditure in excess of $100,000 must be approved by an authorized representative of Parent in writing; (i) (i) increase or commit to stock option plans and employee benefit schemes existing as increase the annual compensation payable or to become payable to any salaried Employees in excess of the date hereof and issuances preexisting obligations of Common Stock upon exercise the Company set forth in Section 6.01(i)(i) of such stock options and the Disclosure Schedule; (ii) issuances 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 Common Stock on conversion the Company that would be triggered by the transactions contemplated hereby or by the Ancillary Agreements with, any Employee who is not currently entitled to such benefits from the transactions contemplated hereby; (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 Series A Preferred Stock Employee except to the extent required by applicable Law or Convertible Debentures outstanding the terms of a collective bargaining agreement in effect as of the date hereof, or; (iv) make any representation or promise, oral or written, to any Employee concerning any Benefit Plan, except for statements as to the rights or accrued benefits of any Employee under the terms of any Benefit Plan in effect as of the date hereof; (j) incur, cancel, pay, prepay, discharge or satisfy any claim or Liability other than in the ordinary course of business or as provided in this Agreement; (k) engage in any transaction with respect to any of the Assets and Properties or the Business with any officer, director, Affiliate or Associate of the Company, or any Associate of any such officer, director or Affiliate, either outside the ordinary course of business consistent with past practice or other than on an arm’s-length basis; (l) make any change with respect to the Company’s accounting policies, principles, methods or procedures, including revenue recognition policies, other than as required by GAAP; (m) make or rescind any material Tax election or settle or compromise any material Tax liability relating to the Business or any of the Assets and Properties of the Company; (n) permit any insurance policy naming the Company as a beneficiary or a loss payee and relating to the Business or any of the Assets or Properties of the Company to be cancelled, terminated or not renewed, except in the ordinary course of business; (o) maintain the Books and Records of the Company relating either to the Business or to any of the Assets and Properties of the Company in a manner not consistent with past business practices; (p) knowingly take any action in connection with the Business which would materially adversely affect the goodwill of the Company with respect to suppliers, manufacturers, customers, licensees and others with whom it has business relations in any material respect; or (eq) acquire authorize or subscribe for shares enter into any Contract or securities otherwise make any commitment to do any of the foregoing or to take any action which would make any of the representations or warranties in Article IV untrue or incorrect in any company material respect or acquire any business prevent the Company from performing or invest cause the Company not to perform its covenants and agreements herein or result in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering of the conditions to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does Closing set forth herein not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000being satisfied.

Conduct of Business by the Company Pending the Closing. During (a) The Company agrees that, from and after the period from 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 7.1 (the “Pre-Closing Period”), except (i) as set forth in Section 4.1 of the Company Disclosure Schedule, (ii) as specifically permitted or required by this Agreement, (iii) as required by Law or (iv) as consented to by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall, and shall use its commercially reasonable efforts to 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 substantially intact its and their present business organizations, to keep available the services of its and their current executive officers and key 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. (b) Without limiting the generality of Section 4.1(a), the Company agrees that during the Pre-Closing Period, except (i) as set forth in Section 4.1 of the Company Disclosure Schedule, (ii) to the extent specifically permitted or required by this Agreement (including pursuant to Section 1.7, Section 4.1(b)(x)(v) and Section 4.1(b)(x)(vii) herein), or (iii) to the extent required by Law, the Company shall not, and shall not permit any Company Subsidiary to, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned): (i) amend or otherwise change the Company Governing Documents, or otherwise alter its corporate structure through merger, liquidation, reorganization or otherwise; (ii) 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 any phantom interest) (except for Shares issuable pursuant to Company Equity Awards outstanding on the date hereof and disclosed on Section 2.2(a) of the Company Disclosure Schedule or granted after the date hereof to the Closing Date extent permitted under Section 4.1(b)(x)(vii), and Shares issuable pursuant to rights outstanding under the ESPP and disclosed on Section 2.2(a) of the Company will and will cause each Disclosure Schedule); (iii) amend the terms of, redeem, repurchase or otherwise acquire, directly or indirectly, or permit any Company Subsidiary to amend the terms of, redeem, repurchase or otherwise acquire, directly or indirectly, any of its securities or any securities of its Company Subsidiaries (other than the retention or acquisition of Shares tendered by current or former employees or directors of the Company in order to pay Taxes or the exercise price due in connection with the exercise or vesting of any Company Equity Award or in connection with the ESPP); (iv) 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 (except (i) pursuant to conduct existing Contracts, including the Existing Credit Facility, or (ii) 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 $25,000,000 in the aggregate); (v) accelerate, amend or change the period (or permit any acceleration, amendment or change) of exercisability or vesting of any Company Equity Awards or authorize material (individually or in the aggregate) cash payments in exchange for Company Equity Awards, except to the extent (A) required under any Company Equity Awards or Contracts existing as of the date of this Agreement or subsequently issued as permitted hereunder or (B) in connection with an employee’s termination in accordance with this Agreement, but only to the extent permitted in, and subject to, the terms and conditions specified in Section 4.1(b)(x) of the Company Disclosure Schedule; (vi) (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 operations capital stock, except that a wholly owned Company Subsidiary may declare and pay a dividend to its parent or (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, or propose to do any of the foregoing; (vii) sell, assign, lease, license, sublicense, transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, sale or otherwise) any material property or assets of the Company or any Company Subsidiary (other than (w) the disposition of used or excess equipment and the purchase of supplies and equipment, (x) the sale, assignment, transfer, license, sublicense, lapse or expiration of any non-exclusive licenses with respect to any Intellectual Property, in either case in the ordinary course of business consistent with past practice, (y) sales of inventory in the ordinary course of business and in a manner consistent with past practice, and (z) dispositions of obsolete or worthless assets), or enter into any material commitment or transaction outside the ordinary course of business; (i) acquire (by merger, consolidation, or acquisition of stock or assets) any Person, corporation, partnership or other business organization or business or division thereof or property or assets for a fair market value in excess of $25,000,000 in the aggregate for all such transactions, (ii) enter into, terminate or amend any Company Material Contract or grant any release or relinquishment of any material rights under any Company Material Contract, except that the Company may enter into, amend and terminate customer contracts in the ordinary course of business consistent with past practice, provided that any such new customer contracts are terminable at the Company’s option on no more than twelve (12) months’ notice, (iii) authorize any capital expenditures or purchase of fixed assets except for capital expenditures or purchases in aggregate less than $2,000,000 in excess of the capital expenditure budgets for any of the fiscal years ending December 31, 2017, December 31, 2018 and December 31, 2019 set forth on Section 4.1(b) of the Company Disclosure Schedule (the “Capital Expenditure Budget”), or (iv) enter into or amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 4.1(b); (ix) forgive any loans to its employees, officers, directors or affiliates, or forgive any material loans to any other Person; (x) other than as required by Company Benefit Plans existing on the date hereof, (i) materially increase the compensation or benefits payable or to become payable to current directors, officers, employees or consultants (that are natural persons or personal services entities) of the Company or any Company Subsidiary, (ii) enter into any employment, consulting, change of control, severance or retention agreement or arrangement with any director, officer, employee or consultant (except for employment or severance agreements entered into with current or future employees of the Company or its Subsidiaries who have, or will have, an annual base salary below $300,000 (“Non-Management Employees”), but only to the extent permitted in, and subject to, the terms and conditions specified in Section 4.1(b)(x) of the Company Disclosure Schedule), (iii) hire or terminate employment (other than for cause) of any employees other than Non-Management Employees (other than the hiring of employees or officers to replace any employees or officers who leave the Company or any of the Company Subsidiaries after the date of this Agreement or in fulfillment of job requisitions open on the date of this Agreement, but only to the extent permitted in, and subject to, the terms and conditions specified in Section 4.1(b)(x) of the Company Disclosure Schedule), (iv) loan or advance any money or other property to any employee, director or consultant, other than routine advances for business expenses, (v) grant any cash bonus or any cash incentive compensation, except that the Company may (A) grant equity-based awards settled in cash as set forth in clause (vii) below (B) pay cash bonuses for 2017 assuming the achievement of performance metrics at “target,” as established by the Company Board (or a committee thereof) on or before the date of this Agreement, regardless of actual performance, and (C) pay cash bonuses for 2018 the amount of which shall not exceed, in the aggregate, 110% of 2017 bonuses, (vi) establish, adopt, enter into, materially 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 the retention plan described in Section 4.1(b)(x) of the Company Disclosure Schedule, routine amendments, renewals to health and welfare plans, or as would not result in a material increase in benefits or in cost to the Company and its Subsidiaries or (vii) grant any equity or equity-based compensation, except that the Company may grant equity-based awards (including equity-based awards settled in cash) to the extent permitted in, and subject to, the terms and conditions specified in Section 4.1(b)(x) of the Company Disclosure Schedule; provided, however, that notwithstanding the foregoing, any action that is not prohibited by the terms of this Section 4.1(b)(x) shall, unless otherwise expressly provided in this Section 4.1(b)(x), be permissible only if undertaken in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizationsthe terms provided under the Company’s or Subsidiary’s employment and compensation plans, keep available the service of its current officers policies, agreements and employees and preserve its relationships with customersarrangements, suppliersas applicable, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between existing on the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing:hereof. (axi) take any action which would action, other than as required by applicable Law or GAAP, to change materially any accounting policies or procedures (iwith Parent to be provided prompt written notice of change required by applicable Law or GAAP); provided that the Company shall be permitted to select any alternative policies or procedures permitted by applicable Law or GAAP in connection with such changes; (xii) 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 in respect of a material Tax item, 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 statute of limitations with respect to a material amount of Taxes; (xiii) enter into any material partnership arrangements, joint development agreements or strategic alliances; (xiv) except with respect to matters involving any ordinary course commercial contracts with Parent, initiate any litigation, action, suit, proceeding, claim or arbitration or settle or agree to settle any litigation, action, suit, proceeding, claim or arbitration, in each case, with an amount in controversy (considering the value of all requested relief, including injunctive relief, declaratory relief, damages and penalties) of greater than $2,000,000 (provided that any litigation, action, suit, proceeding, claim or arbitration arising in connection with this Agreement shall only be reasonably likely settled in accordance with Section 5.9); (xv) fail to result use its commercially reasonable efforts to maintain in full force and effect the circumstances existing insurance policies or to replace such insurance policies with comparable insurance policies covering the Company, the Company Subsidiaries and their respective properties, assets and businesses or substantially equivalent policies; (xvi) adopt or implement any stockholder rights plan; or (xvii) take, or agree in writing or otherwise to take, any of the actions described in clauses (i) through (xxxvi) of this Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"4.1(b), issue or sell enter into any equity securities agreement or securities exercisable arrangement that (A) materially limits or convertible into equity securities of otherwise restricts the Company or any Company Subsidiarysuccessor thereto, other than (i) issuances of Common Stock upon or that would, after the exercise of stock options outstanding as of Effective Time, materially limit or restrict the date hereof, issuances of stock options in the ordinary course of business consistent with past practice pursuant to stock option plans Surviving Corporation and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise of such stock options and (ii) issuances of Common Stock on conversion of its affiliates or any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venturesuccessor thereto, in each case case, from engaging or competing in any line of business in which it is engaged or actively plans to engage or in any material geographic area or (B) would, after the Effective Time, limit or otherwise restrict Parent or its affiliates (other than acquisitions the Surviving Corporation and its Subsidiaries) from engaging or subscriptions for shares competing in any line of business or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000geographic area.

Conduct of Business by the Company Pending the Closing. During Seller and the Company covenant and agree that, during the period from the date hereof of this Agreement to and including the Closing Date, except as set forth in SECTION 4.01 of the Disclosure Letter or as specifically contemplated by any other provision of this Agreement or consented to by Purchaser in writing, the Company shall, and Seller shall cause the Company to: (a) carry on its business in the usual, regular and ordinary course in all material respects, in substantially the same manner as heretofore conducted, and shall use commercially reasonable efforts to preserve intact its present lines of business, maintain its rights and franchises and preserve its relationships with employees, customers, suppliers and others having business dealings with it to the Closing Date end that its ongoing business shall not be impaired in any material respect at the Closing; provided, however, that no action by Seller or the Company will and will cause each specifically permitted by any other provision of its Subsidiaries this Agreement shall be deemed a breach of this SECTION 4.01(a); (b) maintain (i) all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted, in accordance with the Company’s past practices and (ii) insurance upon all of the properties and assets of the Company insured as of the date of this Agreement in such amounts and of such kinds comparable to conduct its operations that in effect on the date of this Agreement; (i) maintain the books, accounts and records of the Company in the ordinary course of business, (ii) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts other than in accordance with the Company’s past practices and (iii) comply with all material contractual and other obligations applicable to the operation of the Company; (d) comply in all material respects with all applicable Laws and Company Permits; (e) not amend or otherwise change the Company’s articles of incorporation or by-laws; (f) not transfer, issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of capital stock of the Company 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 (including any phantom interest), of the Company, (ii) any Aircraft or (iii) any other asset of the Company except (A) in the ordinary course of business and in a manner consistent with past practice and (B) for consideration less than $100,000; (g) not reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of the Company’s capital stock; (h) not (i) acquire or dispose of (including, without limitation, by merger, consolidation, acquisition or disposition of stock or assets, or by liquidation or dissolution) any interest in any corporation, partnership, other business organization or any division thereof or any assets, other than the acquisition or disposition of assets (other than the Aircraft and the Company Properties) in the ordinary course of business consistent with past practice and practice, provided that the Company shall not acquire Inventory in excess of $2,000,000 in the aggregate; (ii) other than pursuant to preserve intact its current business organizationsthe intercompany relationships described in SECTION 1.08 of the Disclosure Letter, keep available 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 service obligations of its current officers any Person, or make any loans or advances; (iii) enter into, amend in any material respect or terminate any contract or agreement material to the business, results of operations or financial condition of the Company taken as a whole other than in the ordinary course of business, consistent with past practice; (iv) authorize any capital expenditure, other than capital expenditures for the Company in an aggregate amount not exceeding the sum of (A) the amounts (by category) provided in the capital expenditure budget for the fiscal year ending December 31, 2004 previously provided to Purchaser and employees (B) $3,000,000; (v) enter into any commitment for capital expenditures of the Company in excess of $500,000 for any individual commitment and preserve its relationships with customers$2,000,000 for all commitments in the aggregate; (vi) enter into any Contract that is not cancelable by the Company upon thirty (30) days notice without penalty; or (vii) enter into or amend any contract, suppliersagreement, distributorscommitment or arrangement that, lessorsif fully performed, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall would not be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of permitted under this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing:SECTION 4.01(h); (a) take any action which would (i) subject to any Lien (other than Permitted Liens) or otherwise encumber or, except for Permitted Liens, permit, allow or suffer to be reasonably likely to result in encumbered, any of the circumstances described in clauses properties or assets (whether tangible or intangible) of the Company; (j) not (i) through (xx) increase the compensation payable or to become payable to its employees, except for increases in accordance with past practices in salaries or wages of Section 3.07(a) or employees of the Company, (ii) affect the rights grant any severance or termination pay to any employee of the Purchaser under the Certificate of AmendmentCompany, assuming for purposes of this clause (iiiii) that the Closing had occurredenter into or amend any employment or severance agreement with any director, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights officer or other employee of the PurchaserCompany or (iv) establish, adopt, enter into, extend, amend or terminate any collective bargaining, bonus, profit, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (dk) except as set forth in Section 5.01(dSECTION 4.01(k) of the Disclosure ScheduleLetter, not make any tax election or settle or compromise any income tax liability; (l) not take any action that would prevent or impede any party to this Agreement from obtaining any consent or approval the date hereof and prior receipt of which is a condition to the Closing Date consummation of the transactions contemplated hereby; (the "Blackout Period"), issue m) not enter into any agreement or sell any equity securities arrangement that would limit or securities exercisable or convertible into equity securities of otherwise restrict the Company or any Company Subsidiarysuccessor thereto or, after the Closing, Purchaser or any subsidiary thereof or any successor thereto, from engaging or competing in any line of business or in any geographic area; (n) not pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereofpayment, issuances of stock options discharge or satisfaction, in the ordinary course of business and consistent with past practice pursuant to stock option plans and employee benefit schemes existing as practice, of liabilities reflected or reserved against in the balance sheet of the date hereof Company (including the notes thereto) included in the Company Financial Statements or subsequently incurred in the ordinary course of business and issuances consistent with past practice; (o) fly, operate, inspect, and maintain (including but not limited to any necessary preventive maintenance) all Aircraft in accordance with all applicable FAA regulations and requirements as well as all applicable manufacturer guidelines, aircraft flight manuals, insurance requirements and Company Permits; (p) not defer, keep open or carry forward any maintenance items or discrepancies if doing so would result in the grounding of Common Stock upon exercise an Aircraft due to airworthiness or safety of flight issues, nor request any extension for any maintenance, repair or overhaul past the applicable limits as set forth in the Aircraft’s manual(s), other than by methods already approved via the Company’s FAA Operations Specifications; (q) comply in full, or via authorized alternative method of compliance, with all manufacturer service bulletins, alert service bulletins and FAA airworthiness directives within the time periods for compliance specified in such service bulletins and airworthiness directives; (r) maintain, inspect, fly, operate, and repair by duly qualified and certificated pilots, crew members, flight attendants and mechanics all Aircraft in accordance with all applicable Company Permits and FAA regulations and requirements as well as any insurance requirements applicable to the Aircraft; (s) not introduce any material change with respect to the operation of the Company, including any material change in the types, nature, composition or quality of its products or services, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distribution of such stock options and products; (t) not make a change in its accounting or Tax reporting principles, methods or policies; (u) not terminate, amend, restate, supplement or waive any material rights under any Material Contract, Real Property Lease, Personal Property Lease, Intellectual Property or Company Permits; and (v) not take any action that would render, or which reasonably may be expected to render, (i) any of the representations or warranties of Seller set forth in this Agreement untrue at the Closing or (ii) issuances of Common Stock on conversion of except as otherwise permitted by SECTION 6.05, any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereof; or (e) acquire conditions set forth in ARTICLE V not being satisfied. Seller further covenants and aggress that Seller shall not authorize or subscribe for shares enter into, or securities in any company or acquire any business or invest in any joint venturepermit the Company to enter into, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering an agreement to the extent that the aggregate price of all such acquisitions or subscriptions do anything prohibited by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offeringforegoing SECTION 4.01(b) through SECTION 4.01(v); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000.

Conduct of Business by the Company Pending the Closing. During the period from (a) The Company agrees that, between the date hereof of this Agreement and the earlier to occur of (A) the Closing Date termination of this Agreement pursuant to Section 9.1 or Section 9.2 hereof, (B) such time as designees of Parent first constitute a majority of the Board, or (C) the Effective Time, except as expressly set forth in Section 7.1(a) of the Company will Disclosure Schedule, as otherwise permitted or contemplated by this Agreement, as required by applicable Law or by written agreements existing on the date of this Agreement that have been disclosed on the Company Disclosure Schedules, 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 of its Subsidiaries Company Subsidiary to, (ix) to conduct its operations business in the ordinary course of business consistent with past practice and (iiy) use its commercially reasonable efforts to preserve intact its keep available, in all material respects, the services of the executive officers of the Company and each Company Subsidiary and to preserve, in all material respects, the current business organizations, keep available relationships of the service Company and each Company Subsidiary with each of its current officers and employees and preserve its relationships with the material customers, suppliers, distributorslandlords and other Persons with whom the Company or any Company Subsidiary has material business relations. Without limiting the foregoing, lessorsand as an extension thereof, creditorsexcept as set forth in the Company Disclosure Schedule, vendorsas otherwise permitted or contemplated by this Agreement, contractors and others having business dealings with it with as required by applicable Law or by written agreements existing on the intention date of this Agreement that its goodwill and ongoing business have been disclosed on the Company Disclosure Schedules, or as consented to in writing by Parent (which consent shall not be unimpaired at unreasonably withheld, conditioned or delayed), the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries shall not permit any Company Subsidiary to, between the date of this Agreement and the Closing DateEffective Time, except as specifically contemplated by any other provision of this Agreementdirectly or indirectly, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(afollowing actions: (i) and (b) aboveamend or otherwise change the Company Certificate of Incorporation, the Company By-laws or equivalent organizational documents of the Company Subsidiaries; (dii) except as set forth in Section 5.01(d) issue, sell, pledge, transfer, encumber or otherwise dispose, or authorize, propose or agree to the issuance, sale, pledge, transfer, encumbrance or disposition of, any shares of its capital stock or other Equity Interests, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock or other Equity Interests (other than pursuant to the Disclosure Schedule, from exercise of Company Options or Company Warrants existing on the date hereof and prior 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 Closing Date voting of its Equity Interests; (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 "Blackout Period")exercise or settlement of Company Options, 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, or acquisition of Equity Interests or assets) any 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 $200,000 individually, or $400,000 for all such transactions by the Company and the Company Subsidiaries in the aggregate; (vi) redeem, repurchase, prepay, defease, cancel, incur or otherwise acquire, or modify the terms of, any indebtedness for borrowed money or issue or sell any equity debt securities or securities exercisable assume, guarantee or convertible 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 permitted under Section 7.1(a)(vi); (viii) other than in the ordinary course of business with respect to Material Contracts described in Section 5.13(a)(v) requiring annual payments to or from the Company of less than $1,500,000, (A) enter into, terminate (other than by expiration in accordance with its terms) or materially amend or modify any Company Material Contract or Contract that, if in effect on the date hereof, would have been a Company Material Contract, (B) waive any term of or any material default under, or release, settle or compromise any material claim against the Company or any Company Subsidiary or liability or obligation owing to the Company or any Company Subsidiary under, any Company Material Contract, or (C) enter into equity securities any material 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) sell, transfer, lease, sublease, license, assign, abandon, or otherwise dispose of or impair or restrict the use of (including, by merger, consolidation, or sale of Equity Interests 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 or any material Intellectual Property owned by the Company or any Company Subsidiary, other than in the ordinary course of business; (ix) issuances authorize, or make any commitment with respect to, any single capital expenditure in excess of Common Stock upon $200,000 or capital expenditures for the exercise Company and the Company Subsidiaries in excess of stock options outstanding as $400,000 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) 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 transactions contemplated hereby or from the Surviving Corporation after the consummation thereof, unless any such communications are consistent with prior directives or documentation provided to Parent by the Company (in which case, the Company shall provide Parent with advance opportunity to review and comment upon any such communications); (xiii) except in the ordinary course of business, (A) grant or announce any stock option, equity or incentive awards or materially increase the salaries, bonuses or other compensation and benefits payable by the Company or any Company Subsidiary to any of the employees, officers, directors or other service providers of the Company or any Company Subsidiary, (B) hire any new employees, unless such hiring is with respect to employees having an annual base salary not to exceed $150,000, (C) pay or agree to pay any pension, retirement allowance, termination or severance pay, bonus or other employee benefit not provided for by any existing Company Plan or other Contract in effect on the date hereofof this Agreement to any employee, issuances officer, director or other service provider of stock options or to the Company or any of the Company Subsidiaries, whether past or present, or take any action to accelerate vesting of any right to compensation or benefits, other than commission payments to employees who are non-executive officers, (D) enter into or materially amend any Contracts of employment or any consulting, bonus, severance, retention, retirement or similar Contract, except for agreements for newly hired employees with an annual base salary not to exceed $150,000, or (E) 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; (xiv) pay, discharge, settle or satisfy any material claims or obligations (absolute, accrued, contingent or otherwise) in an amount in excess of $200,000 individually or $400,000 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 consistent with past practice pursuant practice, or (C) payment, discharge, settlement or satisfaction in accordance with their terms, of claims, liabilities or obligations that have been (1) disclosed in the Company SEC Filings filed prior to stock option plans and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise to the extent of such stock options and disclosure or (ii2) issuances incurred in the ordinary course of Common Stock business consistent with past practice; (xv) 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; (xvi) adopt or change any method or period of Tax accounting, make or change any Tax election, file any amended Tax Return, settle or compromise any Tax liability, claim or assessment, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes, enter into any closing agreement, surrender any right to claim a Tax refund or take any other similar action; (xvii) 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 $200,000 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 conversion the business or operations of the Company or any of the Company Subsidiaries or their use of any Series A Preferred Stock material Owned Intellectual Property, or Convertible Debentures outstanding as (C) that is brought by any current, former or purported holder of any Equity Interests or debt securities of the date hereofCompany or any Company Subsidiary relating to the transactions contemplated by this Agreement; (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) adopt or implement a rights plan or similar arrangement; (xxi) amend or modify the letter of engagement of the Company Financial Advisor or engage other advisers or consultants in connection with the transactions contemplated hereby or other Acquisition Proposals, unless the Company Board determines such actions are necessary to comply with its fiduciary obligations; (xxii) implement any plant closing or layoff of employees that could reasonably be expected to implicate the United States Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar or related Law; or (exxiii) acquire knowingly commit, authorize or subscribe for shares agree to take any of the foregoing actions or securities enter into any letter of intent (binding or non-binding) or similar agreement or arrangement with respect to 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 or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering Company Subsidiary prior to the extent that Acceptance Time. Prior to the aggregate price Acceptance Time, each of all such acquisitions or subscriptions by the Company Parent and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sellexercise, leaseconsistent with the terms and conditions of this Agreement, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000complete control and supervision over its and its Subsidiaries’ respective businesses and operations.

Conduct of Business by the Company Pending the Closing. During The Company agrees that, between the period from date of this Agreement and the Effective Time, except as set forth in Section 7.1 of the Company Disclosure Schedule, as otherwise expressly permitted or required 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 with respect to the matters in subparagraph (i), (l), (n), (o) or (q) below), the Company shall, and shall cause the Company Subsidiary to, in all material respects (it being understood that in no event shall the Company’s participation in the negotiation (including activities related to due diligence), execution, delivery, pendency, public announcement (in accordance with this Agreement) of, or the Company’s performance of any of this Agreement or the performance of the transactions contemplated herein or the consequences thereof on the respective businesses of the Company and the Company Subsidiary, be considered a breach of any of the provisions of this Section 7.1), (i) conduct its business in the ordinary course consistent with past practice and (ii) use commercially reasonable efforts to preserve the current relationships of the Company and the Company Subsidiary with each of the customers, suppliers and other Persons with whom the Company or the Company Subsidiary has significant business relations as is reasonably necessary to preserve substantially intact its business organization. Without limiting the foregoing, and as an extension thereof, except as set forth in the Company Disclosure Schedule, as otherwise expressly permitted or required 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 with respect to the matters in subparagraph (i), (l), (n), (o) or (q) below), the Company shall not, and shall not permit the Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following: (a) amend or otherwise change the Company Certificate, the Company By-laws or equivalent organizational documents of the Company Subsidiary; (b) except as permitted by Section 7.1(k) below, issue, deliver, sell, pledge or encumber, or authorize, propose or agree to the issuance, delivery, sale, pledge or encumbrance of, any shares of its capital stock, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock (other than pursuant to the exercise of Company Options, RSUs, warrants, conversion rights and other contractual rights existing on the date hereof that have been disclosed in the Company Disclosure Schedule); (c) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by the Company Subsidiary to the Closing Date Company), or enter into any agreement with respect to the voting of its capital stock; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other Equity Interests, except pursuant to the exercise or settlement of Company Options, RSUs, warrants, conversion rights, employee severance, retention, termination, change of control and other contractual rights existing on the date hereof that have been disclosed in the Company will Disclosure Schedule; (e) acquire (including by merger, consolidation, or acquisition of stock or assets) or make any investment in, outside of the ordinary course of business consistent with past practice, any Equity Interest in any Person or any division thereof or any assets thereof, except any such acquisitions or investments that are consistent with past practice and will cause each are for consideration that is individually not in excess of its Subsidiaries $1,000,000, or in the aggregate, not in excess of $5,000,000 for all such acquisitions by the Company and the Company Subsidiary taken as a whole; (f) 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 the Company Subsidiary) for borrowed money, except for (i) indebtedness owing by the Company Subsidiary to conduct the Company, (ii) indebtedness incurred to refinance any existing indebtedness in an amount not to exceed, and on terms no less favorable in the aggregate than, such existing indebtedness, and (iii) indebtedness for borrowed money incurred with respect to acquisitions permitted pursuant to Section 7.1(e) or with respect to capital expenditures permitted pursuant to Section 7.1(i); (g) grant any Lien in any of its operations material assets to secure any indebtedness for borrowed money, except in connection with indebtedness permitted under Section 7.1(f) or Section 7.1(h); (h) issue any debt securities or assume, endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, other than (i) loans or advances to the Company Subsidiary and (ii) advances of travel and other out-of-pocket expenses to directors, officers and employees in the ordinary course of business consistent with past practices; (i) authorize or make any commitment with respect to capital expenditures that exceeds the Company’s capital expenditures budget for fiscal year 2014 by $250,000 individually or $500,000 in the aggregate; (j) enter into any new line of business outside of its existing business segments; (k) adopt or amend any Company Benefit Plan, increase in any manner the compensation or fringe benefits of any director, officer or employee of the Company or the Company Subsidiary, pay, fund or accelerate the vesting of any benefit not provided for by any existing Company Benefit Plan, in each case except (i) as reasonably necessary to comply with applicable Law or to address the requirements of this Agreement or any Contracts the Company or the Company Subsidiary has entered into prior to the date hereof that have been disclosed on the Company Disclosure Schedule if required to be disclosed thereon or (ii) in connection with employees who are not directors or executive officers (as such term is used in Rule 3b-7 of the Exchange Act) in the ordinary course of business consistent with past practice; (l) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than (i) performance of contractual obligations in accordance with their terms, (ii) payment, discharge, settlement or satisfaction in the ordinary course of business consistent with past practice, or (iii) payment, discharge, settlement or satisfaction in accordance with their terms, of claims, liabilities or obligations that have been (x) disclosed in the most recent financial statements (or the notes thereto) of the Company included in the Prior Company SEC Filings or contemplated by documents made available to Parent prior to Measurement Date or (y) incurred since the date of such financial statements in the ordinary course of business consistent with past practice; (m) except as otherwise permitted by this Agreement, including Section 7.1(e) and Section 7.3, adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or the Company Subsidiary (other than the Merger); (n) dispose of, sell, lease, license or otherwise transfer, any of the Company’s or the Company Subsidiary’s material assets, properties, interests or businesses, other than (i) disposing of, selling, leasing or otherwise transferring obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect licensing owned Company Intellectual Property on a non-exclusive basis in the rights ordinary course of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaserbusiness consistent with past practice; (bo) take enter into, renew, amend or modify in any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take material respect or terminate any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure ScheduleMaterial Contract or otherwise waive, from the date hereof and prior to the Closing Date (the "Blackout Period")release or assign any material rights, issue claims or sell any equity securities or securities exercisable or convertible into equity securities benefits of the Company or any the Company SubsidiarySubsidiary thereunder; provided, other than however, that the foregoing shall not prevent or preclude the Company or the Company Subsidiary from (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options negotiating and/or renewing in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as of the date hereof and issuances of Common Stock any Company Material Contracts which expire upon exercise of such stock options and their terms or (ii) issuances entering into any customer or supplier Contracts in the ordinary course of Common Stock on conversion business consistent with past practice, regardless of whether or not any Series A Preferred Stock or Convertible Debentures outstanding such Contract would constitute a Company Material Contract if it had been entered into as of the date hereof; (p) make any material change in its methods of accounting, except as required by concurrent changes in GAAP or in Regulation S-X of the Exchange Act; (q) make or change any material Tax election, adopt or change any material Tax method of accounting, consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim, audit or assessment, change any annual Tax accounting period, enter into any Tax allocation agreement, Tax sharing agreement, or Tax indemnity agreement, file any amended Tax Return that is material or settle or compromise any material Tax claim, audit or assessment; or (er) acquire knowingly commit or subscribe for shares agree to take any of the foregoing actions or securities any action which would result in any company of the Offer Conditions or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering of the conditions to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does Merger set forth in Article 8 not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000being satisfied.

Conduct of Business by the Company Pending the Closing. During (a) Seller and the period from Company agree that during the date hereof Interim Period, except as (1) expressly contemplated by the Reorganization, any other provision of this Agreement or any Transaction Document, (2) set forth in Section 6.01 of the Company Disclosure Schedule, and (3) required by applicable Law (including as may be requested or compelled by any Governmental Authority), unless Future Health shall otherwise consent in writing (which consent shall not be unreasonably conditioned, withheld or delayed): (i) the Company shall, and Seller shall cause the Company to, conduct its Business in the ordinary course of business and in a manner consistent with past practice, including, without limitation, with respect to payment of accounts payable and collection of accounts receivable; and (ii) the Closing Date Company shall, and Seller shall cause the Company to, use its reasonable best efforts to preserve substantially intact the business organization of the Company, to keep available the services of the current officers, key 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. (b) By way of amplification and not limitation, except as (1) expressly contemplated by the Reorganization, any other provision of this Agreement or any Transaction Document, (2) as set forth in Section 6.01(b) of the Company Disclosure Schedule, (3) in connection with the Company Permitted Interim Financing and (4) as required by applicable Law (including as may be requested or compelled by any Governmental Authority), the Company shall not, and Seller shall cause the Company not to, during the Interim Period, directly or indirectly, do any of the following without the prior written consent of Future Health (which consent shall not be unreasonably conditioned, withheld or delayed): (i) amend or otherwise change its Company Organizational Documents except in its sole discretion, Seller may convert the Company to a single member limited liability company in which case the membership interest(s) of the Company will be transferred pursuant to this Agreement, and will cause each this Agreement shall be deemed amended in any respect necessary or appropriate as a result thereof; (ii) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (A) any shares of any class of capital stock of the Company, 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 (including, without limitation, any phantom interest), of the Company, provided that the consent of Future Health shall not be required with respect to: the issuance or sale of any class of capital stock of the Company, or any Company Interim Period Convertible Notes or securities into which the Company Interim Period Convertible Notes are convertible in a bona fide financing (collectively, the “Company Interim Securities”) in accordance with the limitations set forth in Section 6.01(b)(ii) of the Company Disclosure Schedule in an aggregate principal amount not to exceed $75,000,000 (a “Company Permitted Interim Financing”); or (B) any material assets of the Company; (iii) except in connection with any REACH-related business, form any subsidiary or acquire any equity interest or other interest in any other entity or enter into a joint venture with any other entity; (iv) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its Subsidiaries capital stock; (iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, other than redemptions of equity securities from former employees and other service providers upon the terms set forth in the underlying agreements governing such equity securities; (vi) (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or any assets or any other business combination) any corporation, partnership, other business organization or any division thereof, other than the acquisition of inventory and up to conduct its operations $100,000 of fixed assets in the ordinary course of business consistent with past practice and practice; or (iiB) to preserve intact its current business organizationsincur any indebtedness for borrowed money or issue any debt securities or assume, keep available guarantee or endorse, or otherwise become responsible for, the service obligations of any person, or make any loans or advances, or intentionally grant any security interest in any of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it assets; provided that any of the foregoing undertaken in connection with the intention Company Permitted Interim Financing shall not require the consent of Future Health; (vii) (A) grant any increase in the compensation, incentives or benefits payable or to become payable to any current or former director, officer, employee or consultant of the Company (or their respective beneficiaries or dependents) as of the date of this Agreement, (B) enter into any new, or amend in any material respect any existing employment or severance or termination agreement with any current or former director, officer, employee or consultant, or (C) accelerate or commit to accelerate the funding, payment, or vesting of any compensation or benefits to any current or former director, officer, employee or consultant (except that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall notmay (1) increase base compensation of current directors, directly officers, employees or indirectlyconsultants as set forth on Section 6.01(b)(vii) of the Company Disclosure Schedule, and it will cause each of its Subsidiaries not to(2) provide increases in salary, between wages, bonuses or benefits to employees as required under any employment or consulting agreement in effect on the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of reflected on Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d4.11(a) of the Company Disclosure Schedule, from (3) change the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities title of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options its employees in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise of such stock options practice, and (ii4) issuances make annual or quarterly bonus or commission payments in the ordinary course of Common Stock business and in accordance with the bonus or commission plans existing on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and reflected on Section 4.11(a) of the Company Disclosure Letter); (viii) other than as required by Law or pursuant to the terms of an agreement entered into prior to the date of this Agreement and reflected on Section 4.11(a) of the Company Disclosure Schedule or that the Company is not prohibited from entering into after the date hereof, grant any severance or termination pay to, any director or officer of the Company; (ix) adopt, amend and/or terminate any material Plan except as may be required by applicable Law, is necessary in order to consummate the Transactions, or health and welfare plan renewals in the ordinary course of business; (x) materially amend other than reasonable and usual amendments in the ordinary course of business, with respect to accounting policies or procedures, other than as required by GAAP; (xi) (A) amend any material Tax Return, (B) change any material method of Tax accounting, (C) make, change or rescind any material election relating to Taxes, or (D) settle or compromise any material U.S. federal, state, local or non-U.S. Tax audit, assessment, Tax claim or other controversy relating to Taxes, (E) enter into any agreement with any Tax Authority (including a “closing agreement” under Code Section 7121) with respect to any Tax or Tax Returns, or (F) waive any statute of limitation in respect of Taxes; (xii) materially amend, or modify or consent to the termination (excluding any expiration in accordance with its terms) of any Material Contract or amend, waive, modify or consent to the termination (excluding any expiration in accordance with its terms) of the Company’s material rights thereunder, in each case in a manner that is adverse to the Company, except in the ordinary course of business; (xiii) enter into any contract, agreement or arrangement that obligates the Company to develop any Intellectual Property related to the Business, other than where the results of the Company’s performance would be Company-Owned IP; (xiv) intentionally permit any material item of Company-Owned IP to lapse or to be abandoned, invalidated, dedicated to the public, or disclaimed, or otherwise become unenforceable or fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and Taxes required or advisable to maintain and protect its interest in each and every material item of Company-Owned IP; or (xv) transfer, sublet, modify, terminate or otherwise amend any Lease or fail to satisfy the Company’s obligations under any Lease or other Material Contract, other than reasonable and usual amendments or modifications in the ordinary course of business; (xvi) enter into any formal or informal agreement or otherwise make a binding commitment to do any of the foregoing. Nothing herein shall require the Company to obtain consent from Future Health to do any of the foregoing if obtaining such consent might reasonably be expected to violate applicable Law, and nothing contained in this Section 6.01 shall give to Future Health, directly or indirectly, the right to control or direct the operations of the Company prior to the Closing Date Date. Prior to the Closing Date, each of Future Health and the Company shall exercise, consistent with the terms and conditions hereof, complete control and supervision of its respective operations, as required by Law. (c) The Company shall have until June 20, 2022 to deliver the Company Disclosure Schedule to Future Health. Notwithstanding that the Company Disclosure Schedule may be permitted delivered subsequent to sellthe date of this Agreement, leaseFuture Health acknowledges and agrees that the Company Disclosure Schedule shall have the effect of qualifying the representations and warranties and other matters, transfer or otherwise dispose as applicable pursuant to this Agreement, as of any sale the date of Conversion Offering Stock permitted under Section 5.01(ethis Agreement. Following initial delivery of the Company Disclosure Schedule, from time to time prior to the Closing, Seller shall have the right (but not the obligation) to supplement or amend the extent that Company Disclosure Schedule hereto with respect to any matter thereafter arising or of which Seller becomes aware after the aggregate sale price date of all such stock sold does not exceed $1,000,000delivery of the initial Company Disclosure Schedule (each a “Schedule Supplement”).

Conduct of Business by the Company Pending the Closing. During Except as set forth in the period Company Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior written consent of Parent, from the date hereof to until the Closing Date Appointment Time, the Company will shall, and will shall cause each of Company Subsidiary to, conduct its Subsidiaries business in all material respects in the ordinary course consistent with past practice, and shall (i) use all commercially reasonable efforts to conduct preserve intact its operations present business organization and assets, (ii) maintain in effect all material Permits that are required for the Company or such Company Subsidiary to carry on its business, (iii) use all commercially reasonable efforts to keep available the services of its present officers, key employees and independent contractors, (iv) use all commercially reasonable efforts to preserve existing relationships with its material customers, lenders, suppliers and other Persons having material business relationships with it, (v) use all commercially reasonable efforts to maintain and keep its properties in as good repair and condition as at present, ordinary wear and tear excepted, (vi) use all commercially reasonable efforts to keep in full force and effect insurance and bonds comparable in amount and scope of coverage to that now maintained by it; provided, however, that Company shall not renew existing insurance policies and/or, except as contemplated in Section 5.14(b), purchase new insurance policies for directors’ and officers’ liabilities at an aggregate annual premium cost equal to or in excess of the current annual premiums paid by the Company on its existing policies, (vii) perform in all material respects all obligations required to be performed by it under all material contracts, leases and documents relating to or affecting its assets, properties and business, (viii) comply with and perform in all material respects all obligations and duties imposed on it by all applicable Laws, and (ix) not take any action or fail to take any action which individually or in the aggregate would be reasonably likely to have a Company Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Appointment Time, without the prior written consent of Parent, the Company shall not, nor shall it permit any Company Subsidiary, directly or indirectly, to: (a) amend the Company Organizational Documents or the Organizational Documents of any Company Subsidiary; (b) (i) split, combine or reclassify any of its Equity Interests or amend the terms of any rights, warrants or options to acquire its securities, (ii) except for ordinary course dividends payable by a Company Subsidiary to the Company or another Company Subsidiary, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its Equity Interests or otherwise make any payments to holders of such Equity Interests in their capacities as such, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its Equity Interests, other securities or any rights, warrants or options to acquire its securities; (c) issue, deliver, award, sell, grant, pledge, encumber or transfer or authorize or propose the issuance, delivery, award, sale, grant, pledge, encumbrance or transfer of, any Equity Interests of the Company or any Company Subsidiary or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any Equity Interests of the Company or any Company Subsidiary, other than in connection with directors’ qualifying shares or the issuance of Company Common Stock pursuant to the exercise of Company Options granted prior to the date hereof; (d) acquire, directly or indirectly (whether pursuant to merger, stock or asset purchase, joint venture or otherwise), in one transaction or series of related transactions, any Person, any Equity Interests or other securities of any Person, any division or business of any Person or all or substantially all of the assets of any Person; (e) sell, assign, transfer, pledge, mortgage, lease, encumber or otherwise dispose of, or permit any material encumbrances to exist with respect to, any assets or other rights, other than sales of (i) immaterial assets in the ordinary course of business consistent with past practice and (ii) to preserve intact its current obsolete equipment and property no longer used in the operation of the business organizations, keep available of the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing:Company Subsidiary; (af) take any action which would (i) (A) incur any indebtedness for borrowed money (capital leases shall be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming treated as indebtedness for borrowed money for purposes of this clause paragraph (ii) that f)), except borrowings under the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights terms of the Purchaser; Credit Agreement to fund working capital in the ordinary course consistent with past practice, (bB) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity debt securities or securities exercisable warrants or convertible into equity other rights to acquire any debt securities of the Company or any Company Subsidiary, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than to the Company or any wholly owned Company Subsidiary, or (iD) issuances assume, guarantee or endorse, or otherwise become responsible for, the obligations of Common Stock upon the exercise of stock options outstanding as any Person (other than obligations of the date hereof, issuances Company or any wholly owned Company Subsidiary and the endorsements of stock options negotiable instruments for collection in the ordinary course of business consistent with past practice pursuant practice), (E) enter into any “keep well” or other contract, agreement or arrangement to stock option plans and employee benefit schemes existing as maintain any financial statement condition of another Person (other than the Company or any wholly owned Company Subsidiary), or (ii) enter into or materially amend any contract, agreement, commitment or arrangements to effect any of the transactions prohibited by this paragraph (f); (g) (i) enter into any contract, agreement or arrangement that if entered into prior to the date hereof and issuances of Common Stock upon exercise of such stock options and would be a Material Contract, (ii) issuances amend or modify in any material respect or terminate any Material Contract or (iii) otherwise waive, release or assign any material rights, claims or benefits of Common Stock the Company or any Company Subsidiary under any Material Contract; (h) (i) increase the number of Company Employees based on conversion the number of any Series A Preferred Stock or Convertible Debentures outstanding Company Employees employed as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions with respect to employees hired in the ordinary course of business, (ii) enter into an employment agreement with, or subscriptions for shares otherwise agree to provide compensation to, any Person with targeted annual cash compensation in excess of $500,000 (other than with respect to employees hired pursuant to offers of employment outstanding on the date hereof or securities with respect to newly hired employees filling positions that are reasonably and in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions good faith deemed by the Company and to be essential, but in no event, in the aggregate to exceed two people); (i) change any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price Company’s methods of any acquisition accounting in effect at December 28, 2008, except as required by changes in GAAP or subscription of such further shares or securities within 30 days by Regulation S-X of the relevant Conversion Offering purchased solely using Exchange Act, as concurred in by its independent registered public accounting firm and disclosed in writing to Parent; (j) (i) settle, pay, compromise or discharge, any Claim that is material to the proceeds business, financial condition or results of sale operations of the same class Company and the Company Subsidiaries, taken as a whole or (ii) settle, pay, compromise or discharge any Claim against the Company or any Company Subsidiary with respect to or arising out of shares the transactions contemplated by this Agreement; (k) other than as set forth in the Company Disclosure Schedule, (i) make any material Tax election or securities acquired take any position on any Company Return filed on or subscribed in such Conversion Offering); provided, however, that between after the date of this Agreement or adopt any method therein that is inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods, (ii) enter into any settlement or compromise of any material Tax liability, (iii) file any amended Company Return with respect to any material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax or (vi) surrender any right to claim a material Tax refund; (l) 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 Offer and the Closing Date Merger and the Company shall be permitted to sell, lease, transfer or otherwise dispose transactions contemplated hereby); (m) willfully take any action that would result in a material breach of any sale provision of Conversion Offering Stock permitted under Section 5.01(ethis Agreement, take any action that would result in a breach of Annex II, or take any action that would result in a failure to satisfy the conditions precedent set forth in Annex I; or (n) authorize, agree or commit, orally or in writing, to do any of the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During the period from (a) The Company agrees that between the date hereof of this Agreement and the Merger Effective Time or the date, if any, on which this Agreement is terminated pursuant to the Closing Date Section 8.1, except (i) as expressly set forth in Schedule 5.1(a) of the Company will Disclosure Letter, (ii) as required, contemplated or permitted pursuant to this Agreement, (iii) as may be required by Law or (iv) as consented to in writing by the PECO Parties (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall, and will shall cause each of its Subsidiaries the other Acquired Companies to, (iA) to conduct its operations their respective businesses in all material respects in the ordinary course Ordinary Course of business consistent with past practice Business and (ii) shall use all reasonable efforts to preserve keep intact its current business organizations, keep available the service of its current officers and employees their respective businesses and preserve its their respective relationships with Governmental Entities, customers, suppliers, distributorslandlords, lessorstenants, creditors, vendors, contractors business associates and others having business dealings with it with whom they deal, (B) use reasonable best efforts to maintain their respective assets and properties in their current condition (ordinary wear and tear excepted) and (C) use commercially reasonable efforts to maintain the intention that its goodwill and ongoing business shall be unimpaired at Company’s status as a REIT within the Closing Datemeaning of the Code. The Company agrees that it shall not, directly or indirectlyWithout limiting the generality of the foregoing, and it will cause each except (I) as expressly set forth in Schedule 5.1a) of its Subsidiaries the Company Disclosure Letter, (II) as required, contemplated or permitted pursuant to this Agreement, (III) as required by applicable Law or (IV) as consented to in writing by PECO (which consent shall not tobe unreasonably withheld, conditioned or delayed), between the date of this Agreement and the Closing DateMerger Effective Time or the date, except as specifically contemplated by any other provision of if any, on which this AgreementAgreement is terminated pursuant to Section 8.1, unless the Purchaser Company shall otherwise consent in writingnot, and shall not permit the Company Operating Partnership to, directly or indirectly: (ai) amend its charter or bylaws (or comparable documents); (ii) adjust, split, combine, subdivide or reclassify any shares of capital stock; (iii) take any action that would, or fail to take any action, the failure of which would to be taken would, reasonably be expected to cause (iA) the Company to fail to qualify as a REIT or (B) any Company Subsidiary to cease to be reasonably likely to result in treated as any of (I) a partnership or disregarded entity for federal income tax purposes or (II) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the circumstances described in clauses (i) through (xx) applicable provisions of Section 3.07(a856 of the Code, as the case may be; (iv) take any action under the Company Governing Documents or otherwise (including by resolution) that would give dissenters’, appraisal or similar rights to the holders of Company Common Stock with respect to the Merger or the other Transactions; (v) 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 as permitted by Section 5.3 and this Section 5.1(a); or (iivi) affect the rights authorize, or commit or agree to, whether in writing or otherwise, any of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser;foregoing actions. (b) take any action Notwithstanding anything to cause the Company's representations and warranties contrary set forth in Article III this Agreement, nothing in this Agreement shall prohibit the Company from taking any action, at any time or from time to be untrue; (c) agree time, that in the reasonable judgment of the Company, 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 Merger 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. If the Company determines that it is necessary to take any of such action, it shall notify the actions described in Sections 5.01(a) and (b) above; (d) except PECO Parties as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and soon as reasonably practicable prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise of taking such stock options and (ii) issuances of Common Stock on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000action.

Conduct of Business by the Company Pending the Closing. During the period from The Company agrees that, between the date hereof to of this Agreement and the Closing Date Effective Time, except as set forth in Section 5.1 of the Company will Disclosure Schedule or as specifically permitted by any other provision of this Agreement, unless Parent shall otherwise agree in writing (which agreement shall not be unreasonably withheld, conditioned or delayed), the Company will, and will cause each Company Subsidiary to, (A) conduct its operations in all material respects in the ordinary and usual course of business consistent with past practice, (B) use its Subsidiaries 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 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 is reasonably necessary to preserve substantially intact its business organization, (C)(i) within 30 days of the date of this Agreement, provide Parent and Merger Sub an updated disclosure schedule pursuant to Section 3.18.1 of this Agreement which, in the case of patents and patent applications, shall include without limitation the correct patent or registration number and the current assignee or owner of record at the relevant Governmental Entity for each applicable jurisdiction and (ii) use its reasonable best efforts to take all actions necessary to establish the Company’s ownership of all right, title and interest in and to the Material Intellectual Property (subject to the security interests set forth in Section 3.18.1 of the Company Disclosure Schedule), including but not limited to having inventors execute a written assignment of all rights to inventions and filing such assignments with the applicable Governmental Entities, (D) use its reasonable best efforts to (i) take all actions necessary for the Company and each Company Subsidiary to conduct be duly organized, validly existing and in good standing under the Laws of the jurisdiction of its operations incorporation or organization as of the Effective Time, (ii) to ensure that the Company and each Company Subsidiary has all requisite corporate or organizational, as the case may be, power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted, and (iii) deliver or cause to be delivered to Parent and Merger Sub prior to the Effective Time true and complete copies of the currently effective certificate of incorporation and bylaws, or equivalent organizational or governing documents, of each Company Subsidiary, (E) deliver to Parent and Merger Sub as soon as practicable but in no event later than the Effective Time a schedule which sets forth, for each Company Subsidiary, as applicable: (1) its authorized capital stock or other Equity Interests, (2) the number of its outstanding shares of capital stock or other Equity Interests and type(s) of such outstanding shares of capital stock or other Equity Interests and (3) the record owner(s) thereof, and (F) within 30 days of the date of this Agreement, except for contracts disclosed on Section 3.15.1 of Company Disclosure Schedule, provide Parent and Merger Sub a true and complete list of each contract (and a copy thereof) to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assets and which involves (i) a supplier or a customer providing for annual payments or receipts in excess of $50,000 or (ii) future expenditures or receipts by the Company or any Company Subsidiary of more than $50,000 in any one year period that cannot be terminated on less than 90 days’ notice without material payment or penalty. The Company and Parent agree to meet (whether in person or by means of telephonic meeting) at least monthly at reasonable times upon prior notice between the date hereof and the earlier of (x) the Effective Time and (y) the date that this Agreement expires or is terminated in accordance with Article 7, to review the Company’s compliance with its obligations under Sections 5.1(C), (D), (E) and (F) above. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 5.1 of the Company 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 Company Subsidiary to, between the date of this Agreement and the Effective Time, 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, conditioned or delayed): Section 5.1.1 amend or otherwise change the Company Certificate or the Company Bylaws; 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 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 such interest represented by contract right), of the Company or any Company Subsidiary, other than the issuance of Company Common Stock (and the related Company Rights) upon the exercise of Company Options or Company Warrants outstanding as of the date hereof in accordance with their terms (or, if a Triggering Event (as defined in the Company Rights Agreement) by a party other than Parent or Merger Sub shall occur, the Company Rights) 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 Material 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 material 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; Section 5.1.3 declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock or enter into any agreement with respect to the voting 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 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, (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 than a wholly-owned Company Subsidiary) 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, (D) make or authorize any material capital expenditure in excess of the Company’s budget as disclosed to Parent prior to the date hereof or (E) enter into or 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 or any Company Benefit Plan in existence on the date of this Agreement as disclosed in Section 3.14.2(A) of the Company Disclosure Schedule: (A) increase the compensation or benefits payable or to become payable to its current or former 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 current or former 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, 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; 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; 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, (iiB) to preserve intact its current 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 organizationsconsistent with past practice, keep available the service (C) delay or accelerate payment of any account payable in advance of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly due date or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which such liability would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options have been paid in the ordinary course of business consistent with past practice pursuant 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, other than in the ordinary course of business consistent with past practice or 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, change any Tax accounting period or any method of Tax accounting (except as required by applicable Law), file any amended material Tax Return, enter into any closing agreement relating to stock option plans and employee benefit schemes existing as any material Tax, surrender any right to claim a material Tax refund, or consent to any extension or waiver of the date hereof and issuances statute of Common Stock upon exercise limitations period applicable to any material Tax claim or assessment; Section 5.1. 11 take, or agree to take, any action that would prevent the Merger from qualifying as a reorganization within the meaning of such stock options and (iiSection 368(a) issuances of Common Stock on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000.Code;

Conduct of Business by the Company Pending the Closing. During the period from The Company covenants and agrees that, between the date hereof to of this Agreement and the Closing Date Effective Time, except (a) as set forth in Section 5.1 of the Company will Disclosure Schedule, (b) as expressly required pursuant to this Agreement or (c) as consented to in writing by Parent (in its sole discretion; provided, however, that, with respect to subsections (xii) and (xviii) below, such consent shall not be unreasonably withheld, delayed or conditioned), the Company will, and will cause each of its Subsidiaries Company Subsidiary to, (i) to conduct its operations in all material respects in the ordinary course of business consistent with past practice, (ii) use commercially reasonable efforts to keep available the services of the current officers of the Company and each Company Subsidiary and preserve the goodwill and current relationships of the Company and each Company Subsidiary with customers, 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 an extension thereof, except (a) as set forth in Section 5.1 of the Company Disclosure Schedule, (b) as expressly required by any other provision of this Agreement, (c) as required by applicable Law or (d) as consented to in writing by Parent (in its sole discretion; provided, however, that, with respect to subsections (xii) and (xviii) below, such consent shall not be unreasonably withheld, delayed or conditioned), 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, or agree to do, any of the following: (i) amend or otherwise change the Company Certificate or the Company Bylaws or the comparable organizational documents of any Company Subsidiary; (ii) except to the extent required by (A) applicable Law, (B) the existing terms of any Company Benefit Plan described in Section 3.11(a) of the Company Disclosure Schedule or (C) any other plan or agreement in effect as of the date of this Agreement (including any collective bargaining agreement), amend, modify or adjust the terms of any Equity Interests, including the Company Warrants, the Restricted Stock and the Company Options, and any Contracts governing such interests; (iii) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any Equity Interests, except from holders of Company Options or Company in connection with the full or partial payment of the exercise price and any applicable Taxes payable by such holder upon exercise of Company Options to the extent required under the terms of such Company Options or in the ordinary course of business consistent with past practices; (iv) issue, sell, deliver, pledge, dispose of, grant, transfer, subject to any Lien 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, calls, commitments, 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, in each case other than (A) the issuance of Shares pursuant to the exercise of the Company Options and Company Warrants outstanding on the date hereof in accordance with their terms on the date hereof and (B) the issuance of shares upon the exercise of the Top-Up Option; (v) sell, pledge, mortgage, dispose of, transfer, lease, license, guarantee, subject to any Lien, encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any of the property or assets (including Intellectual Property) of the Company or any Company Subsidiary, other than pursuant to existing contracts or commitments with respect to the sale or purchase of goods, and pursuant to licenses for the licensing to or from third parties of Intellectual Property, in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizationsdispositions of immaterial tangible assets of the Company, keep available including the service disposition of its current officers and employees and preserve its relationships with customersobsolete or worn out equipment, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) ordinary course of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaserbusiness consistent with past practice; (bvi) take declare, set aside, make or pay any action dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities capital stock of the Company or any Company Subsidiary (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; (vii) 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 or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (viii) merge or consolidate the Company or any Company Subsidiary with any Person (other than the Merger) or 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); (ix) directly or indirectly acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) in one transaction or any series of related transactions any Equity Interests in any Person or any business or division of any Person or all or substantially all of the assets of any Person (or business or division thereof), other than acquisitions of assets for consideration that is individually not in excess of $100,000, or in the aggregate not in excess of $1,000,000; (ix) issuances (A) incur or assume any long-term or short-term indebtedness for borrowed money or issue any debt securities, (B) assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), the obligations of Common Stock upon any Person (other than a wholly-owned Company Subsidiary) for borrowed money or (C) cancel any indebtedness or waive or assign any claims or rights of substantial value, except (x) in connection with refinancings of existing indebtedness at the exercise maturity thereof so long as the Company uses its existing credit facility on the date hereof to refinance such indebtedness or (y) short-term indebtedness for trade payables incurred in the ordinary course of stock options outstanding business consistent with past practice; provided, however, that, notwithstanding anything to the contrary in this Agreement, if the Effective Time has not occurred on or prior to December 8, 2009, the Company may, in consultation with Parent, undertake all actions reasonably necessary to amend its existing credit facility to extend its maturity, on terms reasonably acceptable to the Company; provided, further, that, the Company will continue to comply with its obligations under this Agreement, including Section 5.12, and will not incur any additional indebtedness in connection with such amendment; (xi) except for advances for expenses in the ordinary course of business consistent with past practice, make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Company Subsidiary); (xii) terminate, cancel, renew, transfer, assign, license, encumber or request or agree to any material change in 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; (xiii) make, authorize or incur any capital expenditure or otherwise acquire any asset, or any obligations or liabilities in respect thereof in excess of the Company’s capital expenditure budget as disclosed to Parent prior to the date hereof; (xiv) except to the extent required by (A) applicable Law, (B) the existing terms of any Company Benefit Plan described in Section 3.11(a) of the Company Disclosure Schedule or (C) any other plan, arrangement, agreement or corporate policy in effect as of the date hereofof this Agreement (including any collective bargaining agreement): (1) increase the compensation or benefits payable or to become payable to its directors, issuances of stock options officers or employees other than customary increases in the ordinary course of business consistent with past practice pursuant made to employees below the level of Vice President (which increases, subject to clause (2) below, are customarily made after the end of a calendar year), (2) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or employee at the level of Vice President or above, (3) establish, adopt, enter into or materially amend any material collective bargaining, bonus, profit sharing, thrift, compensation, stock option plans 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 (4) waive or materially amend any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan; (xv) (A) pre-pay any long-term debt, (B) waive, settle, release, pay, discharge, satisfy or commence any claims, liabilities, obligations or litigations (absolute, accrued, asserted or unasserted, contingent or otherwise), in each case made or pending against the Company, any Company Subsidiary, or any of their respective officers and employee benefit schemes existing directors, other than any settlement, payment, discharge or satisfaction where the amounts paid or to be paid are less than $100,000 in the aggregate, (C) 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, (D) 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 or (E) vary its inventory practices in any material respect from past practices; (xvi) make any change in accounting policies, practices, principles, methods or procedures used by the Company, other than as required by GAAP or by a Governmental Entity; (xvii) (A) make, change or rescind any material tax election, (B) settle or compromise any material Tax Claim or liability for a material amount of Taxes, (C) change (or make a request to any Taxing Authority to change) any material accounting or material Tax reporting principles, methods or policies or (D) surrender any Tax refund for a material amount of Tax or file any or amend any Tax Return, in each case, other than in the ordinary course of business or consistent with past practice; (xviii) enter into, amend or modify any union recognition agreement, collective bargaining agreement or similar agreement with any trade union or representative body; (xix) create or have any subsidiary of the date hereof and issuances of Common Stock upon exercise of Company, other than the Company ýSubsidiaries;ý (xx) subject to Section 5.4 hereof, take any action (or omit to take any action) if such stock options and action (iior omission) issuances of Common Stock on conversion of would reasonably be expected to result in any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereofconditions to the obligations of ýParent or the Purchaser to consummate the Merger set forth in Article 6 and the ýconditions to consummate the Offer in Annex I not being satisfied; or (exxi) acquire authorize or subscribe for shares enter into any Contract or securities in otherwise make any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering commitment to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and do any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During (a) Except as set forth on Schedule 4.1 or as contemplated by this Agreement (including but not limited to Section 4.12) and the Restructuring Transaction or any of the other Transaction Documents, to which the Investors are parties during the period from the date hereof to of this Agreement and continuing until the Closing Date earlier of the termination of this Agreement or the Closing, unless each Investor otherwise agrees in writing, the Company will shall, and will shall cause each of its the Subsidiaries to, (i) to conduct its operations business only in the ordinary course and consistent with past practice or as may be ordered or otherwise required by the Bankruptcy Court; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other Persons with which it has significant business relationships; (iii) use reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice and practice; (iiiv) use reasonable best efforts to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each operations of its Subsidiaries business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. (b) Except as expressly contemplated by this Agreement (including but not tolimited to Section 4.12) and the Restructuring Transaction or as set forth on Schedule 4.1, between the date of this Agreement and the Closing DateClosing, the Company shall not, and shall cause each of the Subsidiaries not to, without the prior written consent of each Investor: (i) (x) incur any additional Indebtedness, except as specifically contemplated by the Forebearance Agreement, (y) make any loans, advances or capital contributions to, or investments in, any Person, except as contemplated by the Forebearance Agreement or (z) make capital expenditures (1) in any fiscal quarter that exceed the budget for capital expenditures set forth in the Operational Plan for such fiscal quarter by more than ten percent and (2) in the aggregate, for all fiscal quarters that exceed the budget for capital expenditures set forth in the Operational Plan for such overall period by more than five percent; (ii) change any method of accounting or accounting practice used by the Company or any Subsidiary, other provision than such changes required by GAAP; (iii) repurchase, redeem or otherwise acquire or exchange any share of Common Stock, Preferred Stock or other equity interests other than as required by the terms of the Preferred Stock or the Class B Common Stock; (iv) issue or sell any additional shares of the capital stock of, or other equity interests in, the Company or any Subsidiary, or securities convertible into or exchangeable for such shares or other equity interests, or issue or grant any subscription rights, options, warrants or other rights of any character relating to shares of such capital stock, such other equity interests or such securities, except for (x) issuances of Class A Common Stock pursuant to the exercise of options to purchase or conversion rights exercisable for Class A Common Stock, in each case outstanding on the date hereof, (y) options to purchase 28,246,805 shares of Class A Common Stock pursuant to the exchange offer filed by the Company with the SEC on Schedule TO on May 29, 2001, as amended and (z) options to purchase up to 610,000 shares of Class A Common Stock to be issued as promotion awards pursuant to the XO Communications, Inc. Stock Option Plan; (v) declare, set aside, make or pay any dividend, or make any distribution, in respect of any shares of capital stock of the Company, including dividends required to be paid by the Company pursuant to the terms of the Preferred Stock; (vi) redeem, retire, defease, offer to purchase or change any material term of any Public Debt or any indebtedness for borrowed money except as required by the Forebearance Agreement in connection with asset sales otherwise permitted by this Agreement, unless the Purchaser shall otherwise consent in writing:; (avii) amend (x) the Company's Certificate of Incorporation, bylaws or other organizational documents or (y) any Subsidiary's charter, bylaws or other organizational documents except for the adoption and filing of the Amended and Restated Certificate of Incorporation; (viii) take any action which would (i) be that is reasonably likely to result in the circumstances described in clauses (ix) through (xx) of Section 3.07(a) or (ii) affect the rights any of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III II becoming false or inaccurate in any material respect as of the Closing Date or (y) the failure of any of the conditions set forth in Article V to be untruesatisfied; (cix) agree to take make any interest payments or other distributions on or in respect of the actions described in Sections 5.01(a) and (b) abovePublic Debt; (dx) except as set forth in Section 5.01(dpermit any insurance policy listed on Schedule 2.17 to lapse or cease to remain effective or be renewed when subject to expiration without (A) replacing such policy (the "Old Policy") immediately upon notice of pending, threatened or actual cancellation, termination, expiration with another policy (the "New Policy") (1) that provides the Company and its Subsidiaries with coverage that is no less favorable than that provided by the Old Policy, taking into account the insurer(s), the insured(s), the type, scope and amount of coverage, deductibles, exclusions and other material terms (the "Material Terms") of the Disclosure ScheduleOld Policy and the New Policy or (2) the Material Terms of which are customary for similar companies operating in the same industry and geographic markets as the Company and its Subsidiaries and which are adequate and suitable for the business and operations of the Company and its Subsidiaries or (B) otherwise ensuring that the potential exposure or liability of the Company, from the date hereof Subsidiaries, directors, officers, employees, assets and prior properties for any risk or any Loss is no greater without the Old Policy or the New Policy than is customary for similar companies operating in the same industry and geographic markets as the Company and the Subsidiaries and which are adequate and suitable for the business and operations of the Company and the Subsidiaries; provided, however, that notwithstanding anything to the Closing Date contrary in this Section 4.1(b)(x), the Company shall at all times during the term of the Stockholders Agreement maintain directors' and officers' liability insurance in such amounts and otherwise on terms and conditions reasonably acceptable to each Investor; (xi) (A) materially increase the compensation or benefits of, or pay any bonuses or other similar compensation to, any officer, director, employee or consultant, except for ordinary merit increases for employees other than officers based on periodic reviews in accordance with past practice; or (B) enter into, modify or terminate any Plan, (including without limitation, any employment agreement or severance agreement), provided, however, that notwithstanding clause (A) above, the Company and the Subsidiaries may pay bonuses under and pursuant to the Company's 2001 Bonus Plan (the "Blackout Period2001 Bonus Plan")) for the fiscal year ended December 31, issue or sell any equity securities or securities exercisable or convertible into equity securities 2001, in an aggregate amount (1) which does not exceed $28,000,000 and is otherwise approved by the compensation committee of the Board of Directors and (2) which, when added to the total aggregate amount of bonuses and other amounts paid or payable under the Retention Bonus Plan as a result of, or in connection with, the transactions contemplated hereby and by the other Transaction Documents, does not exceed $35.0 million; provided, further, that the Company and the Subsidiaries shall not pay any bonus or other amount under or pursuant to the 2001 Bonus Plan to any Company Subsidiaryofficer, director, employee or consultant who has received, or is to receive, any bonus or other amount under or pursuant to the Retention Bonus Plan as a result of, or in connection with, the transactions contemplated hereby and the other Transaction Documents; (xii) sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of any of its assets other than (iA) issuances immaterial dispositions of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options personal property in the ordinary course of business consistent with past practice pursuant practice, (B) swaps of "dark fiber" for "dark fiber" in the ordinary course of business consistent with past practice, (C), the sale or grant of indefeasible rights to stock option plans use of "dark fiber" in the ordinary course of business consistent with past practice, so long as any such sale or grant, or any series of related sales or grants, does not in the aggregate exceed $10 million in any calendar quarter or (D) a sale of either (x) XO One, Inc. or its assets or (y) XO Limited, its assets or those of its subsidiaries, provided that the net consideration received by the Company for any such sale shall be in a form and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise of such stock options and (ii) issuances of Common Stock on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereofamount reasonably acceptable to each Investor; or (exiii) acquire or subscribe for shares or securities in agree to take any company or acquire any business or invest in any joint ventureof the actions restricted by this Section 4.1. (c) Notwithstanding the foregoing provisions of this Section 4.1, in each case other than acquisitions or subscriptions for shares or securities in connection the parties acknowledge that the transfer of control of the Company may require Regulatory Approvals and that all final decisions with a Conversion Offering respect to the extent that the aggregate price of all such acquisitions or subscriptions Communications Licenses must be taken by the Company and any until the Regulatory Approvals have been obtained. The parties do not intend that the foregoing provisions of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days this Section 4.1 shall transfer control of the relevant Conversion Offering purchased solely using the proceeds of sale Company or of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between Communications Licenses prior to obtaining the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000Regulatory Approvals.

Conduct of Business by the Company Pending the Closing. During The ------------------------------------------------------ Company covenants and agrees that, during the period from the date hereof to of this Agreement and continuing until the Closing Date earlier of the termination of this Agreement or the Closing, except for actions unanimously approved by the Company's Board of Directors at a duly called and held meeting or unless the Purchasers otherwise agree in writing, the Company will shall, and will shall cause each of its the Subsidiaries to, (i) to conduct its operations business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other Persons with which it has significant business relationships; (iii) use reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice and practice; (iiiv) use reasonable best efforts to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each operations of its Subsidiaries not tobusiness; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. Except as expressly contemplated by this Agreement or as set forth on Schedule 4.1, between the date of this Agreement and the Closing DateClosing, except as specifically contemplated by the Company shall not, and shall cause each of the Subsidiaries not to, do any other provision of this Agreementthe following without the prior written consent of the Purchaser, unless the Purchaser which consent shall otherwise consent in writingnot be unreasonably withheld or delayed: (a) (i) issue any debt securities, (ii) incur any additional indebtedness (other than indebtedness pursuant to the Company's Senior Secured Credit Facilities), (iii) assume, grant, guarantee or endorse, or make any other accommodation or arrangement making the Company or any Subsidiary responsible for, any liabilities or other obligations of any other Person or (iv) make any loans, advances or capital contributions to, or investments in, any Person; (b) change any method of accounting or accounting practice used by the Company or any Subsidiary, other than such changes required by GAAP; (c) repurchase, redeem (except pursuant to Section 4.5 of the Company's Certificate of Incorporation) or otherwise acquire or exchange any share of Common Stock or other equity interests; except for issuances of Class A Common Stock pursuant to the exercise of options to purchase Class A Common Stock outstanding on the date hereof and other issuances of Class A Common Stock, in each case as listed on Schedule 2.3, issue or sell any additional shares of the capital stock of, or other equity interests in, the Company or any Subsidiary, or securities convertible into or exchangeable for such shares or other equity interests, or issue or grant any subscription rights, options, warrants or other rights of any character relating to shares of such capital stock, such other equity interests or such securities; or declare, set aside, make or pay any dividend, or make any distribution, in respect of any shares of capital stock of the Company other than as required with respect to the Series A Preferred Stock; (d) amend the Company's or any Subsidiary's charter or by-laws or other organizational documents except with respect to the filing of the Certificates of Designation; (e) take any action which would (i) be that is reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights any of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III II becoming false or inaccurate in any material respect as of the Closing Date or (ii) any of the conditions to be untrue;the obligations of the Purchasers set forth in Section 5.2 not being satisfied; or (cf) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in restricted by this Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise of such stock options and (ii) issuances of Common Stock on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,0004.1.

Conduct of Business by the Company Pending the Closing. During the period (a) Except as expressly contemplated or permitted by this Agreement, from the date hereof of this Agreement until the earlier to occur of the Closing and the termination of this Agreement pursuant to ARTICLE IX, unless Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld, delayed or conditioned), or except as required by Applicable Law, the Company shall, and shall cause its Subsidiaries to, conduct their business in the Ordinary Course of Business in all material respects and, to the Closing Date the Company will and will cause each of its Subsidiaries extent not inconsistent therewith, use commercially reasonable efforts to (i) to conduct its operations in the ordinary course of business consistent with past practice and (ii) to preserve substantially intact its their current business organizations, keep available the service of its current officers and employees and (ii) preserve its in all material respects their relationships with customers, suppliers, distributorslicensors, lessorslicensees, creditorsdistributors and other third parties that are material to the operation of the business and (iii) keep available their present officers and key employees; provided, vendorsthat, contractors in the case of the immediately preceding clauses (i), (ii) and others having business dealings (iii), commercially reasonable efforts shall not be deemed to require the Company or any of its Subsidiaries to exert any efforts with it respect to a particular matter that are greater than the level of efforts exerted by the Company or such Subsidiary with respect to such matter prior to the intention date of this Agreement; provided, further, that (i) no action or inaction by the Company or any of its goodwill and ongoing business Subsidiaries with respect to any of the matters specifically addressed by another provision of this Section 7.1 shall be unimpaired at deemed to be a breach of the portion of this sentence preceding this proviso unless such action or inaction would constitute a breach of such other provision and (ii) the failure of Parent to take any action prohibited by Section 7.2(b) shall not be deemed to be a breach of this Section 7.1(a)(i), (ii) or (iii). (b) From the date of this Agreement until the earlier to occur of the Closing Date. The and the termination of this Agreement pursuant to ARTICLE IX, except (1) as required by Applicable Law or (2) as expressly contemplated or permitted by this Agreement, the Company agrees that it shall not, directly or indirectly, and it will shall cause each of its Subsidiaries not to, between without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned): (i) amend or modify the Organizational Documents of the Company or any of its Subsidiaries; (ii) directly or indirectly (A) split, combine or reclassify its capital stock or any equity securities or obligations convertible into or exchangeable for, or any other right to acquire, any shares of its capital stock, (B) make, declare or pay any dividend or distribution (other than dividends and distributions made, declared or paid to the Company or a Subsidiary of the Company by another Subsidiary of the Company) on, or redeem, purchase or otherwise acquire, any shares of its capital stock or any equity securities or obligations convertible into or exchangeable for, or any other right to acquire, any shares of its capital stock or such securities (other than (1) pursuant to Contracts set forth on Section 7.1(b)(ii) of the Company Disclosure Letter and (2) the redemption, purchase or acquisition of any such shares, securities, obligations or rights of any wholly owned Subsidiary of the Company by the Company or another wholly owned Subsidiary of the Company, (C) grant any Person any right or option to acquire any shares of its capital stock or other equity securities or any other equity- based compensation award based on shares of its capital stock (other than (1) pursuant to any Benefit Plan in effect on the date of this Agreement and (2) to the Closing Date, except as specifically contemplated Company or a wholly owned Subsidiary of the Company by any other provision another wholly owned Subsidiary of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(aCompany) or other equity securities, (iiD) affect the rights issue, deliver, sell, grant, pledge, dispose of the Purchaser under the Certificate or encumber (other than Permitted Encumbrances) any shares of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue its capital stock or sell any equity securities or securities exercisable or obligations convertible into or exchangeable or exercisable for, or any other right to acquire, any shares of its capital stock or such equity securities of the Company or any Company Subsidiary, (other than (i1) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise of such stock options and (ii) issuances of Common Stock any Benefit Plan in effect on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and (2) to the Company or any wholly owned Subsidiary of the Company by another wholly owned Subsidiary of the Company) and except for the issuance or delivery of shares of Company Common Stock pursuant to the exercise or settlement of the Company Options, the Restricted Stock Units and awards under the Directors’ Deferred Compensation Plan that are outstanding as of the date of this Agreement and in accordance with the existing terms thereof or (E) enter into any Contract with respect to the sale, voting, registration or repurchase of its capital stock or other equity securities; (iii) merge with, enter into a consolidation with or acquire a substantial portion of the stock or other equity securities, assets or business of any Person or any division or line of business thereof, other than (A) in the case of any asset acquisition, the acquisition of inventory, supplies, equipment and raw materials in the Ordinary Course of Business, (B) capital expenditures, which shall be subject to the provisions of clause (xiv) below, (C) transactions for consideration (including the assumption of debt) not exceeding $5,000,000 in the aggregate and (D) transactions between or among the Company and any wholly owned Subsidiary of the Company or between or among wholly owned Subsidiaries of the Company; (iv) incur any Indebtedness (other than accruing interest in connection with existing Indebtedness), except for (A) borrowings under the Company’s or any of its Subsidiaries’ existing credit facilities as in effect on the date of this Agreement, (B) the incurrence of any Indebtedness that will be repaid by the Company or any of its Subsidiaries at or prior to the Closing, (C) commodity swap agreements, commodity cap agreements, interest rate cap agreements, interest rate swap agreements, foreign currency exchange agreements and other similar agreements entered into in the Ordinary Course of Business, (D) inter-company Indebtedness, (E) Indebtedness incurred to replace, renew, extend, refinance or refund any existing Indebtedness on terms no less favorable to the Company and its Subsidiaries than the terms of such existing Indebtedness, and (F) equipment financing and similar arrangements permitted under the Company’s or any of its Subsidiaries’ existing credit facilities as in effect on the date of this Agreement and entered into in the Ordinary Course of Business, or make any loans, advances or capital contributions to, or investments in, any Person other than the Company or any of its Subsidiaries and other than (1) reimbursements or advancements of employee or director expenses in the Ordinary Course of Business and (2) transactions required to be entered into by the Company or any of its Subsidiaries pursuant to existing Contracts; (v) make any material change in accounting or financial reporting methods, principles or practices used by the Company or any of its Subsidiaries, except to the extent required by GAAP, any other applicable generally accepted accounting principles or Applicable Law; (vi) (A) adopt any plan that would be a Benefit Plan if it had been in existence on the date of this Agreement, (B) materially amend any Benefit Plan or (C) other than in the Ordinary Course of Business, pay any bonus, remuneration or noncash benefits, except pursuant to any Benefit Plan or Collective Bargaining Agreement; (vii) other than in the Ordinary Course of Business, grant or pay any severance or termination pay or benefits (or increase any severance or termination benefit obligations) except for any payments required under the terms of any Benefit Plans listed on Section 5.13(a) of the Company Disclosure Letter, any Collective Bargaining Agreement or Applicable Law; (viii) increase the compensation or benefits of any directors, officers, employees, or in respect of consideration for personal services rendered, independent contractors, independent sales personnel or distributors, except as required by any Collective Bargaining Agreement, Applicable Law or in the Ordinary Course of Business; (ix) enter into, adopt, amend or terminate any Collective Bargaining Agreement, except as required by Applicable Law; (x) (A) make or change any material Tax election, (B) change any material annual Tax accounting period or method of accounting, (C) file any amended Tax Return that is material, (D) enter into any material closing agreement as to Taxes, (E) settle any material Tax claim or assessment or (F) surrender any right to claim a Tax refund to the extent such refund is reflected as an asset on the Company Financial Statements as of the Balance Sheet Date, in each case, that would materially increase the Company’s or any of its Subsidiaries’ liability for Taxes in a taxable period or portion thereof beginning after the Closing Date and that is not in the Company shall be permitted to Ordinary Course of Business or required by Applicable Law; (xi) sell, lease, transfer pledge or dispose of to any Person, or permit the imposition of any Encumbrance (other than Permitted Encumbrances) on, any of its material properties, assets or lines of business, other than (A) the sale, lease, pledge or disposition or encumbrance of inventory, raw materials, equipment and supplies in the Ordinary Course of Business, (B) transactions for consideration not exceeding $5,000,000 in the aggregate, (C) transactions between or among the Company and wholly owned Subsidiaries of the Company or between or among wholly owned Subsidiaries of the Company and (D) any transactions required to be consummated by the Company or any Subsidiary of the Company pursuant to an existing Contract; (xii) adopt a plan of complete or partial liquidation or dissolution or otherwise dispose dissolve, wind-up or effect any restructuring or other reorganization; (xiii) other than in the Ordinary Course of Business, (A) modify, amend, fail to renew or terminate any Material Contract or Real Property Lease (other than the lapse or expiration of any sale of Conversion Offering Stock permitted under Section 5.01(eMaterial Contract or such Real Property Lease in accordance with the terms thereof) or (B) enter into any Contract that would have been a Material Contract if it had been entered into prior to the extent date of this Agreement or enter into any Real Property Lease (other than as a result of the lapse or expiration of a Real Property Lease); (xiv) make any capital expenditures, capital additions or capital improvements, other than such expenditures, additions or improvements made in the Ordinary Course of Business or not in excess of $5,000,000 in the aggregate; (xv) materially delay the payment of any account payable or Taxes beyond the date when such account payable or Taxes would have been paid in the Ordinary Course of Business; (xvi) materially accelerate the collection of any account or note receivable in advance of the date when such account or note would have been collected in the Ordinary Course of Business; (xvii) settle, compromise, waive or terminate any Proceeding, other than in the Ordinary Course of Business or in the case where the sole obligation of Company and its Subsidiaries is the payment of money in an amount not in excess of $2,500,000 individually or $5,000,000 in the aggregate; (xviii) enter into any new line of business that is material to the aggregate sale price Company and its Subsidiaries other than in the Ordinary Course of all Business; (xix) (A) modify or amend any Affiliate Agreement, (B) enter into any new Affiliate Agreement, or (C) enter into any other business relationship with any Affiliate (other than the Company or any of its Subsidiaries or in connection with an Affiliate Agreement existing as of the date of this Agreement in accordance with its terms); (xx) cancel, terminate, fail to keep in place or reduce the amount of any insurance coverage provided by existing insurance policies without obtaining substantially equivalent (in the aggregate) substitute insurance coverage, other than in the Ordinary Course of Business or if the Company, in its reasonable judgment, determines that such stock sold does cancellation, termination or failure to keep in place would not exceed $1,000,000result in the Company and its Subsidiaries having inadequate coverage, including after giving effect to any insured self-retention or co- insurance feature; (xxi) pay any management or similar fees to any Sponsor or any of their Affiliates, except pursuant to the Contracts set forth on Section 7.1(b)(xxi) of the Company Disclosure Letter; (xxii) take any action that is reasonably likely to prevent or materially delay or materially impair the consummation of the Merger or any of the other transactions contemplated by this Agreement; or (xxiii) agree or commit to take any of the foregoing actions. Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of the Company or any of its Subsidiaries prior to the Closing. Prior to the Closing, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of their respective operations.

Conduct of Business by the Company Pending the Closing. During the period from (a) The Company agrees that, between the date hereof to of this Agreement and the Closing Date or the Company will and will cause each earlier termination of its Subsidiaries this Agreement, except as (i) to expressly contemplated by any other provision of this Agreement, (ii) set forth in Section 4.7(a) of the Company Disclosure Schedule, or (iii) required by applicable Law (including (x) as may be requested or compelled by any Governmental Authority and (y) COVID-19 Measures), unless Purchaser shall otherwise consent in writing (which consent shall not be unreasonably conditioned, withheld or delayed): (i) the Company shall conduct its operations and its Subsidiaries’ business in the ordinary course of business and in a manner consistent with past practice and practice; and (ii) the Company shall use its commercially reasonable efforts to preserve substantially intact the current business organization of the Company and its Subsidiaries, to keep available the services of the current officers, key employees and consultants of the Company and its Subsidiaries and to preserve intact its the current business organizations, keep available relationships and ongoing relationships of the service of Company and its current officers and employees and preserve its relationships Subsidiaries with customers, suppliers, joint venture partners, distributors, lessors, creditors, vendorslandlords and other business relations of the Company and its Subsidiaries. (b) By way of amplification and not limitation, contractors except (i) as expressly contemplated by any other provision of this Agreement, (ii) as set forth in Section 4.7(b) of the Company Disclosure Schedule, or (iii) as required by applicable Law (including (x) as may be requested or compelled by any Governmental Authority and others having business dealings with it with (y) COVID-19 Measures), the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will shall cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision or the earlier termination of this Agreement, unless directly or indirectly, do any of the following without the prior written consent of Purchaser (which consent shall otherwise consent in writing:not be unreasonably conditioned, withheld or delayed): (a) take any action which would (i) be reasonably likely to result in amend or otherwise change the circumstances described in clauses (i) through (xx) of Section 3.07(a) Company Organizational Documents or equivalent organizational documents; (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaserform or create any Subsidiaries; (biii) take issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (x) any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take shares of any class of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities capital stock of the Company or its Subsidiaries, or any Company Subsidiaryoptions, warrants, convertible securities or other than rights of any kind to acquire any shares of such capital stock, or any other ownership interest (i) issuances of Common Stock upon the exercise of stock options outstanding as including, without limitation, any phantom interest), of the date hereofCompany or its Subsidiaries, issuances of stock options or (y) except in the ordinary course of business and in a manner consistent with past practice pursuant to stock option plans and employee benefit schemes existing as practice, any material assets of the date hereof and issuances Company or its Subsidiaries; (iv) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of Common Stock its capital stock or other equity interests, including, but not limited to, any distribution or dividend derived from the funds paid by Purchaser to the Company for the purchase of the First Tranche Shares; (v) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, other than redemptions of equity securities from former employees upon exercise the terms set forth in the underlying agreements governing such equity securities or other equity interests; (vi) (x) acquire (including, without limitation, by merger, consolidation, or acquisition of such stock options and or assets or any other business combination) any corporation, partnership, other business organization or any division thereof in an amount in excess of $250,000; or (iiy) issuances incur any indebtedness for borrowed money in excess of Common Stock on conversion $250,000 or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Series A Preferred Stock person, or Convertible Debentures outstanding make any loans or advances, or intentionally grant any security interest in any of its assets; (vii) (w) grant any increase in the compensation or benefits payable or to become payable to any current or former director, officer, employee or consultant of the Company or its Subsidiaries, other than increases in base compensation to employees or other individual service providers whose base compensation would not exceed, on an annualized basis, $200,000 or immaterial benefit increases on account of annual renewals of the Company’s or its Subsidiaries’ health and welfare programs, (x) amend any existing Service Agreement with, or terminate or enter into any severance or termination agreement with, or grant any change of control or retention payments or benefits to, in each case, any current or former director, officer, employee or consultant whose base compensation would exceed, on an annualized basis, $200,000, (y) take any action that will result in the acceleration of vesting or payment timing or requirement for funding of any compensation or benefits to any current or former director, officer, employee or consultant of the Company or its Subsidiaries, or (z) hire or otherwise enter into any new Service Agreement or similar arrangement with any person whose base compensation would exceed, on an annualized basis, $200,000; (viii) institute a layoff resulting in a mass layoff within the meaning of the WARN Act or any similar state Law; (ix) voluntarily recognize a labor union or similar organization or enter into a collective bargaining agreement or other labor union contract; (x) other than as required by Law, grant any severance or termination pay to, any director, officer, or other employee of the Company; (xi) adopt, amend and/or terminate any Employee Plan (or any arrangement that would be considered an Employee Plan if in effect on the date hereof) except (x) as may be required by applicable Law or (y) in the event of annual renewals of health and welfare programs in the ordinary course and consistent with past practice; (xii) except in the ordinary course of business, make any material tax election, amend any income Tax Return or other material Tax Return or settle or compromise any material United States federal, state, local or non-United States income tax liability, in each case, that would reasonably be expected to have an adverse impact on the Company or its Subsidiaries or the Transactions; (xiii) materially amend, or modify or consent to the termination (excluding any expiration in accordance with its terms) of any Material Contract or amend, waive, modify or consent to the termination (excluding any expiration in accordance with its terms) of the Company’s material rights thereunder, in each case in a manner that is adverse to the Company and its Subsidiaries, taken as a whole; (xiv) (x) other than statutory expirations for any registered Company Owned IP and Company Licensed IP (“Company IP”) cause any material item of Company IP to lapse or to be abandoned, invalidated, dedicated to the public, or disclaimed, or otherwise become unenforceable or fail to perform or make any applicable filings, recordings or other similar actions or filings, (y) fail to pay all required fees and Taxes required or advisable to maintain and protect its interest in any material Company IP or (z) sell, assign, license or sublicense (other than nonexclusive licenses and sublicenses of Company IP granted in the ordinary course of business) any material item of Company IP; (xv) acquire any fee interest in real property; (xvi) modify any privacy policy or the operation or security of any Business Systems in any manner that is materially adverse to the business of the Company, except as required by Privacy/Data Security Laws; (xvii) waive, release, compromise, settle or satisfy any pending or threatened material claim or compromise or settle any liability, other than in the ordinary course of business or that do not exceed $250,000 in the aggregate; (xviii) enter into any material new line of business outside of the business currently conducted by the Company or its Subsidiaries; or (exix) acquire enter into any agreement or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with otherwise make a Conversion Offering binding commitment to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and do any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During (a) Each of the period from Company, the Principals and the Principal Holdcos agrees that, between the date hereof to of this Agreement and the Closing Date Closing, except as required by applicable Law or as set forth in Section 6.01 of the Company will and will cause each of Disclosure Schedule, unless Purchaser shall otherwise provide its Subsidiaries prior written consent: (i) to conduct its operations the businesses of the Group Companies shall be conducted only in, and no Group Company shall take any action except in, a lawfully permitted manner in the ordinary course of business consistent with past practice (subject to each of the Company, the Principal and the Principal Holdcos acting in a prudent and professional manner taking into account the Group Companies’ cash flow and liquidity); (ii) the Company shall use its reasonable best efforts to preserve substantially intact its current the business organizationsorganization of the Group Companies, maintain in effect all Required Governmental Consents, keep available the service services of its the current officers officers, Key Employees, and employees key consultants and contractors of the Group Companies and preserve its the current material relationships and goodwill of the Group Companies with customersGovernmental Authorities, key customers and suppliers, distributors, lessors, creditors, vendors, contractors and others having any other persons with which any Group Company has material business dealings with it with relations; and (iii) (A) the intention that its goodwill and ongoing business of the Company shall be unimpaired at restricted to the Closing Date. The holding of shares or equity interest in the Rajax HK Subsidiary and the Xiaodu Cayman Company, (B) the business of the Rajax HK Subsidiary shall be restricted to the holding of shares or equity interest in the Rajax WFOE, (C) the business of the Xiaodu Cayman Company agrees that it shall not, directly be restricted to the holding of shares or indirectlyequity interest in the Xiaodu HK Company, and it (D) the business of the Xiaodu HK Company shall be restricted to the holding of shares or equity interest in the Xiaodu WFOE. (b) In furtherance and without limitation of Section 6.01(a), except as set forth in Section 6.01(b) of the Company Disclosure Schedule, or as required by applicable Law, the Company will cause each of its Subsidiaries not to, (and the Principals and the Principal Holdcos will ensure that no Group Company will) and will not permit any other Group Company to between the date of this Agreement and the Closing DateClosing, except as specifically contemplated by directly or indirectly, do, or propose to do, any other provision of this Agreement, unless the Purchaser shall otherwise following without the prior written consent in writingof Purchaser: (a) take any action which would (i) be reasonably likely to result in amend or otherwise change the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities Charter Documents of the Company or make any material amendments to the Charter Documents of any other Group Company; (ii) issue, sell, transfer, lease, sublease, license, pledge, dispose of, grant or encumber, or authorize the issuance, sale, transfer, lease, sublease, license, pledge, disposition, grant or encumbrance of, (A) any shares of any class of any Group Company, or any options, warrants, convertible securities or other rights of any kind (including any Company SubsidiaryShare Award) to acquire any shares, or any other ownership interest (including, without limitation, any phantom interest), of any Group Company (other than in connection with the exercise or settlement of any Company Share Awards outstanding on the date hereof in accordance with the applicable ESOP or RSU tranche and applicable award agreement), or (B) any material property or assets (whether real, personal or mixed, and including leasehold interests, intangible property and Intellectual Property) of the Group Companies (other than sale of such property or assets, in each case, in the ordinary course of business and consistent with past practice); (iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, shares, property or otherwise, with respect to any of its shares, other than dividends or other distributions from any Group Company to the Company or another Group Company which is wholly-owned by the Company; (iiv) issuances reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of Common Stock upon its shares, or any options, warrants, convertible securities or other rights exchangeable into or convertible or exercisable for any of its share capital, in each case other than in connection with the exercise settlement of any Company Share Awards in accordance with the applicable ESOP or RSU tranche and this Agreement; (v) (A) effect or commence any liquidation, dissolution, scheme of arrangement, merger, consolidation, amalgamation, recapitalization, restructuring, reorganization or similar transaction involving any Group Company (other than the Transactions or any merger or consolidation among wholly-owned Subsidiaries of the Company), or (B) create any new Subsidiaries; (vi) (A) acquire (including, without limitation, by merger, consolidation, scheme of arrangement, amalgamation or acquisition of stock options outstanding as or assets or any other business combination) or make any capital contribution or investment in any corporation, partnership, other business organization or any division thereof (other than a wholly-owned Subsidiary of the date hereofCompany), issuances of stock options or (B) acquire any assets (other than (x) in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as or (y) assets of a wholly-owned Subsidiary of the date hereof and issuances Company); (vii) (A) incur, assume, alter, amend or modify any Indebtedness, guarantee any Indebtedness, or issue any debt securities, in each case, in excess of Common Stock upon exercise US$200,000 individually or US$1,000,000 in the aggregate, or (B) make (x) any loans or advances to any director or executive officer of such stock options the Company or (y) any loans or advances in excess of US$50,000 individually or US$1,000,000 in the aggregate to any other person, in each case, other than (i) Indebtedness receivable or payable solely between or among the Group Companies and (ii) issuances Indebtedness incurred in the ordinary course of Common Stock business of the relevant Group Company, provided that such Indebtedness incurred in the ordinary course of business of all of the Group Companies does not exceed US$5,000,000 in the aggregate; (viii) create or grant any Lien on conversion any material assets (including material Intellectual Property) of any Series A Preferred Stock Group Company other than in the ordinary course of business consistent with past practice; (ix) (A) authorize, or Convertible Debentures outstanding as of make any commitment with respect to, any single capital expenditure committed by any Group Company after the date hereof; or of this Agreement which is in excess of US$500,000, unless included in the Company’s current budget and operating plan approved by the Board of Director, or (eB) acquire authorize or subscribe make any commitment with respect to capital expenditures committed by any Group Company after the date of this Agreement which are, in the aggregate (including capital expenditures included in the Company’s budget and operating plan), in excess of US$500,000 for shares or securities in any company or acquire any business or invest in any joint venturethe Group Companies taken as a whole, in each case other than acquisitions ordinary course expenditures necessary to maintain existing assets in good repair; or (x) guarantee the performance or subscriptions for shares or securities other obligations of any person (other than guarantees in connection with a Conversion Offering any Indebtedness as permitted by the foregoing clause (vii)); (xi) except as otherwise required by Law or pursuant to any Benefit Plan in existence as of the date hereof, (A) enter into any new employment or compensatory agreements in connection with employment or service (including the renewal of any such agreements), or terminate or amend any such agreements, with any director or officer of any Group Company or any other employee or individual service provider of any Group Company who has an annual base salary in excess of US$100,000, (B) grant or provide any severance or termination payments or benefits to any director, officer, employee or individual service provider of any Group Company other than pursuant to any agreement executed prior to the extent that the aggregate price date hereof which is listed in Section 3.18(b) of all such acquisitions or subscriptions by the Company and Disclosure Schedule, (C) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price bonus to, or grant, issue or make any new equity awards to any director, officer, employee or individual service provider of any acquisition Group Company, except annual base salary increases to non-officer employees of any Group Company made in the ordinary course consistent with past practice, (D) establish, adopt, amend or subscription terminate any Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and or amend the Closing Date terms of any outstanding Company Share Awards, save as contemplated under this Agreement or the Company shall be permitted Deferred Payment Agreements, (E) take any action to sell, lease, transfer accelerate or otherwise dispose alter the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under the Benefit Plans, to the extent not already required in any such plan, including voluntarily accelerating the vesting of any sale Company Share Award in connection with the Transactions, save as contemplated under this Agreement or the Deferred Payment Agreements, or (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any 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 applicable Law; (xii) make any material changes with respect to any method of Conversion Offering Stock financial accounting, or financial accounting policies or procedures, except as required by changes in applicable Law; (xiii) enter into, or materially amend or modify, or consent to the termination of any Material Contract (or any Contract that would be a Material Contract if such Contract had been entered into prior to the date hereof), or amend, waive, modify or consent to the termination of any Group Company’s material rights thereunder, in each case, other than such actions taken in the ordinary course of business of the relevant Group Company with respect to the categories of Material Contract set forth in items (h) and (j) of the definition of “Material Contracts”; (xiv) enter into any Contract between any of the Group Companies, on the one hand, and any of their respective directors or officers, on the other hand (except as permitted under Section 5.01(e6.01(b)(xi) or otherwise as contemplated under this Agreement or the Deferred Payment Agreements); (xv) terminate or cancel, let lapse, or amend or modify in any material respect, other than renewals in the ordinary course of business, any material insurance policies maintained by it which is not promptly replaced by a comparable amount of insurance coverage with reputable independent insurance companies or underwriters; (xvi) commence any material Action (other than in respect of collection of amounts owed in the ordinary course of business) or settle any Action other than any settlement involving only the payment of monetary damages not in excess of US$500,000 not relating to this Agreement or the Transactions; (xvii) engage in the conduct of any new line of business material to the extent Group Companies, taken as a whole; (xviii) permit any item of material Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, other than (i) with respect to such Intellectual Property that is no longer used or useful in any of the aggregate sale price Group Companies’ businesses and (ii) as required pursuant to Contracts in effect prior to the date hereof which have been provided or otherwise made available to the Purchaser Parties, fail to perform or make any applicable filings, recordings or other similar actions or filings with respect to material Intellectual Property, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in material Intellectual Property; (xix) make or change any material Tax election, amend any material Tax Return, enter into any material closing agreement with respect to Taxes, surrender any right to claim a material refund of all Taxes, settle or finally resolve any material controversy with respect to Taxes, consent to any extension or waiver of the statute of limitations applicable to any Tax claim or assessment relating to the Group Companies, or change any method of Tax accounting; (xx) make any material changes with respect to key operational strategies of any Group Company, including any material changes to such stock sold does not exceed $1,000,000Group Company’s strategy on provision of subsidies and policies regarding such Group Company’s merchants; (xxi) dismiss or give notice of dismissal to, more than fifty (50) employees of the Group in the aggregate; or (xxii) authorize or agree to take any of the foregoing actions, or enter into any letter of intent (binding or nonbinding) or similar written agreement or arrangement with respect to any of the foregoing.

Conduct of Business by the Company Pending the Closing. During (a) Each of the period from Company, the Principals and the Principal Holdcos agrees that, between the date hereof to of this Agreement and the Closing Date Closing, except as required by applicable Law or as set forth in Section 6.01 of the Company will and will cause each of Disclosure Schedule, unless Purchaser shall otherwise provide its Subsidiaries prior written consent: (i) to conduct its operations the businesses of the Group Companies shall be conducted only in, and no Group Company shall take any action except in, a lawfully permitted manner in the ordinary course of business consistent with past practice (subject to each of the Company, the Principal and the Principal Holdcos acting in a prudent and professional manner taking into account the Group Companies’ cash flow and liquidity); (ii) the Company shall use its reasonable best efforts to preserve substantially intact its current the business organizationsorganization of the Group Companies, maintain in effect all Required Governmental Consents, keep available the service services of its the current officers officers, Key Employees, and employees key consultants and contractors of the Group Companies and preserve its the current material relationships and goodwill of the Group Companies with customersGovernmental Authorities, key customers and suppliers, distributors, lessors, creditors, vendors, contractors and others having any other persons with which any Group Company has material business dealings with it with relations; and (iii) (A) the intention that its goodwill and ongoing business of the Company shall be unimpaired at restricted to the Closing Date. The holding of shares or equity interest in the Rajax HK Subsidiary and the Xiaodu Cayman Company, (B) the business of the Rajax HK Subsidiary shall be restricted to the holding of shares or equity interest in the Rajax WFOE, (C) the business of the Xiaodu Cayman Company agrees that it shall not, directly be restricted to the holding of shares or indirectlyequity interest in the Xiaodu HK Company, and it (D) the business of the Xiaodu HK Company shall be restricted to the holding of shares or equity interest in the Xiaodu WFOE. (b) In furtherance and without limitation of Section 6.01(a), except as set forth in Section 6.01(b) of the Company Disclosure Schedule, or as required by applicable Law, the Company will cause each of its Subsidiaries not to, (and the Principals and the Principal Holdcos will ensure that no Group Company will) and will not permit any other Group Company to between the date of this Agreement and the Closing DateClosing, except as specifically contemplated by directly or indirectly, do, or propose to do, any other provision of this Agreement, unless the Purchaser shall otherwise following without the prior written consent in writingof Purchaser: (a) take any action which would (i) be reasonably likely to result in amend or otherwise change the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities Charter Documents of the Company or make any material amendments to the Charter Documents of any other Group Company; (ii) issue, sell, transfer, lease, sublease, license, pledge, dispose of, grant or encumber, or authorize the issuance, sale, transfer, lease, sublease, license, pledge, disposition, grant or encumbrance of, (A) any shares of any class of any Group Company, or any options, warrants, convertible securities or other rights of any kind (including any Company SubsidiaryShare Award) to acquire any shares, or any other ownership interest (including, without limitation, any phantom interest), of any Group Company (other than in connection with the exercise or settlement of any Company Share Awards outstanding on the date hereof in accordance with the applicable ESOP or RSU tranche and applicable award agreement), or (B) any material property or assets (whether real, personal or mixed, and including leasehold interests, intangible property and Intellectual Property) of the Group Companies (other than sale of such property or assets, in each case, in the ordinary course of business and consistent with past practice); (iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, shares, property or otherwise, with respect to any of its shares, other than dividends or other distributions from any Group Company to the Company or another Group Company which is wholly-owned by the Company; (iiv) issuances reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of Common Stock upon its shares, or any options, warrants, convertible securities or other rights exchangeable into or convertible or exercisable for any of its share capital, in each case other than in connection with the exercise settlement of any Company Share Awards in accordance with the applicable ESOP or RSU tranche and this Agreement; (A) effect or commence any liquidation, dissolution, scheme of arrangement, merger, consolidation, amalgamation, recapitalization, restructuring, reorganization or similar transaction involving any Group Company (other than the Transactions or any merger or consolidation among wholly-owned Subsidiaries of the Company), or (B) create any new Subsidiaries; (vi) (A) acquire (including, without limitation, by merger, consolidation, scheme of arrangement, amalgamation or acquisition of stock options outstanding as or assets or any other business combination) or make any capital contribution or investment in any corporation, partnership, other business organization or any division thereof (other than a wholly-owned Subsidiary of the date hereofCompany), issuances of stock options or (B) acquire any assets (other than (x) in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as or (y) assets of a wholly-owned Subsidiary of the date hereof and issuances Company); (vii) (A) incur, assume, alter, amend or modify any Indebtedness, guarantee any Indebtedness, or issue any debt securities, in each case, in excess of Common Stock upon exercise US$200,000 individually or US$1,000,000 in the aggregate, or (B) make (x) any loans or advances to any director or executive officer of such stock options the Company or (y) any loans or advances in excess of US$50,000 individually or US$1,000,000 in the aggregate to any other person, in each case, other than (i) Indebtedness receivable or payable solely between or among the Group Companies and (ii) issuances Indebtedness incurred in the ordinary course of Common Stock business of the relevant Group Company, provided that such Indebtedness incurred in the ordinary course of business of all of the Group Companies does not exceed US$5,000,000 in the aggregate; (viii) create or grant any Lien on conversion any material assets (including material Intellectual Property) of any Series A Preferred Stock Group Company other than in the ordinary course of business consistent with past practice; (ix) (A) authorize, or Convertible Debentures outstanding as of make any commitment with respect to, any single capital expenditure committed by any Group Company after the date hereof; or of this Agreement which is in excess of US$500,000, unless included in the Company’s current budget and operating plan approved by the Board of Director, or (eB) acquire authorize or subscribe make any commitment with respect to capital expenditures committed by any Group Company after the date of this Agreement which are, in the aggregate (including capital expenditures included in the Company’s budget and operating plan), in excess of US$500,000 for shares or securities in any company or acquire any business or invest in any joint venturethe Group Companies taken as a whole, in each case other than acquisitions ordinary course expenditures necessary to maintain existing assets in good repair; or (x) guarantee the performance or subscriptions for shares or securities other obligations of any person (other than guarantees in connection with a Conversion Offering any Indebtedness as permitted by the foregoing clause (vii)); (xi) except as otherwise required by Law or pursuant to any Benefit Plan in existence as of the date hereof, (A) enter into any new employment or compensatory agreements in connection with employment or service (including the renewal of any such agreements), or terminate or amend any such agreements, with any director or officer of any Group Company or any other employee or individual service provider of any Group Company who has an annual base salary in excess of US$100,000, (B) grant or provide any severance or termination payments or benefits to any director, officer, employee or individual service provider of any Group Company other than pursuant to any agreement executed prior to the extent that the aggregate price date hereof which is listed in Section 3.18(b) of all such acquisitions or subscriptions by the Company and Disclosure Schedule, (C) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price bonus to, or grant, issue or make any new equity awards to any director, officer, employee or individual service provider of any acquisition Group Company, except annual base salary increases to non-officer employees of any Group Company made in the ordinary course consistent with past practice, (D) establish, adopt, amend or subscription terminate any Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and or amend the Closing Date terms of any outstanding Company Share Awards, save as contemplated under this Agreement or the Company shall be permitted Deferred Payment Agreements, (E) take any action to sell, lease, transfer accelerate or otherwise dispose alter the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under the Benefit Plans, to the extent not already required in any such plan, including voluntarily accelerating the vesting of any sale Company Share Award in connection with the Transactions, save as contemplated under this Agreement or the Deferred Payment Agreements, or (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any 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 applicable Law; (xii) make any material changes with respect to any method of Conversion Offering Stock financial accounting, or financial accounting policies or procedures, except as required by changes in applicable Law; (xiii) enter into, or materially amend or modify, or consent to the termination of any Material Contract (or any Contract that would be a Material Contract if such Contract had been entered into prior to the date hereof), or amend, waive, modify or consent to the termination of any Group Company’s material rights thereunder, in each case, other than such actions taken in the ordinary course of business of the relevant Group Company with respect to the categories of Material Contract set forth in items (h) and (j) of the definition of “Material Contracts”; (xiv) enter into any Contract between any of the Group Companies, on the one hand, and any of their respective directors or officers, on the other hand (except as permitted under Section 5.01(e6.01(b)(xi) or otherwise as contemplated under this Agreement or the Deferred Payment Agreements); (xv) terminate or cancel, let lapse, or amend or modify in any material respect, other than renewals in the ordinary course of business, any material insurance policies maintained by it which is not promptly replaced by a comparable amount of insurance coverage with reputable independent insurance companies or underwriters; (xvi) commence any material Action (other than in respect of collection of amounts owed in the ordinary course of business) or settle any Action other than any settlement involving only the payment of monetary damages not in excess of US$500,000 not relating to this Agreement or the Transactions; (xvii) engage in the conduct of any new line of business material to the extent Group Companies, taken as a whole; (xviii) permit any item of material Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, other than (i) with respect to such Intellectual Property that is no longer used or useful in any of the aggregate sale price Group Companies’ businesses and (ii) as required pursuant to Contracts in effect prior to the date hereof which have been provided or otherwise made available to the Purchaser Parties, fail to perform or make any applicable filings, recordings or other similar actions or filings with respect to material Intellectual Property, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in material Intellectual Property; (xix) make or change any material Tax election, amend any material Tax Return, enter into any material closing agreement with respect to Taxes, surrender any right to claim a material refund of all Taxes, settle or finally resolve any material controversy with respect to Taxes, consent to any extension or waiver of the statute of limitations applicable to any Tax claim or assessment relating to the Group Companies, or change any method of Tax accounting; (xx) make any material changes with respect to key operational strategies of any Group Company, including any material changes to such stock sold does not exceed $1,000,000Group Company’s strategy on provision of subsidies and policies regarding such Group Company’s merchants; (xxi) dismiss or give notice of dismissal to, more than fifty (50) employees of the Group in the aggregate; or (xxii) authorize or agree to take any of the foregoing actions, or enter into any letter of intent (binding or nonbinding) or similar written agreement or arrangement with respect to any of the foregoing.

Conduct of Business by the Company Pending the Closing. During Except as set forth in the period Company Disclosure Schedule or as otherwise expressly contemplated hereby, without the prior written consent of Parent, from the date hereof to until the Closing Date Appointment Time, the Company will shall, and will shall cause each of Company Subsidiary to, conduct its Subsidiaries business in all material respects in the ordinary course consistent with past practice, and shall (i) use all commercially reasonable efforts to conduct preserve intact its operations present business organization and assets, (ii) maintain in effect all material Permits that are required for the Company or such Company Subsidiary to carry on its business, (iii) use all commercially reasonable efforts to keep available the services of its present officers, key employees and independent contractors, (iv) use all commercially reasonable efforts to preserve existing relationships with its material customers, lenders, suppliers and other Persons having material business relationships with it, (v) use all commercially reasonable efforts to maintain and keep its properties in as good repair and condition as at present, ordinary wear and tear excepted, (vi) use all commercially reasonable efforts to keep in full force and effect insurance and bonds comparable in amount and scope of coverage to that now maintained by it; provided, however, that Company shall not renew existing insurance policies and/or, except as contemplated in Section 5.14(b), purchase new insurance policies for directors’ and officers’ liabilities at an aggregate annual premium cost equal to or in excess of the current annual premiums paid by the Company on its existing policies, (vii) perform in all material respects all obligations required to be performed by it under all material contracts, leases and documents relating to or affecting its assets, properties and business, (viii) comply with and perform in all material respects all obligations and duties imposed on it by all applicable Laws, and (ix) not take any action or fail to take any action which individually or in the aggregate would be reasonably likely to have a Company Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth in the Company Disclosure Schedule or as otherwise expressly contemplated by this Agreement, from the date hereof until the Appointment Time, without the prior written consent of Parent, the Company shall not, nor shall it permit any Company Subsidiary, directly or indirectly, to: (a) amend the Company Organizational Documents or the Organizational Documents of any Company Subsidiary; (i) split, combine or reclassify any of its Equity Interests or amend the terms of any rights, warrants or options to acquire its securities, (ii) except for ordinary course dividends payable by a Company Subsidiary to the Company or another Company Subsidiary, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its Equity Interests or otherwise make any payments to holders of such Equity Interests in their capacities as such, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its Equity Interests, other securities or any rights, warrants or options to acquire its securities; (c) issue, deliver, award, sell, grant, pledge, encumber or transfer or authorize or propose the issuance, delivery, award, sale, grant, pledge, encumbrance or transfer of, any Equity Interests of the Company or any Company Subsidiary or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any Equity Interests of the Company or any Company Subsidiary, other than in connection with directors’ qualifying shares or the issuance of Company Common Stock pursuant to the exercise of Company Options granted prior to the date hereof; (d) acquire, directly or indirectly (whether pursuant to merger, stock or asset purchase, joint venture or otherwise), in one transaction or series of related transactions, any Person, any Equity Interests or other securities of any Person, any division or business of any Person or all or substantially all of the assets of any Person; (e) sell, assign, transfer, pledge, mortgage, lease, encumber or otherwise dispose of, or permit any material encumbrances to exist with respect to, any assets or other rights, other than sales of (i) immaterial assets in the ordinary course of business consistent with past practice and (ii) to preserve intact its current obsolete equipment and property no longer used in the operation of the business organizations, keep available of the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing:Company Subsidiary; (a) take any action which would (i) (A) incur any indebtedness for borrowed money (capital leases shall be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming treated as indebtedness for borrowed money for purposes of this clause paragraph (ii) that f)), except borrowings under the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights terms of the Purchaser; Credit Agreement to fund working capital in the ordinary course consistent with past practice, (bB) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity debt securities or securities exercisable warrants or convertible into equity other rights to acquire any debt securities of the Company or any Company Subsidiary, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than to the Company or any wholly owned Company Subsidiary, or (iD) issuances assume, guarantee or endorse, or otherwise become responsible for, the obligations of Common Stock upon the exercise of stock options outstanding as any Person (other than obligations of the date hereof, issuances Company or any wholly owned Company Subsidiary and the endorsements of stock options negotiable instruments for collection in the ordinary course of business consistent with past practice pursuant practice), (E) enter into any “keep well” or other contract, agreement or arrangement to stock option plans and employee benefit schemes existing as maintain any financial statement condition of another Person (other than the Company or any wholly owned Company Subsidiary), or (ii) enter into or materially amend any contract, agreement, commitment or arrangements to effect any of the transactions prohibited by this paragraph (f); (i) enter into any contract, agreement or arrangement that if entered into prior to the date hereof and issuances of Common Stock upon exercise of such stock options and would be a Material Contract, (ii) issuances amend or modify in any material respect or terminate any Material Contract or (iii) otherwise waive, release or assign any material rights, claims or benefits of Common Stock the Company or any Company Subsidiary under any Material Contract; (i) increase the number of Company Employees based on conversion the number of any Series A Preferred Stock or Convertible Debentures outstanding Company Employees employed as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions with respect to employees hired in the ordinary course of business, (ii) enter into an employment agreement with, or subscriptions for shares otherwise agree to provide compensation to, any Person with targeted annual cash compensation in excess of $500,000 (other than with respect to employees hired pursuant to offers of employment outstanding on the date hereof or securities with respect to newly hired employees filling positions that are reasonably and in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions good faith deemed by the Company and to be essential, but in no event, in the aggregate to exceed two people); (i) change any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price Company’s methods of any acquisition accounting in effect at December 28, 2008, except as required by changes in GAAP or subscription of such further shares or securities within 30 days by Regulation S-X of the relevant Conversion Offering purchased solely using Exchange Act, as concurred in by its independent registered public accounting firm and disclosed in writing to Parent; (i) settle, pay, compromise or discharge, any Claim that is material to the proceeds business, financial condition or results of sale operations of the same class Company and the Company Subsidiaries, taken as a whole or (ii) settle, pay, compromise or discharge any Claim against the Company or any Company Subsidiary with respect to or arising out of shares the transactions contemplated by this Agreement; (k) other than as set forth in the Company Disclosure Schedule, (i) make any material Tax election or securities acquired take any position on any Company Return filed on or subscribed in such Conversion Offering); provided, however, that between after the date of this Agreement or adopt any method therein that is inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods, (ii) enter into any settlement or compromise of any material Tax liability, (iii) file any amended Company Return with respect to any material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax or (vi) surrender any right to claim a material Tax refund; (l) 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 Offer and the Closing Date Merger and the Company shall be permitted to sell, lease, transfer or otherwise dispose transactions contemplated hereby); (m) willfully take any action that would result in a material breach of any sale provision of Conversion Offering Stock permitted under Section 5.01(ethis Agreement, take any action that would result in a breach of Annex II, or take any action that would result in a failure to satisfy the conditions precedent set forth in Annex I; or (n) authorize, agree or commit, orally or in writing, to do any of the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During the period from Seller covenants and agrees that, between the date hereof of this Agreement and the earlier to occur of the Closing Date and the termination of this Agreement pursuant to its terms, unless Buyer shall otherwise specifically consent in writing in advance (provided that such consent shall only be requested and provided if consistent with applicable Law and provided further that such consent shall not be unreasonably withheld, conditioned or delayed), or unless otherwise expressly provided for by this Agreement, Seller shall cause the Company will and will cause each of its Subsidiaries to (i) to conduct its operations business only in the ordinary course of business and in a manner consistent with past practice and (ii) conduct its business in compliance with all applicable Laws and Orders. Seller shall cause the Company to use its commercially reasonable efforts to (A) preserve intact the business organization and assets and Intellectual Property of the Company, (B) keep available the services of the Company’s present officers, employees, consultants, sales representatives, distributors and sales agents (other than terminations in the ordinary course of business consistent with past practice practice), (C) maintain in effect Material Contracts (other than those Material Contracts that expire in accordance with their terms or terminations expressly provided for by this Agreement), and (iiD) to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its Company’s present relationships with advertisers, publishers, sponsors, customers, licensees, suppliers, distributorssales representatives, lessorsdistributors and other Persons with which the Company has business relations. By way of amplification and not limitation, creditors, vendors, contractors and others having business dealings with it with Seller shall cause the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall to not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the earlier to occur of the Closing Date, except as specifically contemplated by any other provision and the termination of this AgreementAgreement pursuant to its terms, directly or indirectly do, or propose to do, any of the following without the prior written consent of Buyer (provided that such consent shall only be requested and provided if consistent with applicable Law and provided further that such consent shall not be unreasonably withheld, conditioned or delayed), unless otherwise expressly provided for by this Agreement or otherwise expressly set forth in Section 6.1 of the Purchaser shall otherwise consent in writingSeller Disclosure Schedule: (a) take amend or otherwise change the Charter or Bylaws or alter through merger, liquidation, reorganization, reclassification, recapitalization, restructuring or in any action which would (i) be reasonably likely to result in other fashion the circumstances described in clauses (i) through (xx) of Section 3.07(a) corporate structure or (ii) affect the rights capital structure or ownership of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the PurchaserCompany; (b) take (i) issue, grant, sell, transfer, deliver, pledge, promise, dispose of or encumber, or authorize the issuance, grant, sale, transfer, deliverance, pledge, promise, disposition or encumbrance of, or alter or modify the terms of rights or obligations under any action shares of capital stock of any class or series (common or preferred) or securities or other instruments (including notes or other evidences of Indebtedness) convertible into, or subscription rights, options or warrants to cause acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible instruments or securities or any other ownership interest or stock-based rights of the Company's representations and warranties set forth in Article III to be untrue, (ii) adopt, ratify or effectuate a stockholders’ rights plan or agreement or similar plan or Contract, or (iii) redeem, purchase or otherwise acquire, directly or indirectly, any of the capital stock of the Company; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options other than cash dividends or other cash distributions to Seller in the ordinary course of business consistent with past practice pursuant to practice, declare, set aside or pay any dividend or other distribution (whether in cash, stock option plans and employee benefit schemes existing as or property or any combination thereof) in respect of the date hereof and issuances any of Common Stock upon exercise of such stock options and its capital stock, (ii) issuances split, combine or reclassify any of Common Stock on conversion its capital stock, (iii) effect a recapitalization; issue or authorize the issuance of any Series A Preferred Stock other securities in respect of, in lieu of or Convertible Debentures outstanding as in substitution for, shares of its capital stock, or (iv) amend the terms of, repurchase, redeem or otherwise acquire, directly or indirectly, any of its securities; (d) sell, transfer, assign, lease, sublease, license, sublicense, mortgage, pledge, encumber, impair or otherwise dispose of (in whole or in part), or create, incur, assume or cause to be subjected to any Lien on, any of the date hereof; orassets, properties or securities of the Company (including any Intellectual Property or accounts receivable), except for the sale of inventory in the ordinary course of business consistent with past practice; (e) (i) acquire (by merger, consolidation, acquisition of stock or subscribe for shares assets or securities in otherwise) or organize or form any company or acquire any business or invest in any corporation, limited liability company, partnership, association, joint venture, in each case trust or other entity or Person or any business organization or division thereof, or (ii) acquire any rights, assets or properties other than acquisitions in the ordinary course of business consistent with past practice; (f) (i) incur or subscriptions modify any Indebtedness or issue any debt securities or any warrants or rights to acquire any debt security, (ii) assume, guarantee or endorse or otherwise become responsible for, the obligations of any other Person, (iii) enter into any off-balance sheet financing arrangement or any accounts receivable or payable financing arrangement, or (iv) make any loans, advances or enter into any other financial commitments other than advances of reasonable expenses to employees in the ordinary course of business consistent with past practice; (g) authorize or make any capital expenditures outside of the ordinary course of business consistent with past practice, or in excess of $100,000; (i) increase, accelerate or provide for shares additional compensation or securities in connection with a Conversion Offering fringe benefits of, or grant, agree to grant, pay or otherwise make payable any incentive, bonus or similar compensation or rights, to any present or former director, officer, employee, consultant, sales representative, distributor or agent of the extent that the aggregate price Company, (ii) grant any severance, retention, continuation or termination pay to any present or former director, officer, employee, consultant, sales representative, distributor or agent of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days outside of the relevant Conversion Offering purchased solely using the proceeds ordinary course of sale business consistent with past practice, (iii) loan or advance any money or other property to any present or former director, officer, employee, consultant, sales representative, distributor or agent of the same class Company (except for advances of shares business expenses in the ordinary course of business consistent with past practice), (iv) establish, adopt, enter into, amend or securities acquired terminate any Employee Plan or subscribed any plan, agreement, program, policy, trust, fund or other arrangement that would be an Employee Plan if it were in such Conversion Offering); provided, however, that between existence as of the date of this Agreement and (except as may otherwise be required pursuant to Applicable Law), (v) terminate or lay off any executive or management employee or key employee (except for termination for “cause”), or (vi) grant any equity or equity-based awards or stock-based rights; (i) fail to give any notices or other information required to be given to the Closing Date employees of the Company, any collective bargaining unit representing any group of employees of the Company shall or any applicable Governmental Authority under the WARN Act, the National Labor Relations Act, the Code, COBRA, or other applicable Law in connection with the Contemplated Transactions; (j) hire or retain, or continue to retain or employ, any employee or consultant having access to confidential or proprietary information of the Company unless such employee or consultant enters into, or has entered into, a proprietary information and inventions agreement in the form customarily used by the Company or an agreement containing substantially similar and no less restrictive confidentiality and inventions assignment provisions, or amend or otherwise modify, or grant a waiver under, any such confidentiality or proprietary information agreement with any such Person; (k) change any accounting or cash management policies, procedures or practices used by the Company (including with respect to reserves, revenue recognition, timing for payments of accounts payable and collection of accounts receivable) unless required by a change in Law or GAAP; (l) (i) enter into any Contract that if entered into prior to the date hereof would be permitted to sella Material Contract other than in the ordinary course of business consistent with the past practices of the Company and not exceeding $50,000, lease(ii) modify, amend, extend or supplement in any material respect, transfer or terminate any Material Contract or waive, release or assign any rights or Claims thereto or thereunder other than in the ordinary course of business consistent with the past practices of the Company and not exceeding $50,000, (iii) enter into or extend any lease or sublease with respect to Real Property with any third party, (iv) modify, amend or transfer in any way or terminate any license agreement, standstill or confidentiality agreement with any third party, or waive, release or assign any rights or Claims thereto or thereunder, (v) enter into any agreement or arrangement that limits or otherwise dispose restricts or that could by its terms be reasonably expected to restrict the Company or its Affiliates or successors or that by its terms could, after the Effective Time, limit or restrict Buyer or any of its respective Subsidiaries or Affiliates or successors thereto, from engaging or competing in any line of business or in any geographic area, (vi) enter into or amend any agreement pursuant to which any other party is granted manufacturing, marketing or other development or distribution rights of any sale type or scope with respect to any Product or any of Conversion Offering Stock permitted under the Company’s technologies or (vii) enter into, modify, amend or supplement any Contract to provide exclusive rights or obligations or any non-competition or similar obligations or restrictions; (i) make or change any Tax election or change any method of tax accounting, (ii) settle or compromise any federal, state, local or foreign Tax liability, (iii) file any amended Tax Return, (iv) enter into any closing agreement relating to any Tax, (v) agree to an extension or waiver of any limitation period applicable to any claim or assessment in respect of Taxes, or (vi) surrender any right to claim a Tax refund; (n) enter into any operating leases; (o) except as required by Law, modify or change in any material respect any existing permit or operating license listed in Section 5.01(e4.7(c) of the Seller Disclosure Schedule; (p) pay, discharge, satisfy or settle any Claim or waive, assign or release any material rights or claims, except any Claim which settlement would not impose any injunctive or similar Order on the Company or restrict in any way the business of the Company, or exceed $50,000 in cost, liability or value to the Company; (q) commence, join, make an appeal with respect to or settle a lawsuit, action, Claim or similar proceeding other than (i) for the routine collection of bills, (ii) to enforce its rights with respect to Intellectual Property, (iii) in such cases where Seller in good faith determines that failure to commence suit would result in the extent material impairment of a valuable aspect of its business, provided, that Seller consults with Buyer prior to the aggregate sale price Company filing or taking of any action with respect to such lawsuit, action, Claim or similar proceeding, or (iv) pursuant to this Agreement; (r) engage in, enter into or modify or amend any Contract, transaction, Indebtedness, commitment or other arrangement with, directly or indirectly, any of the directors, officers, employees, consultants, agents, or other Affiliates of the Company, or any of their respective Affiliates or family members, other than offer letters and other standard documents, in the Company’s forms (and not providing any rights to severance or similar payments), which have been provided to Buyer, with any new employees or consultants hired or retained after the date of this Agreement; (s) fail to maintain in full force and effect all self-insurance and insurance, as the case may be, currently in effect, except that existing policies may be replaced by new or successor policies of substantially similar coverage and at a substantially similar cost; (t) commence any proceeding for any voluntary liquidation, dissolution, or winding up of the Company, including but not limited to initiating any bankruptcy proceedings on its behalf; (u) fill any orders for, or conduct any further business with, any third parties that are subject to a United States trade embargo; (v) take any action if such stock sold does not exceed $1,000,000action would or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; (w) fail to maintain in full force and effect all material permits, licenses, registrations, certificates, orders, clearances or approvals held by the Company; or (x) authorize any of the foregoing, or agree or enter into or amend any Contract or commitment to do any of the foregoing.

Conduct of Business by the Company Pending the Closing. During the period from Between the date hereof to of this Agreement and the Closing Date 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 will Disclosure Schedule or as otherwise expressly required or permitted by any other provision of this Agreement, or with the prior written consent of Parent, the Company will, and will cause each of its Subsidiaries to, (i) to conduct its operations only in the ordinary course of business in a manner consistent with past practice, (ii) use its reasonable best 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 and (iii) perform or comply with in all material respects all covenants and agreements required to be performed or complied with by them under the Brillion SPA. Without limiting the foregoing, except as set forth in Section 5.1 of the Company Disclosure Schedule or as otherwise expressly required or permitted by any other provision of this Agreement, 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, take any of the following actions without the prior written consent of Parent (not 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 and Company RSUs outstanding as of the date hereof in accordance with their terms; (c) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber any property or assets of the Company or any of its Subsidiaries (other than Intellectual Property), except (i) pursuant to the express terms of any Company Material Contract in effect as of the date hereof, (ii) the sale or disposition of property or assets with a fair market value not in excess of $1 million individually or $2 million in the aggregate, or (iii) the sale of inventory in the ordinary course of business consistent with past practice; (d) sell, assign, pledge, transfer, license, abandon, or otherwise dispose of any Company Owned Intellectual Property, except for non-exclusive licenses granted in the ordinary course of business; (e) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock or other 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; (f) reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other Equity Interests, except with respect to any wholly owned Subsidiary of the Company; (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) any Person (or any business line or division thereof) or assets, other than acquisitions of inventory, raw materials and other property in the ordinary course of business consistent with past practice; (i) incur any indebtedness for borrowed 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 for borrowings under the Company’s existing credit facilities or issuances of commercial paper for working capital and general corporate purposes in the ordinary course of business consistent with past practice; (j) make any loans, advances 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, in each case other than in the ordinary course of business consistent with past practice; (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 $2 million; (m) except to the extent required by (i) applicable Law, (ii) the existing terms of any Company Benefit Plan disclosed in Section 3.11(a) of the Company Disclosure Schedule or any Company Labor Agreement disclosed in Section 3.12(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 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 in the ordinary course of business consistent with past practice and in salaries or wages of employees (iiother than officers) to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any of its Subsidiaries); (B) amend any Company SubsidiaryBenefit Plan or Company Labor Agreement, or establish, adopt, or enter into any new such arrangement that if in effect on the date hereof would be a Company Benefit Plan or Company Labor Agreement; provided, that the Company and its Subsidiaries may renew or extend the terms of any Company Benefit Plan or Company Labor Agreement on the same terms as in existence on the date hereof; (C) except as provided in Section 2.4, take any action to amend or waive any performance or vesting criteria or exercise any discretionary authority to (I) increase the number of Performance RSUs that would vest at the Effective Time to a number that exceeds the applicable Target Performance RSU Level, as further prorated to reflect the portion of the performance period applicable to each such Performance RSU that will have elapsed as of the Effective Time or (II) increase the amount payable pursuant to any Performance Cash Award that would be payable at the Effective Time to an amount that exceeds the applicable target level for such Performance Cash Award as provided in the Company Cash Award Schedule, as further prorated to reflect the portion of the performance period applicable to each such Performance Cash Award that will have elapsed as of the Effective Time, or (III) accelerate vesting, exercisability or funding under any Company Benefit Plan, including, for the avoidance of doubt, exercising any discretionary authority to accelerate the vesting of any Performance RSUs or Company Cash Awards or; (D) terminate the employment of any officer; (n) make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (io) issuances compromise, settle or agree to settle any Proceeding, other than compromises, settlements or agreements of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options Proceedings (excluding any Transaction Litigation) in the ordinary course of business consistent with past practice pursuant that involve only the payment of monetary damages not in excess of $500,000 individually, 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, file any amended material Tax Return, enter into any material closing agreement, surrender any right to stock option plans and employee benefit schemes existing as claim a refund of a material amount of Taxes, consent to an extension or waiver of the date hereof limitation period applicable to any Tax claim or assessment, fail to pay any material Tax that becomes due and issuances payable (including estimated Tax payments), prepare or file any material Tax Return in a manner inconsistent with past practice (except as otherwise required by applicable law), adopt or change any of Common Stock upon exercise its material methods of such stock options and reporting income or deductions for Tax purposes or other material Tax accounting method, or settle or compromise any material Tax liability or settle any material Tax claim, audit or dispute; (iiq) issuances enter into any new line of Common Stock on conversion business or materially alter any existing line of business; (r) implement any Series A Preferred Stock or Convertible Debentures outstanding as employee layoffs in violation of the date hereofWARN Act, or, other than in the ordinary course of business consistent with past practice, any other layoffs, reductions in force, early retirement programs, or other voluntary or involuntary employment termination programs; (s) 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 its Subsidiaries or any of their respective businesses, assets or properties; or (et) acquire authorize or subscribe for shares enter into any Contract or securities in otherwise make any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering commitment to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and do any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During the period from The Company agrees that, between the date hereof to of this Agreement and the Closing Date Effective Time, except as set forth in Section 5.1 of the Company will Disclosure Schedule or as specifically permitted by any other provision of this Agreement, unless Parent shall otherwise agree in writing (which agreement shall not be unreasonably withheld, conditioned or delayed), the Company will, and will cause each of its Subsidiaries Company Subsidiary to, (iA) to conduct its operations in all material respects in the ordinary and usual course of business consistent with past practice practice, (B) 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 to 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 is reasonably necessary to preserve substantially intact its business organization, (C)(i) within 30 days of the date of this Agreement, provide Parent and Merger Sub an updated disclosure schedule pursuant to Section 3.18.1 of this Agreement which, in the case of patents and patent applications, shall include without limitation the correct patent or registration number and the current assignee or owner of record at the relevant Governmental Entity for each applicable jurisdiction and (ii) use its reasonable best efforts to preserve intact take all actions necessary to establish the Company’s ownership of all right, title and interest in and to the Material Intellectual Property (subject to the security interests set forth in Section 3.18.1 of the Company Disclosure Schedule), including but not limited to having inventors execute a written assignment of all rights to inventions and filing such assignments with the applicable Governmental Entities, (D) use its current business organizationsreasonable best efforts to (i) take all actions necessary for the Company and each Company Subsidiary to be duly organized, keep available validly existing and in good standing under the service Laws of the jurisdiction of its current officers incorporation or organization as of the Effective Time, (ii) to ensure that the Company and employees each Company Subsidiary has all requisite corporate or organizational, as the case may be, power and preserve authority to own, lease and operate its relationships with customersproperties and assets and to carry on its business as it is now being conducted, suppliersand (iii) deliver or cause to be delivered to Parent and Merger Sub prior to the Effective Time true and complete copies of the currently effective certificate of incorporation and bylaws, distributorsor equivalent organizational or governing documents, lessorsof each Company Subsidiary, creditors(E) deliver to Parent and Merger Sub as soon as practicable but in no event later than the Effective Time a schedule which sets forth, vendorsfor each Company Subsidiary, contractors as applicable: (1) its authorized capital stock or other Equity Interests, (2) the number of its outstanding shares of capital stock or other Equity Interests and others having business dealings with it with type(s) of such outstanding shares of capital stock or other Equity Interests and (3) the intention record owner(s) thereof, and (F) within 30 days of the date of this Agreement, except for contracts disclosed on Section 3.15.1 of Company Disclosure Schedule, provide Parent and Merger Sub a true and complete list of each contract (and a copy thereof) to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assets and which involves (i) a supplier or a customer providing for annual payments or receipts in excess of $50,000 or (ii) future expenditures or receipts by the Company or any Company Subsidiary of more than $50,000 in any one year period that its goodwill and ongoing business shall cannot be unimpaired at the Closing Dateterminated on less than 90 days’ notice without material payment or penalty. The Company agrees and Parent agree to meet (whether in person or by means of telephonic meeting) at least monthly at reasonable times upon prior notice between the date hereof and the earlier of (x) the Effective Time and (y) the date that it shall notthis Agreement expires or is terminated in accordance with Article 7, directly or indirectlyto review the Company’s compliance with its obligations under Sections 5.1(C), (D), (E) and (F) above. Without limiting the foregoing, and it will cause each as an extension thereof, except as set forth in Section 5.1 of its Subsidiaries the Company 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 Company Subsidiary to, between the date of this Agreement and the Closing DateEffective Time, except as specifically contemplated by directly or indirectly, do, or agree to do, any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under following without the Certificate prior written consent of Amendment, assuming for purposes of this clause Parent (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) which consent shall not be deemed to materially affect such rights of the Purchaser;unreasonably withheld, conditioned or delayed): (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue 5.1.1 amend or sell any equity securities or securities exercisable or convertible into equity securities of otherwise change the Company Certificate or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise of such stock options and (ii) issuances of Common Stock on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000.Bylaws;

Conduct of Business by the Company Pending the Closing. During the period from The Company covenants and agrees that, between the date hereof to of this Agreement and the Closing Date Effective Time, except (a) as set forth in Section 5.1 of the Company will Disclosure Schedule, (b) as expressly required pursuant to this Agreement or (c) as consented to in writing by Parent (in its sole discretion; provided, however, that, with respect to subsections (xii) and (xviii) below, such consent shall not be unreasonably withheld, delayed or conditioned), the Company will, and will cause each of its Subsidiaries Company Subsidiary to, (i) to conduct its operations in all material respects in the ordinary course of business consistent with past practice, (ii) use commercially reasonable efforts to keep available the services of the current officers of the Company and each Company Subsidiary and preserve the goodwill and current relationships of the Company and each Company Subsidiary with customers, 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 an extension thereof, except (a) as set forth in Section 5.1 of the Company Disclosure Schedule, (b) as expressly required by any other provision of this Agreement, (c) as required by applicable Law or (d) as consented to in writing by Parent (in its sole discretion; provided, however, that, with respect to subsections (xii) and (xviii) below, such consent shall not be unreasonably withheld, delayed or conditioned), 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, or agree to do, any of the following: (i) amend or otherwise change the Company Certificate or the Company Bylaws or the comparable organizational documents of any Company Subsidiary; (ii) except to the extent required by (A) applicable Law, (B) the existing terms of any Company Benefit Plan described in Section 3.11(a) of the Company Disclosure Schedule or (C) any other plan or agreement in effect as of the date of this Agreement (including any collective bargaining agreement), amend, modify or adjust the terms of any Equity Interests, including the Company Warrants, the Restricted Stock and the Company Options, and any Contracts governing such interests; (iii) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any Equity Interests, except from holders of Company Options or Company in connection with the full or partial payment of the exercise price and any applicable Taxes payable by such holder upon exercise of Company Options to the extent required under the terms of such Company Options or in the ordinary course of business consistent with past practices; (iv) issue, sell, deliver, pledge, dispose of, grant, transfer, subject to any Lien 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, calls, commitments, 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, in each case other than (A) the issuance of Shares pursuant to the exercise of the Company Options and Company Warrants outstanding on the date hereof in accordance with their terms on the date hereof and (B) the issuance of shares upon the exercise of the Top-Up Option; (v) sell, pledge, mortgage, dispose of, transfer, lease, license, guarantee, subject to any Lien, encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any of the property or assets (including Intellectual Property) of the Company or any Company Subsidiary, other than pursuant to existing contracts or commitments with respect to the sale or purchase of goods, and pursuant to licenses for the licensing to or from third parties of Intellectual Property, in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizationsdispositions of immaterial tangible assets of the Company, keep available including the service disposition of its current officers and employees and preserve its relationships with customersobsolete or worn out equipment, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) ordinary course of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaserbusiness consistent with past practice; (bvi) take declare, set aside, make or pay any action dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities capital stock of the Company or any Company Subsidiary (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; (vii) 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 or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (viii) merge or consolidate the Company or any Company Subsidiary with any Person (other than the Merger) or 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); (ix) directly or indirectly acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) in one transaction or any series of related transactions any Equity Interests in any Person or any business or division of any Person or all or substantially all of the assets of any Person (or business or division thereof), other than acquisitions of assets for consideration that is individually not in excess of $100,000, or in the aggregate not in excess of $1,000,000; (ix) issuances (A) incur or assume any long-term or short-term indebtedness for borrowed money or issue any debt securities, (B) assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), the obligations of Common Stock upon any Person (other than a wholly-owned Company Subsidiary) for borrowed money or (C) cancel any indebtedness or waive or assign any claims or rights of substantial value, except (x) in connection with refinancings of existing indebtedness at the exercise maturity thereof so long as the Company uses its existing credit facility on the date hereof to refinance such indebtedness or (y) short-term indebtedness for trade payables incurred in the ordinary course of stock options outstanding business consistent with past practice; provided, however, that, notwithstanding anything to the contrary in this Agreement, if the Effective Time has not occurred on or prior to December 8, 2009, the Company may, in consultation with Parent, undertake all actions reasonably necessary to amend its existing credit facility to extend its maturity, on terms reasonably acceptable to the Company; provided, further, that, the Company will continue to comply with its obligations under this Agreement, including Section 5.12, and will not incur any additional indebtedness in connection with such amendment; (xi) except for advances for expenses in the ordinary course of business consistent with past practice, make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Company Subsidiary); (xii) terminate, cancel, renew, transfer, assign, license, encumber or request or agree to any material change in 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; (xiii) make, authorize or incur any capital expenditure or otherwise acquire any asset, or any obligations or liabilities in respect thereof in excess of the Company’s capital expenditure budget as disclosed to Parent prior to the date hereof; (xiv) except to the extent required by (A) applicable Law, (B) the existing terms of any Company Benefit Plan described in Section 3.11(a) of the Company Disclosure Schedule or (C) any other plan, arrangement, agreement or corporate policy in effect as of the date hereofof this Agreement (including any collective bargaining agreement): (1) increase the compensation or benefits payable or to become payable to its directors, issuances of stock options officers or employees other than customary increases in the ordinary course of business consistent with past practice pursuant made to employees below the level of Vice President (which increases, subject to clause (2) below, are customarily made after the end of a calendar year), (2) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or employee at the level of Vice President or above, (3) establish, adopt, enter into or materially amend any material collective bargaining, bonus, profit sharing, thrift, compensation, stock option plans 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 (4) waive or materially amend any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan; (xv) (A) pre-pay any long-term debt, (B) waive, settle, release, pay, discharge, satisfy or commence any claims, liabilities, obligations or litigations (absolute, accrued, asserted or unasserted, contingent or otherwise), in each case made or pending against the Company, any Company Subsidiary, or any of their respective officers and employee benefit schemes existing directors, other than any settlement, payment, discharge or satisfaction where the amounts paid or to be paid are less than $100,000 in the aggregate, (C) 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, (D) 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 or (E) vary its inventory practices in any material respect from past practices; (xvi) make any change in accounting policies, practices, principles, methods or procedures used by the Company, other than as required by GAAP or by a Governmental Entity; (xvii) (A) make, change or rescind any material tax election, (B) settle or compromise any material Tax Claim or liability for a material amount of Taxes, (C) change (or make a request to any Taxing Authority to change) any material accounting or material Tax reporting principles, methods or policies or (D) surrender any Tax refund for a material amount of Tax or file any or amend any Tax Return, in each case, other than in the ordinary course of business or consistent with past practice; (xviii) enter into, amend or modify any union recognition agreement, collective bargaining agreement or similar agreement with any trade union or representative body; (xix) create or have any subsidiary of the date hereof and issuances of Common Stock upon exercise of Company, other than the Company Subsidiaries: (xx) subject to Section 5.4 hereof, take any action (or omit to take any action) if such stock options and action (iior omission) issuances of Common Stock on conversion of would reasonably be expected to result in any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereofconditions to the obligations of Parent or the Purchaser to consummate the Merger set forth in Article 6 and the conditions to consummate the Offer in Annex I not being satisfied; or (exxi) acquire authorize or subscribe for shares enter into any Contract or securities in otherwise make any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering commitment to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and do any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During the period from The Company agrees that, between the date hereof to of this Agreement and the Closing Date Effective Time, except as set forth in Section 6.1 of the Company will Disclosure Schedule, as otherwise contemplated by this Agreement, as required by applicable Law, a pre-existing contractual obligation disclosed in the Company Disclosure Schedule, or as consented to in writing by Parent (such consent not to be unreasonably withheld or delayed), the Company will, and will cause each Company Subsidiary to, in all material respects (it being understood that in no event shall the Company’s participation in the negotiation (including activities related to due diligence), execution, delivery or public announcement (in accordance with this Agreement) or the pendency of its Subsidiaries this Agreement or the transactions contemplated hereby or any actions taken in good faith compliance herewith or the consequences thereof on the respective businesses of the Company and the Company Subsidiaries, be considered a breach of any of the provisions of this Section 6.1), (i) to conduct its business substantially in the ordinary course consistent with past practice and (ii) use 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 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 is reasonably necessary to preserve substantially intact its business organization. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 6.1 of the Company Disclosure Schedule, as otherwise contemplated by this Agreement, as required by applicable Law or a pre-existing contractual obligation disclosed in the Company Disclosure Schedule, or as consented to in writing by Parent (such consent not to be unreasonably withheld 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, or agree to do, any of the following: (a) amend or otherwise change the Company Certificate, the Company By-laws or equivalent organizational documents; (b) issue, deliver, sell, pledge or encumber, or authorize, propose or agree to the issuance, delivery, sale, pledge or encumbrance of, any shares of its capital stock, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock (other than pursuant to the exercise of options, warrants, conversion rights and other contractual rights existing on the date hereof); (c) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the Company or to any other wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting of its capital stock; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other Equity Interests, except pursuant to the exercise of options, warrants, conversion rights, employee severance, retention, termination, change of control and other contractual rights existing on the date hereof; (e) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets), outside of the ordinary course of business, any interest in any Person or any division thereof or any assets, other than any acquisitions that are in progress on the date hereof and identified by the letters of intent or expressions of interest listed in Section 6.1(e) of the Company Disclosure Schedule; (f) 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 Company Subsidiary) for borrowed money, except for (i) indebtedness for borrowed money incurred in the ordinary course of business, pursuant to existing credit lines disclosed in Section 6.1(f) of the Company Disclosure Schedule, (ii) indebtedness for borrowed money (other than indebtedness for borrowed money owing by any wholly-owned Company Subsidiary to the Company or any other wholly-owned Company Subsidiary) with a maturity of not more than one year in a principal amount not, in the aggregate, in excess of $25,000,000 for the Company and the Company Subsidiaries taken as a whole, in each case which can be prepaid without premium or penalty, and all Liens securing such indebtedness for borrowed money released, at or prior to the Closing, (iii) indebtedness for borrowed money owing by any wholly-owned Company Subsidiary to the Company or any other wholly-owned Company Subsidiary and (iv) indebtedness for borrowed money incurred with respect to actions permitted pursuant to Section 6.1 of the Company Disclosure; (g) grant any Lien in any of its material assets to secure any indebtedness for borrowed money, except in connection with such indebtedness permitted under the preceding clause (f); (h) issue any debt securities or assume, endorse, or otherwise 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; (i) except to the extent the amount is reflected in the 2005 and 2006 capital expenditure budgets provided to Parent, authorize, or make any commitment with respect to, any single capital expenditure which is in excess of $5,000,000 or capital expenditures which are, in the aggregate, in excess of $15,000,000 for the Company and the Company Subsidiaries taken as a whole other than emergency repairs and repairs compelled by (i) legal or safety requirements, (ii) existing leases or consent requirements thereof, or (iii) up to $15,000,000 to remedy exceptions of title necessary to meet any condition contained in Article 7 hereof, and the Company shall consult with Parent on all such items in excess of budget; (j) enter into any new line of business outside of its existing business segments; (k) make investments in persons other than wholly-owned Company Subsidiaries, other than ordinary course cash management investments in accordance with the Company’s existing investment policy; (l) adopt or amend any material Company Benefit Plan, increase in any material manner the compensation or fringe benefits of any director, officer or employee of the Company or pay any material benefit not provided for by any existing Company Benefit Plan, in each case except (i) as set forth in Section 6.1(l) of the Company Disclosure Schedule, (ii) as reasonably necessary to comply with applicable Law, (iii) in the ordinary course of business (including without limitation to address the requirements of written agreements or contracts the Company and each Company Subsidiary has entered into as of the date hereof), (iv) in connection with entering into, with respect to newly hired employees, or extending with respect to existing employees, any employment or other compensatory agreements with individuals (other than the named executive officers (as such term is used in Item 402 of Regulation S-K promulgated under the Exchange Act) or directors of the Company or any Company Subsidiary) in the ordinary course of business, consistent with the Company’s 2005 and 2006 budgets provided to Parent and past practice, and comparable to compensatory amounts for individuals of similar responsibility in the Company (v) in connection with entering into any retention agreements or programs determined by the Board of Directors of the Company as being reasonably necessary in order to maintain its business operations prior to, and extending through, the Effective Time, provided, that any retention payments thereunder shall not be made payable to any Company employee with a title of Vice President or higher nor exceed $5,000,000 in the aggregate, subject in each case to Parent’s approval, such approval not to be unreasonably withheld, (vi) general compensation increases in the ordinary course of business consistent with past practice or (vii) the termination or amendment of any Company Benefit Plan that may be subject to Code Section 409A consistent with Code Section 409A and any guidance issued thereunder, provided, that such amendment does not result in an increase in benefits payable under the applicable Company Benefit Plan; (m) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than (i) performance of contractual obligations in accordance with their terms, (ii) payment, discharge, settlement or satisfaction in the ordinary course of business or (iii) payment, discharge, settlement or satisfaction in accordance with their terms, of claims, liabilities or obligations (x) disclosed or reserved in the most recent financial statements (or the notes thereto) of the Company included in the Company SEC Filings filed prior to preserve intact its current business organizations, keep the date hereof or contemplated by documents made available to Parent prior to the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly date hereof or indirectly, and it will cause each of its Subsidiaries not to, between (y) incurred since the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result such financial statements in the circumstances described in clauses (i) through (xx) ordinary course of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendmentbusiness; provided, assuming for purposes of this however, that any such amounts paid pursuant to clause (ii) that or (iii), individually or in the Closing had occurredaggregate, it being understood that in excess of $15,000,000 above the actions permitted byamounts so disclosed or reserved or, and in accordance withshall require the consent of Parent (such consent not to be unreasonably withheld, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaserconditioned or delayed); (bn) take except as otherwise contemplated by this Agreement, including Sections 6.1(e) and 6.4, or as otherwise required by Law or Governmental Entity, adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any action to cause Company Subsidiary (other than the Company's representations and warranties set forth in Article III to be untrueMerger); (co) file any Tax Return taking a position inconsistent with the Company’s or any Company Subsidiaries’ past practice, except as required by Law; or (p) knowingly commit or agree to take any of the foregoing actions described or any action which would result in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue any representation or sell any equity securities or securities exercisable or convertible into equity securities warranty of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding contained in this Agreement which is qualified as to materiality becoming untrue as of the date hereof, issuances of stock options Effective Time or any representation not so qualified becoming untrue in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing any material respect as of the date hereof and issuances of Common Stock upon exercise of such stock options and (ii) issuances of Common Stock on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000Effective Time.

Conduct of Business by the Company Pending the Closing. During the period from The Company agrees that, between the date hereof to of this Agreement and the earlier of the Closing Date and the termination of this Agreement in accordance with Article 7, except as set forth in Section 5.1 of the Company will Disclosure Schedule or as otherwise contemplated by this Agreement or with the prior written consent of Investor (not to be unreasonably withheld, conditioned or delayed), the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to (i) to conduct its operations in the ordinary course of business in a manner consistent with past practice, and (ii) preserve the goodwill and current relationships 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 contemplated by this Agreement or with the prior written consent of Investor (not to be 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 Closing and the termination of this Agreement in accordance with Article 7, take any of the following actions without the prior written consent of Investor (not to be unreasonably withheld, conditioned or delayed): (a) (i) change or amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries, except as otherwise required by Law; or (ii) authorize for issuance, issue, grant, sell, deliver, dispose of, pledge or otherwise encumber any Equity Interests of the Company or any of its Subsidiaries, except for issuances of shares of Company Common Stock upon the exercise of existing Company Options or the issuance of incentive equity awards under Company Incentive Plans as in effect on the date hereof in the ordinary course of business, consistent with past practice; (b) except as required by the terms of any Company Incentive Plans as in effect on the date hereof, purchase, repurchase or redeem any Equity Interest of the Company; (c) (i) appoint or remove any member of the Board, otherwise than in accordance with the Company’s organizational documents or (ii) increase or decrease the size of the Board; (d) make or declare any dividend or distribution to the stockholders of the Company; (e) sell, assign, transfer, convey, lease or otherwise dispose of any material assets or properties, except pursuant to existing Contracts or for sales of products in the ordinary course of business consistent with past practice; (f) make any material loans or material advances of money to any Person (other than the Company and its Subsidiaries), except for (i) loans made pursuant to Company Benefit Plans, (ii) advances to employees or officers of the Company or any of its Subsidiaries for expenses incurred in the ordinary course of business consistent with past practice or (iii) trade credit extended to customers, franchisees and other business counterparties in the ordinary course of business consistent with past practice; (g) except as required by the terms of any Company Benefit Plan as in effect on the date hereof, pay or enter into any agreement to pay any transaction-related, retention, or severance compensation or benefits to any director, officer or key employee of the Company or any of its Subsidiaries; (h) 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; (i) commence any bankruptcy or receivership proceeding; (j) acquire (including by merger, consolidation, or acquisition of stock or assets) any Person or assets, other than (i) acquisitions of inventory, raw materials and other property in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizationsany other acquisitions with a purchase price of less than $25 million, keep available including the service assumption of its current officers Indebtedness and employees and preserve its relationships with customersliabilities outside of the ordinary course of business; (k) incur any Indebtedness or assume, suppliersguarantee or endorse, distributorsor otherwise as an accommodation become responsible for (whether directly, lessorscontingently or otherwise), creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly or indirectly, and it will cause each Indebtedness of its Subsidiaries not to, between the date of this Agreement and the Closing Dateany Person, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in for Indebtedness under the circumstances described in clauses (i) through (xx) of Section 3.07(a) or Credit Agreement Refinancing Documentation, (ii) affect the rights for borrowings and/or letters of the Purchaser credit issued under the Certificate Credit Agreement in the ordinary course of Amendmentbusiness, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any Company Subsidiary, other than (iiii) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options commercial paper for working capital and general corporate purposes in the ordinary course of business or consistent with past practice pursuant to stock option plans and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise of such stock options or industry standards, and (iiiv) issuances Indebtedness not to exceed $25 million in any single transaction or series of Common Stock on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereofrelated transactions; or (el) acquire authorize or subscribe for shares enter into any Contract or securities in otherwise make any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering commitment to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and do any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During the period from From the date hereof to until the earlier of the Closing Date and the termination of this Agreement in accordance with Article VII, except (w) as expressly contemplated or required hereunder, (x) as required by applicable Law, (y) if Parent shall have expressly consented in advance in writing (such consent not to be unreasonably withheld, conditioned or delayed), or (z) as set forth on the correspondingly numbered subsection of Section 5.1 of the Company will Disclosure Schedule, (1) the Company shall, and will shall cause each of its Subsidiaries to, use reasonable best efforts to (iI) to conduct its operations in the ordinary course of business consistent with past practice and (iiII) to (A) preserve the goodwill of the Company and its Subsidiaries and keep intact its current business organizationstheir respective material assets, properties and Contracts; (B) keep available the service services of its current officers and employees key employees; and (C) preserve its the current relationships with key customers, suppliers, distributors, lessors, licensors, licensees, creditors, vendorscontractors, contractors partners, service providers (including transload and others having transportation providers), Governmental Entities and other persons with whom the Company and its Subsidiaries have significant business dealings with it with relations; provided, however, that (i) no action by the intention that Company or its goodwill and ongoing business Subsidiaries to the extent specifically permitted by an exception to any provision of Section 5.1(2) shall be unimpaired at deemed a breach of this subclause Section 5.1(1) and (ii) any failure by the Closing Date. The Company agrees that it or any of its Subsidiaries to take any action specifically prohibited by any provision of Section 5.1(2) shall not be deemed a breach of this Section 5.1(1), and (2) the Company shall not, directly or indirectly, and it will shall cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take issue, sell, distribute, assign, transfer, grant, pledge, hypothecate, dispose of or otherwise encumber any action which would (i) be reasonably likely to result in shares of capital stock of, or other Equity Interests in, the circumstances described in clauses (i) through (xx) Company or any of Section 3.07(a) its Subsidiaries or (ii) affect the 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 the Purchaser under the Certificate any kind to acquire any shares of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaser; (b) take any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue capital stock or sell any equity securities other Equity Interests or securities exercisable such convertible or convertible into equity exchangeable securities of the Company or any of its Subsidiaries, other than the issuance of Shares upon the settlement of Company SubsidiaryAwards outstanding as of the date hereof or as permitted to be granted under clause (m)(i)(C) of this Section 5.1, in each case in accordance with their terms; (b) merge or consolidate the Company or any of its Subsidiaries with any Person; (c) acquire any other Person or any material assets or business (including any division or line of business thereof) or properties of any other Person (whether by merger or consolidation, acquisition of stock or assets or by formation of a joint venture or otherwise) or make any investment in any Person, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as an investment in any wholly owned Subsidiary of the date hereofCompany or (ii) acquisitions of inventory, issuances raw materials, equipment, spare parts and other business supplies, in each case, in the ordinary course of stock options business; (d) effect any recapitalization, reclassification, in-kind dividend, equity split or similar change in capitalization; (e) amend their certificates or articles of incorporation or limited liability company agreements (or equivalent organizational documents); (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 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, assign, transfer, convey, lease or otherwise dispose or create any Lien (other than Permitted Liens) on any of the Company’s or its Subsidiaries’ material assets or properties, except sales of inventory or products or obsolete equipment in the ordinary course of business; (h) sell, assign, transfer, permit to lapse, waive any rights under, abandon or license any material Company Intellectual Property, other than non-exclusive licenses to customers in connection with their receipt of goods or services from the Company granted in the ordinary course of business consistent with past practice; (i) enter into or renew any Affiliate Contracts; (j) disclose or permit to disclose any Trade Secrets or confidential information of the Company and its Subsidiaries to any Person, other than in the ordinary course of business consistent with past practice pursuant to stock option plans and employee Persons who are under a contractual 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 schemes existing as of, any Person other than (I) to or in any wholly owned Subsidiary of the date hereof Company in the ordinary course of business, or (II) advances to directors, officers and other employees for travel and other reimbursable expenses incurred in the ordinary course of business or advances to customers in the ordinary course of business; (l) (x) incur, assume, endorse, guarantee or otherwise become liable for any indebtedness or guarantee any indebtedness, other than (i) borrowings under the Company’s existing credit facilities or issuances of Common Stock upon exercise commercial paper, in each case, for working capital purposes in an amount not to exceed $25,000,000.00 in the aggregate, (ii) indebtedness between or among the Company and its wholly owned Subsidiaries in the ordinary course of business consistent with past practice, (iii) 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(l), and (iv) indebtedness arising solely from a change in GAAP, or (y) cancel, release, waive, forgive, assign or amend the terms of any indebtedness existing on the date of this Agreement other than at the request of Parent or Merger Sub; (m) (i) except as required by Law or the terms of any Company Benefit Plan or Labor Agreement as in effect on the date hereof, (A) increase the compensation or benefits payable or provided (or that may become payable or provided) to any current or former employee or other service provider of the Company (including in connection with promotions), except as done in the ordinary course of business consistent with past practice with respect to employees with annual aggregate target cash compensation (consisting of the sum of annual base salary and annual target bonus) that is less than $250,000; (B) take any action to accelerate the vesting or lapsing of restrictions or payment, or fund or in any other way secure the payment, of any compensation or benefits; (C) grant any new Company Awards, equity-based or other long-term incentive awards, or amend or modify the terms of any outstanding Company Awards, equity-based or other long-term incentive awards, other than grants of Company RSUs covering up to 100,000 Shares in the aggregate made in the ordinary course of business consistent with past practice in connection with new hires and promotions otherwise permitted hereunder; (D) pay or agree to pay to any current or former employee or other service provider any severance, retention, change in control compensation, pension or retirement allowance, except for severance paid or granted in accordance with the Company’s severance arrangements as set forth on Section 5.6(a) of the Company Disclosure Schedule; (E) enter into any new, or amend any existing, employment or severance or termination agreement with any current or former employee or other service provider, except for separation agreements in the ordinary course of business consistent with past practice in connection with severance paid or granted in accordance with the Company’s severance arrangements as set forth on Section 5.6(a) of the Company Disclosure Schedule; or (F) establish any Company Benefit Plan that was not in existence prior to the date of this Agreement, or materially amend or terminate any Company Benefit Plan in existence on the date of this Agreement, except for renewals, amendments or terminations of health and welfare benefit plans in the ordinary course of business consistent with past practice that do not materially increase costs for or under the applicable Company Benefit Plan; or (ii) hire or terminate the employment of any employee (other than for cause), other than the hiring or terminating of any employee with annual aggregate target cash compensation (consisting of the sum of annual base salary and annual target bonus) less than $250,000 in the ordinary course of business; (n) make, change or revoke any Tax election (whether an entity classification election under Treasury Regulations Section 301.7701-3 or otherwise), adopt or change any Tax accounting period or any Tax accounting method, amend any material Tax Return, enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any corresponding or similar provisions of state, local or non-U.S. Tax Law) with a Governmental Entity with respect to a material amount of Taxes, request any ruling or administrative relief from any Governmental Entity with respect to a material amount of Taxes, settle any Tax claim, audit or assessment, agree to an extension or waiver of the statute of limitations with respect to any material amount of Taxes (except for automatic extensions in the ordinary course of business) or surrender any right to claim a material Tax credit or refund, offset or other reduction of Taxes; (o) settle, release, waive or compromise any existing or pending or threatened Proceeding unless such settlement, release, waiver or compromise (i) involves solely monetary payments that do not exceed $250,000.00 individually or $3,500,000.00 in the aggregate (after taking into account insurance coverage maintained by the Company or its Subsidiaries that will cover such settlement, release or compromise), (ii) does not impose any material restriction on the business of the Company or any of its Subsidiaries, (iii) does not involve an admission of guilt or liability by the Company or any of its Subsidiaries, (iv) does not relate to any litigation by the Company’s stockholders in connection with this Agreement or the Transactions, and (v) is not with respect to a Proceeding in which a Governmental Entity is adverse to the Company or any of its Subsidiaries; (p) (i) terminate or amend in any material respect (x) any Leased Real Property Lease, any Landlord Lease or any material Mining Property lease, in each case, requiring annual base rent (excluding any utility, property tax or other operating expense reimbursements or other similar additional rent) and/or royalty payments in excess of $200,000.00 (each, a “Material Lease”), or (y) any Company Material Contract (or any Contract referred to in clause (ii) or (iv) of this paragraph (p)), other than, in each case of clauses (x) and (y), any renewal or expiration in the ordinary course of business of such stock options Company Material Contract (or other such Contract) or Material Lease and in accordance with the terms of such Company Material Contract (or other such Contract) or such Material Lease, as applicable, and (in the case of renewals) on terms not less favorable to the Company and its Subsidiaries than the terms of the applicable existing Company Material Contract (or other such Contract) or Material Lease, (ii) other than in the ordinary course of business, enter into any Contract that, if entered into prior to the date of this Agreement, would be a Company Material Contract (other than a Material Contract of the type required to be disclosed under clauses (vi), (vii), (viii), (ix), (x), (xiii), (xiv) or (xv) of the definition of Material Contract (each, a “Specified Contract”)), or enter into any new Material Lease, (iii) waive any material right under, or release, settle or compromise any material claim under, any Company Material Contract (or other such Contract) or any Material Lease; or (iv) enter into any Contract that, if entered into prior to the date of this Agreement, would be a Specified Contract; (q) (i) amend any material Permits in any material respect or (ii) terminate or allow to lapse, any material Permits, except, in the cases of clauses (i) and (ii), (x) issuances as required by applicable Law (including an Order of Common Stock on conversion a Governmental Entity) or (y) any renewal in the ordinary course of business; (r) enter into, extend, amend or terminate any material interest rate, currency, equity, commodity or other swaps, xxxxxx, derivatives, forward sales contracts or other similar financial instruments; (s) participate in or enter into any Contracts in respect of any Series A Preferred Stock programs sponsored or Convertible Debentures outstanding financed by any Governmental Entities that obligate the Company to incur expenses in excess of $200,000.00 in the aggregate; (t) except for the Labor Agreements set forth in Section 5.1(t) of the Company Disclosure Schedule or as required by Law or by any Labor Agreement, (i) modify, renew, extend, or enter into any Labor Agreement; or (ii) recognize or certify any labor union, labor organization, works council, or group of employees of the Company or its Subsidiaries as the bargaining representative for any employees of the Company or its Subsidiaries (for clarity, other than Company employees covered by a Labor Agreement as of the date hereof); provided that with respect to clause (i), the Company shall consult with Parent reasonably in advance of taking any such action even if permitted hereunder without Parent’s consent; (u) adopt a plan or agreement of complete or partial liquidation or dissolution of the Company or any of its Subsidiaries; (v) enter into any new line of business or wind down any existing line of business; (w) for any calendar quarter, (A) make, or make any commitments with respect to, capital expenditures in excess of the amount allocated for all projects in the aggregate during such calendar quarter in the Company’s capital expenditure budget set forth on Section 5.1(w) of the Company Disclosure Schedule plus 15% (regardless of when the amounts would be paid) or (B) make capital expenditures less than the amount allocated for all projects in the aggregate during such calendar quarter in the Company’s capital expenditure budget set forth on Section 5.1(w) of the Company Disclosure Schedule minus 20%; (x) implement or adopt any material change in its financial accounting principles, practices or methods, other than as required by GAAP or applicable Law (including an Order of any Governmental Entity); or (ey) acquire agree to take, make any commitment to take, or subscribe for shares or securities adopt any resolutions in support of, any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to of the extent that actions prohibited by this Section 5.1. Without limiting the aggregate price scope of all such acquisitions or subscriptions by covenants of the Company set forth in this Section 5.1, the parties hereto acknowledge and agree that (x) 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 does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and prior to the Closing Date and (y) prior to the Closing, subject to this Section 5.1, the Company shall be permitted to sellexercise, leaseconsistent with the terms and conditions of this Agreement, transfer or otherwise dispose complete control and supervision over the operations of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000itself and its Subsidiaries.

Conduct of Business by the Company Pending the Closing. During the period from The Company agrees that, between the date hereof to of this Agreement and the Closing Date Effective Time, except as set forth in Section 5.1 of the Company will Disclosure Schedule, as expressly required by applicable Law or this Agreement or otherwise 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 Company Subsidiary to, (i) to conduct its operations only in the ordinary and usual course of business consistent with past practice, (ii) use its commercially reasonable efforts to keep available the services of the current officers, employees and consultants of the Company and each Company Subsidiary and preserve the goodwill and current relationships of the Company and each Company Subsidiary with customers, suppliers and other Persons with which the Company or any Company Subsidiary has significant business relations and (iii) use its commercially reasonable efforts to preserve intact its business organization. Without limiting the foregoing, 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 (not to be 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 any of the following: (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 any shares of capital stock of, or other Equity Interests in, the Company or any Company Subsidiary, other than the issuance of Shares upon the exercise of Company Options outstanding as of the date hereof in accordance with their current terms, and other than the grant of Company Options approved by the Compensation Committee of the Board prior to the date hereof that are set forth on Section 5.1(b) of the Company Disclosure Schedule, including their respective holders, number of shares subject thereto, scheduled grant dates, vesting schedules and expiration dates (and the issuance of Shares thereunder upon exercise); (c) sell, pledge, dispose of, transfer, lease, license, guarantee, encumber (except for Permitted Liens), any material property or assets (including Intellectual Property Rights) of the Company or any Company Subsidiary, or abandon or permit to lapse any material Intellectual Property Rights, except pursuant to existing Contracts for the sale or purchase of goods or services in the ordinary course of business consistent with past practice; (d) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock or other Equity Interests or enter into any agreement with respect to the voting or registration of its capital stock or other Equity Interests, other than dividends from the Australian Subsidiary to the Company to the extent necessary to fund the operations of the Company and the Company Subsidiaries, in the ordinary course of business consistent with past practice and (iibut in no event shall dividends be paid by the Australian Subsidiary in an amount that would cause the representation set forth in the first sentence of Section 3.18(o) to preserve intact its current business organizationsbe untrue); (e) reclassify, keep available combine, split, subdivide or amend the service of its current officers and employees and preserve its relationships with customersterms of, suppliersor redeem, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall notpurchase or otherwise acquire, directly or indirectly, and it will cause each any of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any capital stock or other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which would (i) be reasonably likely to result in the circumstances described in clauses (i) through (xx) of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the PurchaserEquity Interests; (bf) take merge or consolidate the Company or any action to cause the Company's representations and warranties set forth in Article III to be untrue; (c) agree to take Company Subsidiary with any Person or adopt a plan of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedulecomplete or partial liquidation or resolutions providing for a complete or partial liquidation, from the date hereof and prior to the Closing Date (the "Blackout Period")dissolution, issue restructuring, recapitalization or sell any equity securities or securities exercisable or convertible into equity securities other reorganization of the Company or any Company Subsidiary; (g) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any Person, other than (i) issuances any such acquisitions for consideration that is individually not in excess of Common Stock upon $200,000, or in the exercise aggregate not in excess of stock options outstanding as $1,000,000, and (ii) acquisitions of the date hereof, issuances of stock options goods and services in the ordinary course of business consistent with past practice pursuant practice; (h) incur any indebtedness for borrowed 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 for borrowed money; (i) make any loans, advances or capital contributions to, or investments in, any other Person, in excess of $200,000 in the aggregate, other than (i) extensions of trade credit or advancement of expenses to stock option plans employees or (ii) loans, advances or capital contributions to, or investments in, GTN Canada, GTN UK and employee benefit schemes GTN Alert to the extent necessary to fund operations of such Company Subsidiaries, in each case, in the ordinary course of business consistent with past practice; (j) terminate, cancel, or agree to any material change in or waiver under, any Company Material Contract, enter into any Contract that, if existing as of on the date hereof, would be a Company Material Contract, or amend any Contract in existence on the date hereof and issuances that, after giving effect to such amendment, would be a Company Material Contract; (k) make any capital expenditure in excess of Common Stock upon exercise $350,000 individually or $1,000,000 in the aggregate; (l) except as required to comply with any Benefit Plan or Benefit Agreement as in effect on the date of such stock options and this Agreement, (i) increase the compensation or benefits of any Participant (other than, as applied to employees who are not officers of the Company, in the ordinary course of business consistent with past practice), (ii) issuances pay to any Participant any compensation or benefit not provided for under any Benefit Plan or Benefit Agreement (other than the payment of Common Stock on conversion base cash compensation in the ordinary course of business consistent with past practice) (iii) grant any severance, change of control, retention, termination or similar compensation or benefits to any Participant, (iv) adopt, establish, enter into, amend, modify or terminate any Benefit Plan, Benefit Agreement or collective bargaining, employee association, works council or similar agreement, (v) enter into any trust, annuity or insurance Contract or similar agreement, (vi) take any other action to fund or otherwise secure the payment of any Series A Preferred Stock compensation or Convertible Debentures outstanding as benefit or (vii) take any action to accelerate the time of the date hereof; orvesting or payment of any compensation or benefit; (em) acquire forgive any loans to directors, officers or subscribe for shares employees, or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 their respective affiliates; (without taking into account n) pre-pay any long-term debt, or waive, release, pay, discharge or satisfy any liabilities or obligations (absolute, accrued, contingent or otherwise), except (i) in accordance with their terms or (ii) in the price ordinary course of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering)business consistent with past practice; provided, however, that between the date Company shall cause GTN Canada to not repay its intercompany obligation to the Company without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed); (o) make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (p) 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 that involve only the payment of monetary damages (exclusive of insurance proceeds) not in excess of $100,000 individually or $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 Company Subsidiary; (q) make or change any material election with respect to Taxes; adopt or change any material accounting method with respect to Taxes; amend any U.S. federal or other material Tax Return; enter into any private letter ruling, closing agreement or similar ruling or agreement with the IRS or any other Governmental Entity; settle any audit or proceeding with respect to a material amount of Taxes or forego any material Tax refund; (r) write up, write down or write off the book value of any assets, in the aggregate, in excess of $500,000, except for depreciation and amortization in accordance with GAAP consistently applied or in accordance with the ordinary course of business consistent with past practice; (s) convene any regular or special meeting (or any adjournment thereof) of the stockholders of the Company other than a stockholder meeting to approve this Agreement and the Closing Date Merger (if such a meeting is required by applicable Law); (t) fail to keep in force commercially reasonable insurance policies or replacement or revised policies providing insurance coverage with respect to the assets, operations and activities of the Company shall be permitted and the Company Subsidiaries; or (u) authorize or enter into any Contract to sell, lease, transfer or otherwise dispose do any of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000foregoing.

Conduct of Business by the Company Pending the Closing. During AVS and the period from Company covenant and agree that, between the date hereof to the Closing Date the Company will of this Agreement and will cause each of its Subsidiaries (i) to conduct its operations in the ordinary course of business consistent with past practice and (ii) to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The , the business of the Company agrees that it shall not, directly or indirectlybe conducted only in, and it will cause each the Company shall not take any action except in, the Ordinary Course of its Subsidiaries Business. By way of amplification and not limitation, the Company shall not (and AVS shall not permit the Company to), between the date of this Agreement and the Closing Date, except as specifically contemplated by set forth in SCHEDULE 5.1, directly or indirectly, do or propose or agree to do any other provision of this Agreement, unless the Purchaser shall otherwise following without the prior written consent in writingof Kellxxxxx: (a) take sell, pledge, dispose of, encumber, exchange or lease, or authorize the sale, pledge, disposition, exchange or lease of, or grant of an encumbrance on, any action which would (i) be reasonably likely to result of the Purchased Inventory, except sales of inventory in the circumstances described in clauses (i) through (xx) Ordinary Course of Section 3.07(a) or (ii) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the PurchaserBusiness; (b) take purchase any action inventory having a purchase price in excess of Twenty Thousand Dollars ($20,000) per item and One Hundred Thousand Dollars ($100,000) in the aggregate, other than for purchases of inventory for sale to cause the Company's representations and warranties set forth in Article III to be untruean Identified Customer; (c) agree in any way modify or amend any accounting policies or procedures used in the preparation of the Current Balance Sheet; or (d) agree, in writing or otherwise, to take or authorize any of the foregoing actions. In the event that the Company shall desire to take any of the actions described in Sections 5.01(a) and action covered by subparagraph (b) above; , the Company shall request the consent of KAV on any Business Day by speaking with Zivi Nedivi, Fred Xxx Xxxxx xxx Oscax Xxxxxx (dxx any one of them that the Company can reach) except as in person or by telephone at the telephone numbers set forth in Section 5.01(dSCHEDULE 5.1(a) and simultaneously confirming such request by e-mail to each such person at the e-mail addresses set forth on SCHEDULE 5.1(a). In the event that none of the Disclosure Scheduleforegoing persons respond to a request made pursuant to such procedures by 11:59 p.m. of the next Business Day, from KAV shall be deemed to have granted its consent to such request. In the date hereof and prior event that KAV shall respond to any such request (either approving or disapproving of a proposed transaction), it shall thereafter confirm its response by return e-mail to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities sender of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options in the ordinary course of business consistent with past practice pursuant to stock option plans e-mail request and employee benefit schemes existing as of the date hereof and issuances of Common Stock upon exercise of if such stock options and (ii) issuances of Common Stock on conversion of any Series A Preferred Stock or Convertible Debentures outstanding as of the date hereof; or (e) acquire or subscribe for shares or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company response shall be permitted to sella disapproval, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000it shall include a reason therefor.

Conduct of Business by the Company Pending the Closing. During the period The Company agrees that, from the date hereof to of this Agreement through the Closing Date earlier of the time the designees of Parent have been elected to, and shall constitute a majority of, the Company will Board pursuant to Section 1.3 or the date of the valid termination of this Agreement in accordance with Section 7.1, except as set forth in Section 5.1 of the Company Disclosure Schedule or as expressly contemplated 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 of its Subsidiaries the Company Subsidiary to, (i) to conduct its operations only in the ordinary and usual course of business consistent with past practice, (ii) use its commercially reasonable efforts to keep available the services of the current officers, key employees and consultants of the Company and each Company Subsidiary and preserve the goodwill and current relationships of the Company and each Company Subsidiary with customers, suppliers and other Persons with which the Company or the Company Subsidiary has significant business relations, (iii) use its commercially reasonable efforts to preserve substantially intact its business organization, and (iv) comply in all material respects with all applicable Laws. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 5.1 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, the Company shall not (unless required by applicable Law), and shall not permit the Company Subsidiary to, from the date of this Agreement through the earlier of the time the designees of Parent have been elected to, and shall constitute a majority of, the Company Board pursuant to Section 1.3 or the date of the valid termination of this Agreement in accordance with Section 7.1, 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, 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 the 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 the Company Subsidiary, other than 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, 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 Rights and Technology) of the Company or the 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 other than transactions between the Company Subsidiary and the Company; (d) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by the Company Subsidiary to the Company) 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, except for Shares repurchased from employees or former employees of the Company or the Company Subsidiary upon the exercise of repurchase rights pursuant to and in accordance with the terms of an agreement in effect on the date of this Agreement so long as the repurchase price is equal to or less than the Offer Price; (f) merge or consolidate the Company or the 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 the Company Subsidiary; (g) 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 inventory in the ordinary course of business consistent with past practice; (h) incur any indebtedness for borrowed 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 the Company Subsidiary) for borrowed money; (i) make any loans, advances or capital contributions to, or investments in, any other Person (other than the Company Subsidiary), other than advances to employees in respect of travel and other expenses in the ordinary course of business consistent with past practice; (j) terminate, cancel, renew, or request or agree to any material change in 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 consistent with past practice; (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; (l) except to the extent required by (i) applicable Law, (ii) the existing terms of any Company Benefit Plan described in Section 3.12(a) of the Company Disclosure Schedule or (iii) contractual commitments or corporate policies with respect to compensation, severance or termination pay in existence on the date of this Agreement as disclosed in Section 3.12(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 in the ordinary course of business consistent with past practice in salaries or wages of employees (other than officers) of the Company or the Company Subsidiary); (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 the 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) take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan; or (D) terminate the employment of any officer of the Company or the Company Subsidiary; (m) forgive any loans to directors, officers, employees or any of their respective affiliates; (n) (i) pre-pay any long-term debt; (ii) waive, release, 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; (iiiii) to preserve intact its current 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 organizations, keep available the service consistent with past practice; (iv) delay or accelerate payment of any account payable in advance of its current officers and employees and preserve its relationships with customers, suppliers, distributors, lessors, creditors, vendors, contractors and others having business dealings with it with the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall not, directly due date or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the Closing Date, except as specifically contemplated by any other provision of this Agreement, unless the Purchaser shall otherwise consent in writing: (a) take any action which such liability would (i) be reasonably likely to result have been paid in the circumstances described in clauses (i) through (xx) ordinary course of Section 3.07(a) business consistent with past practice; or (iiv) affect the rights of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and vary its inventory practices in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the Purchaserany material respect from past practices; (bo) take make any action to cause the Company's representations and warranties set forth change in Article III to be untrueaccounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (cp) agree to take waive, release, assign, settle or compromise any of the actions described in Sections 5.01(a) and (b) abovematerial claims; (dq) except as set forth in Section 5.01(dcompromise, 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) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereofcompromises, issuances of stock options settlements or agreements in the ordinary course of business consistent with past practice pursuant to stock option plans and employee benefit schemes existing that involve only the payment of monetary damages not in excess of $10,000 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 or the Company Subsidiary; (r) (i) adopt or change its material Tax accounting policies, practices, principles, methods or procedures, or its annual accounting period, except as of the date hereof and issuances of Common Stock upon exercise of such stock options and required by GAAP or applicable law, (ii) issuances make or change any material Tax election, (iii) settle or compromise any Tax liability or enter into any closing agreement or similar agreement or arrangement with respect to Taxes that are material in amount, (iv) enter into any “reportable transaction” as defined in Section 6707A of Common Stock on conversion the Code or (v) consent to any extension or waiver of any Series A Preferred Stock limitation period with respect to any claim or Convertible Debentures outstanding as assessment for Taxes that are material in amount; (s) write up, write down or write off the book value of any assets, in the aggregate, in excess of $50,000, except for depreciation and amortization in accordance with GAAP consistently applied; (t) take any action to exempt or make not subject to (i) the provisions of Section 203 of the date hereofDGCL or (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, 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; (u) take any action that is intended or would reasonably be expected to result in any of the conditions to 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 a stockholder meeting to adopt this Agreement and approve the Merger (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 Subsidiary as are currently in effect; (x) authorize or enter into any Contract or otherwise make any commitment to do any of the foregoing; or (ey) acquire pay a premium or subscribe for shares any excess or securities in any company or acquire any business or invest in any joint venture, in each case other than acquisitions or subscriptions for shares or securities in connection with a Conversion Offering bonus payment above standard rates and fees to the extent that the aggregate price of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition counsel, accountants, investment bankers, financing sources, experts or subscription of such further shares or securities within 30 days of the relevant Conversion Offering purchased solely using the proceeds of sale of the same class of shares or securities acquired or subscribed in such Conversion Offering); provided, however, that between the date of this Agreement and the Closing Date the Company shall be permitted to sell, lease, transfer or otherwise dispose of any sale of Conversion Offering Stock permitted under Section 5.01(e) to the extent that the aggregate sale price of all such stock sold does not exceed $1,000,000consultants.

Conduct of Business by the Company Pending the Closing. During the period from Seller covenants and agrees that, between the date hereof of this Agreement and the earlier to occur of the Closing Date and the termination of this Agreement pursuant to its terms, unless Buyer shall otherwise specifically consent in writing in advance (provided that such consent shall only be requested and provided if consistent with applicable Law and provided further that such consent shall not be unreasonably withheld, conditioned or delayed), or unless otherwise expressly provided for by this Agreement, Seller shall cause the Company will and will cause each of its Subsidiaries to (i) to conduct its operations business only in the ordinary course of business and in a manner consistent with past practice and (ii) conduct its business in compliance with all applicable Laws and Orders. Seller shall cause the Company to use its commercially reasonable efforts to (A) preserve intact the business organization and assets and Intellectual Property of the Company, (B) keep available the services of the Company’s present officers, employees, consultants, sales representatives, distributors and sales agents (other than terminations in the ordinary course of business consistent with past practice practice), (C) maintain in effect Material Contracts (other than those Material Contracts that expire in accordance with their terms or terminations expressly provided for by this Agreement), and (iiD) to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its Company’s present relationships with advertisers, publishers, sponsors, customers, licensees, suppliers, distributorssales representatives, lessorsdistributors and other Persons with which the Company has business relations. By way of amplification and not limitation, creditors, vendors, contractors and others having business dealings with it with Seller shall cause the intention that its goodwill and ongoing business shall be unimpaired at the Closing Date. The Company agrees that it shall to not, directly or indirectly, and it will cause each of its Subsidiaries not to, between the date of this Agreement and the earlier to occur of the Closing Date, except as specifically contemplated by any other provision and the termination of this AgreementAgreement pursuant to its terms, directly or indirectly do, or propose to do, any of the following without the prior written consent of Buyer (provided that such consent shall only be requested and provided if consistent with applicable Law and provided further that such consent shall not be unreasonably withheld, conditioned or delayed), unless otherwise expressly provided for by this Agreement or otherwise expressly set forth in Section 6.1 of the Purchaser shall otherwise consent in writingSeller Disclosure Schedule: (a) take amend or otherwise change the Charter or Bylaws or alter through merger, liquidation, reorganization, reclassification, recapitalization, restructuring or in any action which would (i) be reasonably likely to result in other fashion the circumstances described in clauses (i) through (xx) of Section 3.07(a) corporate structure or (ii) affect the rights capital structure or ownership of the Purchaser under the Certificate of Amendment, assuming for purposes of this clause (ii) that the Closing had occurred, it being understood that the actions permitted by, and in accordance with, Section 5.01(d) shall not be deemed to materially affect such rights of the PurchaserCompany; (b) take (i) issue, grant, sell, transfer, deliver, pledge, promise, dispose of or encumber, or authorize the issuance, grant, sale, transfer, deliverance, pledge, promise, disposition or encumbrance of, or alter or modify the terms of rights or obligations under any action shares of capital stock of any class or series (common or preferred) or securities or other instruments (including notes or other evidences of Indebtedness) convertible into, or subscription rights, options or warrants to cause acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible instruments or securities or any other ownership interest or stock-based rights of the Company's representations and warranties set forth in Article III to be untrue, (ii) adopt, ratify or effectuate a stockholders’ rights plan or agreement or similar plan or Contract, or (iii) redeem, purchase or otherwise acquire, directly or indirectly, any of the capital stock of the Company; (c) agree to take any of the actions described in Sections 5.01(a) and (b) above; (d) except as set forth in Section 5.01(d) of the Disclosure Schedule, from the date hereof and prior to the Closing Date (the "Blackout Period"), issue or sell any equity securities or securities exercisable or convertible into equity securities of the Company or any Company Subsidiary, other than (i) issuances of Common Stock upon the exercise of stock options outstanding as of the date hereof, issuances of stock options other than cash dividends or other cash distributions to Seller in the ordinary course of business consistent with past practice pursuant to practice, declare, set aside or pay any dividend or other distribution (whether in cash, stock option plans and employee benefit schemes existing as or property or any combination thereof) in respect of the date hereof and issuances any of Common Stock upon exercise of such stock options and its capital stock, (ii) issuances split, combine or reclassify any of Common Stock on conversion its capital stock, (iii) effect a recapitalization; issue or authorize the issuance of any Series A Preferred Stock other securities in respect of, in lieu of or Convertible Debentures outstanding as in substitution for, shares of its capital stock, or (iv) amend the terms of, repurchase, redeem or otherwise acquire, directly or indirectly, any of its securities; (d) sell, transfer, assign, lease, sublease, license, sublicense, mortgage, pledge, encumber, impair or otherwise dispose of (in whole or in part), or create, incur, assume or cause to be subjected to any Lien on, any of the date hereof; orassets, properties or securities of the Company (including any Intellectual Property or accounts receivable), except for the sale of inventory in the ordinary course of business consistent with past practice; (ei) acquire (by merger, consolidation, acquisition of stock or subscribe for shares assets or securities in otherwise) or organize or form any company or acquire any business or invest in any corporation, limited liability company, partnership, association, joint venture, in each case trust or other entity or Person or any business organization or division thereof, or (ii) acquire any rights, assets or properties other than acquisitions in the ordinary course of business consistent with past practice; (f) (i) incur or subscriptions modify any Indebtedness or issue any debt securities or any warrants or rights to acquire any debt security, (ii) assume, guarantee or endorse or otherwise become responsible for, the obligations of any other Person, (iii) enter into any off-balance sheet financing arrangement or any accounts receivable or payable financing arrangement, or (iv) make any loans, advances or enter into any other financial commitments other than advances of reasonable expenses to employees in the ordinary course of business consistent with past practice; (g) authorize or make any capital expenditures outside of the ordinary course of business consistent with past practice, or in excess of $100,000; (i) increase, accelerate or provide for shares additional compensation or securities in connection with a Conversion Offering fringe benefits of, or grant, agree to grant, pay or otherwise make payable any incentive, bonus or similar compensation or rights, to any present or former director, officer, employee, consultant, sales representative, distributor or agent of the extent that the aggregate price Company, (ii) grant any severance, retention, continuation or termination pay to any present or former director, officer, employee, consultant, sales representative, distributor or agent of all such acquisitions or subscriptions by the Company and any of its Subsidiaries does not exceed $1,000,000 (without taking into account the price of any acquisition or subscription of such further shares or securities within 30 days outside of the relevant Conversion Offering purchased solely using the proceeds ordinary course of sale business consistent with past practice, (iii) loan or advance any money or other property to any present or former director, officer, employee, consultant, sales representative, distributor or agent of the same class Company (except for advances of shares business expenses in the ordinary course of business consistent with past practice), (iv) establish, adopt, enter into, amend or securities acquired terminate any Employee Plan or subscribed any plan, agreement, program, policy, trust, fund or other arrangement that would be an Employee Plan if it were in such Conversion Offering); provided, however, that between existence as of the date of this Agreement and (except as may otherwise be required pursuant to Applicable Law), (v) terminate or lay off any executive or management employee or key employee (except for termination for “cause”), or (vi) grant any equity or equity-based awards or stock-based rights; (i) fail to give any notices or other information required to be given to the Closing Date employees of the Company, any collective bargaining unit representing any group of employees of the Company shall or any applicable Governmental Authority under the WARN Act, the National Labor Relations Act, the Code, COBRA, or other applicable Law in connection with the Contemplated Transactions; (j) hire or retain, or continue to retain or employ, any employee or consultant having access to confidential or proprietary information of the Company unless such employee or consultant enters into, or has entered into, a proprietary information and inventions agreement in the form customarily used by the Company or an agreement containing substantially similar and no less restrictive confidentiality and inventions assignment provisions, or amend or otherwise modify, or grant a waiver under, any such confidentiality or proprietary information agreement with any such Person; (k) change any accounting or cash management policies, procedures or practices used by the Company (including with respect to reserves, revenue recognition, timing for payments of accounts payable and collection of accounts receivable) unless required by a change in Law or GAAP; (l) (i) enter into any Contract that if entered into prior to the date hereof would be permitted to sella Material Contract other than in the ordinary course of business consistent with the past practices of the Company and not exceeding $50,000, lease(ii) modify, amend, extend or supplement in any material respect, transfer or terminate any Material Contract or waive, release or assign any rights or Claims thereto or thereunder other than in the ordinary course of business consistent with the past practices of the Company and not exceeding $50,000, (iii) enter into or extend any lease or sublease with respect to Real Property with any third party, (iv) modify, amend or transfer in any way or terminate any license agreement, standstill or confidentiality agreement with any third party, or waive, release or assign any rights or Claims thereto or thereunder, (v) enter into any agreement or arrangement that limits or otherwise dispose restricts or that could by its terms be reasonably expected to restrict the Company or its Affiliates or successors or that by its terms could, after the Effective Time, limit or restrict Buyer or any of its respective Subsidiaries or Affiliates or successors thereto, from engaging or competing in any line of business or in any geographic area, (vi) enter into or amend any agreement pursuant to which any other party is granted manufacturing, marketing or other development or distribution rights of any sale type or scope with respect to any Product or any of Conversion Offering Stock permitted under the Company’s technologies or (vii) enter into, modify, amend or supplement any Contract to provide exclusive rights or obligations or any non-competition or similar obligations or restrictions; (i) make or change any Tax election or change any method of tax accounting, (ii) settle or compromise any federal, state, local or foreign Tax liability, (iii) file any amended Tax Return, (iv) enter into any closing agreement relating to any Tax, (v) agree to an extension or waiver of any limitation period applicable to any claim or assessment in respect of Taxes, or (vi) surrender any right to claim a Tax refund; (n) enter into any operating leases; (o) except as required by Law, modify or change in any material respect any existing permit or operating license listed in Section 5.01(e4.7(c) of the Seller Disclosure Schedule; (p) pay, discharge, satisfy or settle any Claim or waive, assign or release any material rights or claims, except any Claim which settlement would not impose any injunctive or similar Order on the Company or restrict in any way the business of the Company, or exceed $50,000 in cost, liability or value to the Company; (q) commence, join, make an appeal with respect to or settle a lawsuit, action, Claim or similar proceeding other than (i) for the routine collection of bills, (ii) to enforce its rights with respect to Intellectual Property, (iii) in such cases where Seller in good faith determines that failure to commence suit would result in the extent material impairment of a valuable aspect of its business, provided, that Seller consults with Buyer prior to the aggregate sale price Company filing or taking of any action with respect to such lawsuit, action, Claim or similar proceeding, or (iv) pursuant to this Agreement; (r) engage in, enter into or modify or amend any Contract, transaction, Indebtedness, commitment or other arrangement with, directly or indirectly, any of the directors, officers, employees, consultants, agents, or other Affiliates of the Company, or any of their respective Affiliates or family members, other than offer letters and other standard documents, in the Company’s forms (and not providing any rights to severance or similar payments), which have been provided to Buyer, with any new employees or consultants hired or retained after the date of this Agreement; (s) fail to maintain in full force and effect all self-insurance and insurance, as the case may be, currently in effect, except that existing policies may be replaced by new or successor policies of substantially similar coverage and at a substantially similar cost; (t) commence any proceeding for any voluntary liquidation, dissolution, or winding up of the Company, including but not limited to initiating any bankruptcy proceedings on its behalf; (u) fill any orders for, or conduct any further business with, any third parties that are subject to a United States trade embargo; (v) take any action if such stock sold does not exceed $1,000,000action would or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; (w) fail to maintain in full force and effect all material permits, licenses, registrations, certificates, orders, clearances or approvals held by the Company; or (x) authorize any of the foregoing, or agree or enter into or amend any Contract or commitment to do any of the foregoing.