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

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company), from the date of this Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its business in the ordinary course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (ii) use commercially reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers, key employees and key independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with them. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, 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 of its Subsidiaries to, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend the Company’s certificate of incorporation or bylaws or similar governing documents, or materially amend or propose to materially amend any of the Company’s

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the The Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company)covenants and agrees that, from between the date of this Agreement to and the Effective Time, except as set forth in Section 5.1 of the Company shallDisclosure Schedule or as expressly required or expressly permitted by any other provision of this Agreement, unless Parent will otherwise agree in writing (which agreement will not be unreasonably withheld, delayed or conditioned), the Company will, and shall will cause each of its Subsidiaries Company Subsidiary to, (i) conduct its business operations in all material respects in the ordinary course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (ii) use its commercially reasonable efforts to (A) preserve intact their respective its present business organizations and goodwillorganization, (B) keep available the services of their respective its present officers, key officers and employees and key independent contractors, and (C) preserve the goodwill and business its relationships with customers, suppliers, distributors, licensors, licensees and others having with which it has material business relationships dealings in the ordinary course of business consistent with thempast practice. In addition, and without Without limiting the generality of the foregoing, and as an extension thereof, except for matters as set forth in Section 6.01 5.1 of the Company Disclosure Letter Schedule or otherwise as expressly required or expressly permitted by any other provision of this Agreement, from the date of this Agreement to the Effective Time, the Company shall will not (unless required by applicable Law or the regulations or and requirements of any stock exchange or regulatory organization applicable to the CompanyNASDAQ), and shall will not permit any Company Subsidiary to (unless required by applicable Law or the regulations and requirements of its Subsidiaries toNASDAQ), do 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, Parent (which consent shall will not be unreasonably withheld withheld, delayed or delayed:conditioned): (a) amend or otherwise change the Company Memorandum, the Company Bye-Laws, or the memorandum of association or bye-laws or equivalent organizational documents of the Company Subsidiaries; (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 share capital 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 share capital or other Equity Interests, or any Company Options, Company RSUs or other options, warrants or other rights of any kind to acquire any shares of such share capital or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including any such interest represented by Contract right), of the Company or any Company Subsidiary, other than (i) subject to Section 2.4(d) hereof, the issuance of Common Shares pursuant to Company ESPP Rights under the Company ESPP, (ii) the issuance of Common Shares upon the vesting of Company RSUs or upon the exercise of Company Options, in each case, that are disclosed in Section 3.2(d) of the Company Disclosure Schedule in accordance with the terms of those Company Options and Company RSUs on the date of this Agreement, and (iii) if a Trigger Event (as defined in the Company Rights Agreement) by a Person other than Parent or the Purchaser will occur, the Company Rights or the issuance of Common Shares in exchange thereof; (c) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber any material property or assets of the Company or any Company Subsidiary, except (i) pursuant to Contracts in effect prior to the date hereof, or (ii) pursuant to the sale, purchase or licensing of inventory, raw materials, equipment, goods, or other supplies 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, shares, stock, property or a combination thereof) with respect to any of its share capital (other than (i) dividends paid by a wholly-owned Company Subsidiary to the Company or another wholly-owned Company Subsidiary and (ii) quarterly cash dividends declared and paid by the Company in the ordinary course of business consistent with past practice in amounts not to exceed, with respect to each quarter, $0.08 per Share) or enter into any agreement with respect to the voting or registration of its share capital; (e) reclassify, consolidate, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its shares, other Equity Interests or any other securities, or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for its shares or other securities other than the exchange of the Company Rights pursuant to the Company Rights Agreement after a Trigger Event (as defined in the Company Rights Agreement) by a Person other than Parent or the Purchaser; (f) amalgamate, merge or consolidate the Company or any Company Subsidiary with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary, or otherwise enter into any agreements or arrangements imposing material restrictions on the assets, operations or businesses of the Company or any Company Subsidiary; (g) acquire (including by amalgamation, merger, consolidation, or acquisition of shares, stock or assets) any interest in any Person or any division thereof or any assets, other than acquisitions of assets (including the purchase of inventory, raw materials, equipment, goods, or other supplies) in the ordinary course of business; (h) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than a wholly-owned Company Subsidiary) for borrowed money other than extensions of credit to customers of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; (i) make any loans, advances, guarantees or capital contributions to, or investments in, any other Person (other than any wholly-owned Company Subsidiary), except that (i) loans and advances to Service Providers and (ii) extensions of credit to customers of the Company or any Company Subsidiary shall be permitted to the extent they are in the ordinary course of business and consistent with past practice; (j) except as required by Law, enter into, terminate (other than automatic terminations in accordance with its terms), cancel or amend in any material respect adverse to the Company any Company Material Contract, or cancel, modify or waive any material rights thereunder; (k) except to the extent required by (i) applicable Law or (ii) the existing terms of any Company Benefit Plan disclosed under Section 3.12(a) of the Company Disclosure Schedule that does not provide for change of control, severance, or equity compensation rights or benefits or by the terms of this Agreement: (A) decrease, increase or amend in any manner the compensation payable or to become payable to any Service Provider, except for changes in the compensation payable or to become payable to any Service Provider that do not result in changes in the aggregate payroll of the payroll of the Company of more than $3,000,000 and that do not result in changes to any individual’s compensation by more than five percent relative to such individual’s compensation on the date hereof; (B) hire, terminate or change the status of any officer or key employee of the Company other than for cause or grant any additional rights to change of control, retention, severance or termination pay or benefits to, or enter into any severance agreement with, any Service Provider; (C) amend, enter into or adopt any new, terminate or suspend any Company Benefit Plan, any collective bargaining agreement, or services or vendor agreement for any material Company Benefit Plan; (D) take any action to amend, waive or accelerate the vesting criteria or vesting requirements of payment of any compensation or benefit under any Company Benefit Plan, including, but not limited to, a Company Option or Company RSU, or remove any existing restrictions in any Company Benefit Plans or awards made thereunder or extend the exercisability of any Company Option; or (E) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or applicable Law; (l) forgive any loans to Service Providers or any of their respective affiliates; (m) compromise, settle or agree to settle any Proceeding (including any Proceeding relating to this Agreement or the transactions contemplated hereby) other than compromises, settlements or agreements that involve only the payment of monetary damages not in excess of U.S. $250,000 individually or U.S. $1,000,000 in the aggregate, in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any Company Subsidiary; (n) (i) make, change, or rescind any material Tax election, (ii) file any income or other material Tax Return or any income or other material amended Tax Return of the Company or any of the Subsidiaries, (iii) adopt or change any material method or period of Tax accounting, (iv) settle or compromise any material Liability for Taxes or (v) consent to any extension or waiver of any limitation period with respect to any material claim or assessment for Taxes; (o) amend or modify, or propose to amend the Company’s certificate of incorporation or bylaws or similar governing documentsmodify, or otherwise take any action under the Company Rights Agreement unless a Trigger Event (as defined in the Company Rights Agreement) by a Person other than Parent or the Purchaser has occurred; (p) enter into any agreement to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or materially amend alter, amend, modify, violate or propose to materially amend terminate any of the Company’sterms of any Company Leases; (q) authorize, incur or commit to incur any capital expenditure(s) with obligations to the Company or any of the Company Subsidiaries in any month in excess of U.S. $250,000 individually or U.S. $1,000,000 in the aggregate. (r) except as required as a result of change in GAAP or applicable Laws, make any change in any of the accounting principles, methodologies or practices used by it; or (s) authorize or enter into any Contract or otherwise make any commitment, in each case to do any of the foregoing in clauses (a) through (r).

Conduct of Business by the Company Pending the Closing. Except for matters The Company agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 6.01 5.1 of the Company Disclosure Letter Schedule, as permitted or otherwise expressly permitted contemplated by any other provision of this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange the Nasdaq, unless Parent shall otherwise agree in writing (which shall not be unreasonably withheld or regulatory organization applicable to the Companydelayed), from the Company will, and will cause each Company Subsidiary to, (A) conduct its operations in the ordinary course of business substantially consistent with past practice and (B) use its reasonable best efforts to preserve substantially intact its business organization, goodwill and present relationships with its material customers, material suppliers, key employees and regulatory authorities. Without limiting the foregoing, except as set forth in Section 5.1 of the Company Disclosure Schedule, as permitted or contemplated by any other provision of this Agreement or as required by applicable Law, a Governmental Authority or the regulations or requirements of Nasdaq, the Company shall not, and shall not permit any Company Subsidiary to, between the date of this Agreement to 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 or delayed): Section 5.1.1 amend its articles of incorporation or bylaws or equivalent organizational documents; Section 5.1.2 issue or authorize the issuance of any shares of capital stock of, or other Equity Interests in, the Company shallor securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, and shall cause each 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, other than the issuance of Company Common Stock in connection with salary stock arrangements in effect on the date of this Agreement (which may be continued at their current levels through the Effective Time at the Company’s sole discretion), or upon the exercise of Company Options or warrants outstanding on the date hereof (including the TARP Warrant) or the settlement of Company RSUs outstanding on the date hereof; Section 5.1.3 sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets of the Company or any Company Subsidiary, except in the ordinary course of business; Section 5.1.4 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 Subsidiaries tocommon 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 5.1.5 other than in the case of a wholly owned Company Subsidiary, reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly (other than cashless exercises of Company Options or the TARP Warrant or repurchases of Company Restricted Stock or shares issued upon vesting and settlement of Company RSUs), any of its capital stock, other Equity Interests or other securities; Section 5.1.6 acquire (including by merger, consolidation, or acquisition of stock or assets) any Equity Interest in any person or all or substantially all of the assets of any person, other than incident to foreclosures in connection with debts previously contracted in good faith; Section 5.1.7 make any change in accounting policies or procedures, except as required by GAAP or Governmental Authority; Section 5.1.8 take any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; Section 5.1.9 take any action that would be reasonably likely to delay the effectiveness of the Registration Statement; Section 5.1.10 make, change or rescind any Tax election, change a Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any Tax closing agreement, settle any Tax claim or assessment relating to the Company or any Company Subsidiaries, surrender any right to claim a refund of Taxes, consent to extension or waiver of the statute of limitations applicable to any Tax, or take any similar action; Section 5.1.11 settle or compromise any pending or threatened suit, action or claim (i) conduct its relating to the transactions contemplated hereby, (ii) that places any material prohibitions or restrictions on the business or operations of the Company or any Company Subsidiary, or (iii) would require payment by the Company or any Company Subsidiary of an amount greater than $200,000, in the aggregate, per suit, action or claim in excess of applicable insurance coverage or specific loss reserves reflected on the balance sheet of the Company included in the Quarterly Report on Form 10-Q of the Company for the quarter ended June 30, 2012, as filed with the SEC on August 6, 2012; Section 5.1.12 (A) incur, assume or prepay (provided that such prepayment triggers a penalty, additional cost or expense or loss to the Company or any Company Subsidiary) any long-term or short-term debt or issue any debt securities except for borrowings or prepayments under existing lines of credit or in the ordinary course of business and refinancing of existing indebtedness (it being understood that incurrence or prepayment of indebtedness in the ordinary course of business of the Company Bank includes deposits, FHLB borrowings, repurchase agreements and similar liabilities in the ordinary course of the Company Bank’s business consistent with past practice); or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any material obligations of any other person, except for obligations of the Company or any wholly owned Company Subsidiary incurred in compliance with clause (A); Section 5.1.13 (A) except as may be required by Law or by the terms of such Company Benefit Plan as in existence on the date hereof, enter into (other than renewals of existing Company Benefit Plans in the ordinary course of business and consistent with past practice that do not result in material increased cost or liability to the Company or any Company Subsidiary), adopt, amend (except to comply with, conform to or secure an exemption from the requirements of Section 409A of the Code, but only to the extent that such Section 409A-related actions do not result in increased cost or liability to the Company or any Company Subsidiary (or Parent or any Parent Subsidiary following the Effective Time), other than immaterial administrative costs in connection with the taking of such actions or terminate any Company Benefit Plan, or change any actuarial assumptions related thereto; (B) increase in any manner the compensation or benefits of any current or former director, employee or consultant, except (i) for normal increases in the ordinary course of business consistent with past practice (includingthat do not exceed, without limitationin the aggregate on an annualized basis, preparing for and conducting an audit 2.3% of the Company’s financial statements compensation and benefits costs for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (ii) use commercially reasonable efforts twelve month period prior to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers, key employees and key independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with them. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement or (ii) as required under any existing Company Benefit Plan; (C) accelerate, amend or change the period of exercisability or vesting of any award under any Company Stock Plan, or authorize cash payments in exchange for any such award; (D) establish, adopt or enter into any collective bargaining agreement or other contract or work rule or practice with any labor union or organization; (E) fund (or agree to fund) any compensation or benefits under any Company Benefit Plan, including through a “rabbi” or similar trust; or (F) hire (or agree to hire) any employee who would have an annual base salary in excess of $120,000; provided, however, that all compensation and benefits shall be subject to the Effective Time, 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)limitations resulting from, and shall be in compliance with applicable Law, including those limits imposed due to the ownership of the TARP Preferred Stock by UST; (i) except in the ordinary course of business, enter into, modify, amend or terminate any Company Material Contract or waive, release, compromise or assign any material rights or claims, or (ii) enter into, modify or amend any Contract of the sort specified in Section 3.12(c) or (f); Section 5.1.15 enter into any material new line of business or change in any material respect its lending, investment, risk and asset liability management, interest rate or fee pricing with respect to depository accounts, hedging and other material banking or operating policies, except in the ordinary course of business consistent with past practice or as required by Law or a Governmental Authority; Section 5.1.16 make, or commit to make, any capital expenditures not permit provided for in the capital expenditure budget previously disclosed to Parent and in excess of $100,000 individually or $500,000 in the aggregate; Section 5.1.17 except as required by Law or applicable regulatory authorities, make any material changes in its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service loans; Section 5.1.18 make a loan in material violation of, or otherwise fail to comply in all material respects with, the underwriting and credit policies of the Company and the Company Subsidiaries as they are in effect as of the date hereof; Section 5.1.19 restructure or materially change its Subsidiaries toinvestment securities portfolio or its gap position, through purchases, sales or otherwise, or its policies with respect to the classification or reporting of such portfolios; or Section 5.1.20 authorize or enter into any agreement or otherwise make any commitment to do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend the Company’s certificate of incorporation or bylaws or similar governing documents, or materially amend or propose to materially amend any of the Company’sforegoing.

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the The Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company), from agrees that between the date of this Agreement to and the Effective TimeTime 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, (b) as required or expressly permitted pursuant to this Agreement (including pursuant to Section 5.2), (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 each of its the Company Subsidiaries to, (i) conduct its businesses in all material respects in the ordinary course consistent with past practice (ii) use commercially reasonable efforts to maintain and preserve intact its business organization. Without limiting the generality of the foregoing, except (w) as set forth in Schedule 5.1, (x) as required pursuant to or expressly permitted by this Agreement, (y) as required by Law or (z) as consented to in writing by Parent (which consent, other than with respect to clauses (c), (d), (e) and (h) hereof, 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) amend its certificate of incorporation or bylaws or equivalent organizational documents, waive any provisions of such, or enter into any agreement with any of its stockholders in their capacities as such; (b) split, combine, subdivide or reclassify any shares of capital stock of the Company or any of its other securities, or otherwise amend the terms of the capital stock of the Company; (c) except for the next regular quarterly dividend, if and when declared by the Board of Directors consistent with past practice in timing and not to exceed $0.19 per share, 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 or any Company Subsidiary’s capital stock; (d) directly or indirectly redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, or encumber, any Equity Interests, except (i) from holders of Company Options or SARs in full or partial payment of the exercise price and any applicable Taxes payable by such holder upon exercise of the Company Options or SARs to the extent required or permitted under the terms of such Company Options or SARs (ii) from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares at their original issue price in connection with the terms thereof that have been provided or made available to Parent prior to the date hereof or (iii) pursuant to the terms of the indenture governing the 2036 Convertible Notes; (e) 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 SARs under the Company Equity Plans 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 exercise of the Company Options or SARs outstanding as of the date hereof, (ii) the grant of Company Options or SARs pursuant to previously existing contractual arrangements of the Company, (iii) the grant of Company Options to employees of the Company after the date hereof in the ordinary course of business consistent with past practice practice; (including, without limitation, preparing for and conducting an audit iv) the issuance of Shares pursuant to the terms of the Company’s financial statements 2036 Convertible Notes; and (v) the issuance of shares to Parent or Purchaser upon the exercise of the Top-Up Option; (f) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or any series of related transactions any Person, any Equity Interests in any Person or any business or division of any Person or any of the assets of any Person (or business or division thereof), in each case that is material to the Company or for consideration in excess of $5 million in the fiscal year ending December 31aggregate; (g) transfer, 2005 lease, license, sell, mortgage, pledge, dispose of, or encumber any of its Intellectual Property or material assets, other than (i) sales, leases and licenses in a manner the ordinary course of business consistent with past practice), (ii) dispositions of assets no longer used in the operation of the business, and (iiiii) use commercially reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services factoring of their respective present officers, key employees and key independent contractors, and preserve the goodwill and business relationships accounts receivable consistent with customers, suppliers, licensors, licensees and others having business relationships with them. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, 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 of its Subsidiaries to, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed:past practice; (ah) (i) amend incur or propose to amend assume or modify the terms of any long-term or short-term Indebtedness, except for borrowings under the Company’s certificate existing revolving credit facility not to exceed $50,000,000 or issue any debt securities; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of incorporation any other Person that is not an affiliate of the Company for borrowed money; (iii) make any loans, advances or bylaws or similar governing documentscapital contributions to, or materially amend or propose to materially amend investments in, any of the Company’sother Person;

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the The Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company)agrees that, from between the date of this Agreement to and the Effective Time, except as set forth in Section 5.1 of the Company shallDisclosure Schedule or as permitted or required by any other provision of this Agreement, unless Parent shall otherwise agree in writing (which agreement shall not be unreasonably withheld, delayed or conditioned), the Company will, and shall will cause each of its Subsidiaries Company Subsidiary and direct CPS to, (i) conduct its operations only in the ordinary and usual course of business and comply in all material respects with all applicable Laws and the requirements of all Company Permits, (ii) make all appropriate voluntary disclosures to Governmental Entities in respect of any violation of Law that could reasonably be expected to result in a Company Material Adverse Effect, and (iii) use commercially reasonable efforts to (A) maintain and preserve its business organization, assets, intangibles and properties and preserve the goodwill of its business relationships with customers, suppliers and others having substantial business dealings with it, (B) retain the services of its current officers and key employees, and (C) keep in full force and effect all insurance policies, other than in each case such changes made in the ordinary course of business consistent with past practice. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 5.1 of the Company Disclosure Schedule or as permitted or required by any other provision of this Agreement, the Company shall not (unless required by applicable Law), and shall not permit any Company Subsidiary to, and direct CPS not 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, 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, any Company Subsidiary or CPS 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, any Company Subsidiary or CPS, other than (i) the issuance of Common Shares upon the conversion of Company Preferred Stock or the exercise of Company Options or Company Warrants outstanding as of the date hereof in accordance with their terms and (ii) the issuance of Company Options and Restricted Stock in amounts consistent with past practice to newly hired or promoted employees, newly engaged consultants or consultants whose responsibilities have been materially expanded; provided, that in the case of clause (ii), the total shares of Company Common Stock issued or to be issued pursuant to such Company Options or Restricted Stock awards does not exceed 10,000 shares of Company Common Stock in the aggregate; (c) sell, pledge, dispose of, exit, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, exit, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property Rights and real property) of the Company, any Company Subsidiary or CPS, except pursuant to existing contracts or commitments or the sale or purchase of goods or services in the ordinary course of business consistent with past practice, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly-owned Company Subsidiary and the Company or another wholly-owned Company Subsidiary; (d) declare, set aside, 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 another wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting or registration of its capital stock; (e) reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or any other securities; (f) 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 (including real property), other than acquisitions of inventory or assets in the ordinary course of business for consideration that is individually not in excess of $750,000, or in the aggregate not in excess of $3,000,000; (g) 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 Company Subsidiary) for borrowed money, except (i) in connection with refinancings of existing indebtedness at the maturity thereof, or (ii) for borrowings under the Company’s existing credit facilities; (h) make any material loans, advances (other than routine advances to employees of the Company, CPS or the Company Subsidiaries in the ordinary course of business consistent with past practice) or capital contributions to, or investments in (by property transfers, purchase of securities or otherwise), any Person, other than a Company Subsidiary; (i) except as required by the terms of any Company Benefit Plan or other Contract in effect on the date hereof, (A) increase the compensation or benefits payable to its employees (other than officers), except for increases in salaries or wages in the ordinary course of business consistent with past practices; (B) increase the compensation or benefits payable to its directors or officers; (C) grant any severance or termination pay, except as otherwise required by Law; or (D) adopt, enter into, establish, amend, modify or terminate any awards under any material bonus, incentive, performance or other compensation plan or arrangement or benefit plan, including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, profit-sharing, health or welfare, stock option or other equity (or equity-based) pension, retirement, vacation, severance, deferred compensation or other compensation or benefit plan (including any plan that would constitute a Company Benefit Plan), policy, agreement, trust, fund or arrangement with, for or in respect of, any shareholder, director, officer, other employee, consultant or Affiliate, except to reflect changes in Law and plan administration; (j) make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (A) except as required by Law or the Treasury Regulations promulgated under the Code, make any change (or file any such change) in any method of Tax accounting for a material amount of Taxes, or (B) make or change any material tax election or settle or compromise any material liability for Taxes, file any amended Tax Return involving a material amount of additional Taxes (except as required by Law), or waive or extend the statute of limitations in respect of Taxes (other than pursuant to extensions of time to file Tax Returns), other than, in each case, in the ordinary course of business and consistent with past practice; (l) initiate, compromise or settle any litigation, proceeding or investigation that is material to the Company, CPS or the Company Subsidiaries taken as a whole (other than in connection with the enforcement of the Company’s rights under this Agreement), other than settlements or compromises of litigation (A) where the amount paid does not exceed $500,000 and (B) that do not involve equitable relief or admission of wrongdoing or misconduct; (m) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction in the ordinary course of business of liabilities, claims or obligations reflected or reserved against on the Company Financial Statements (or in the notes thereto) or incurred since the June 30, 2010 in the ordinary course of business consistent with past practice or in connection with the transactions contemplated hereby; (includingn) enter into any Company Material Contract or any Company Permit, without limitation, preparing for and conducting an audit or terminate or amend any Company Material Contract or Company Permit (other than amendments entered into in the ordinary course of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner business consistent with past practice), or (ii) except as permitted by Section 5.4, release any Person from, or modify or waive any provision of, any confidentiality, standstill or similar agreement; (o) make any capital expenditures, other than (i) capital expenditures covered by capital expenditure budgets previously delivered to Parent and (ii) use commercially reasonable efforts capital expenditures not in excess of $750,000 in the aggregate for the Company and the Company Subsidiaries taken as a whole during any three-month period; (p) take any action that is intended or would reasonably be expected to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers, key employees and key independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with them. In addition, and without limiting the generality result in any of the foregoing, except for matters conditions to the Offer set forth in Section 6.01 of Annex I or the Company Disclosure Letter conditions to the Merger set forth in Article 6 not being satisfied; or (q) authorize or enter into any Contract or otherwise expressly permitted by this Agreement, from the date of this Agreement make any commitment to the Effective Time, 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 of its Subsidiaries to, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend the Company’s certificate of incorporation or bylaws or similar governing documents, or materially amend or propose to materially amend any of the Company’sforegoing.

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the The Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company)agrees that, from between the date of this Agreement to and the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Section 7.1 (the “Pre-Closing Period”), except as set forth in Section 5.1 of the Company Disclosure Schedule or as expressly and 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 shallwill, and shall will cause each of its Subsidiaries Company Subsidiary to, (ia) conduct its business in all material respects in the ordinary course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice)course, and (iib) use commercially reasonable efforts to preserve intact their respective its business organizations organization, goodwill and goodwillassets and maintain its rights, Company Permits, franchises and existing relations with customers, suppliers, employees, Governmental Entities, lessors and business associates and keep available the services of their respective the Company’s and the Company Subsidiaries’ present officers, key employees and key independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with themagents. In addition, and without Without limiting the generality of the foregoing, except for matters as set forth in Section 6.01 5.1 of the Company Disclosure Letter Schedule or otherwise as expressly and specifically permitted by any other provision of this Agreement, from the date of this Agreement to the Effective Time, the Company shall not (unless required by applicable Law or the regulations or requirements of any stock exchange the Exchange or regulatory organization applicable to the Company), and shall not permit any of its Subsidiaries Company Subsidiary to, do during the Pre-Closing Period, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent, Parent (which consent shall not be unreasonably withheld withheld, conditioned or delayed:): (a) amend or otherwise change or propose any change to the Company Certificate or the Company By-laws; (b) merge or consolidate the Company or any Company Subsidiary with any other Person, except for any such transactions among wholly-owned Company Subsidiaries, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses; (c) acquire assets outside of the ordinary course of business from any other Person in any transaction or series of related transactions, other than acquisitions pursuant to Contracts as in effect as of the date of this Agreement; (d) (i) amend issue, sell, pledge, dispose of, grant, transfer, encumber, or propose 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 or 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 amend acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including any such interest represented by contract right), of the Company or any Company Subsidiary, other than (A) the issuance of shares of Company Common Stock upon the exercise of Company Options or the vesting of Company RSU Awards, outstanding as of the date hereof in accordance with their terms, or (B) pursuant to the Company ESPP subject to Section 2.7 or (ii) sell, pledge, dispose of, transfer, lease, sublease, license, guarantee, mortgage or encumber, or authorize the sale, pledge, disposition, transfer, lease, sublease, license, guarantee, mortgage or encumbrance of, or subject to any Lien (including pursuant to a sale-leaseback transaction or an asset securitization transaction), other than Permitted Liens, any property or assets of the Company or any Company Subsidiary, except (A) in the ordinary course of business consistent with past practice pursuant to Contracts in force at the date of this Agreement that have been delivered to Parent prior to the date hereof, or (B) in connection with the StayFriends Transaction; (e) (i) abandon or allow any registrations (including any pending applications for registration) included in the Company Intellectual Property to lapse or expire for failure to pay any registration, maintenance, renewal or other fee, other than in the ordinary course of business consistent with past practice, (ii) fail to make any filing, pay any fee, or take any other action necessary to maintain any right or interest in any Company Intellectual Property, other than in the ordinary course of business consistent with past practice, or (iii) sell, assign, lease, license, pledge, surrender, encumber, divest, transfer or otherwise dispose of any Company Intellectual Property, other than licenses granted in the ordinary course of business consistent with past practice; (f) make any (i) loans, guarantees or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly-owned Company Subsidiary) or (ii) other than in the ordinary course of business consistent with past practice, any advances to any Person other than to employees in respect of expenses or other de minimis advances pursuant to any Contract in effect as of the date hereof; (g) 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; (h) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other securities convertible or exchangeable into or exercisable for any shares of its capital stock or other Equity Interests; (i) (i) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any Person or any division thereof or purchase substantially all of the assets of any Person, (ii) incur any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person for borrowed money or (iii) make or authorize any capital expenditure in excess of the Company’s certificate budget as set forth in Section 5.1(i) of incorporation the Company Disclosure Schedule, other than capital expenditures that are not, individually, in excess of $50,000 or bylaws in the aggregate, in excess of $100,000 for the Company and the Company Subsidiaries taken as a whole; (j) (i) enter into any Contract that would have been a Company Material Contract or similar governing documentsCompany Lease had it been entered into prior to this Agreement or (ii) amend, modify or terminate any Company Material Contract or Company Lease in any material respect, or cancel, modify or waive any matured debts or claims held by it or waive any rights under any Company Material Contract or Company Lease, in the case of clauses (i) and (ii), except, in the case of Sections 3.12(a)(iii), (iv), (vii) (for the avoidance of doubt, only as permitted under Section 5.1(f)), (viii), (ix) and (x) or with respect to a Company Lease, in the ordinary course of business consistent with past practice; provided that Parent shall have a reasonable period of time to review and comment on any such Company Material Contract or Company Lease or amendment or modification thereof, and the Company shall give reasonable and good faith consideration to any comments made by Parent; (k) except as may be required by applicable Law or a Plan in existence as of the date hereof: (i) increase the cash compensation or benefits payable or to become payable to its directors, officers, employees or individual independent contractors, (ii) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary (excluding offer letters that provide for no severance or change in control benefits), (iii) take any action to amend or waive any vesting criteria or accelerate vesting, exercisability or funding under any Plan or award granted thereunder, (iv) establish, adopt, enter into, materially amend or propose terminate any Plan or any arrangement that would have been a Plan had it been entered into prior to materially amend this Agreement, except in the ordinary course of business consistent with past practice in connection with the hiring or engaging of an employee or individual independent contractor as contemplated in Section 5.1(k)(v) and solely with respect to such employee or individual independent contractor, (v) hire any employee or engage any individual independent contractor, other than to replace a position that is open as of the date hereof or that becomes open in the ordinary course of business after the date hereof due to the termination of an employee or individual independent contractor; provided, that the annual salary or wage rate or consulting fee paid to such new employee or individual independent contractor shall be no greater than the annual salary or wage rate or consulting fee paid with respect to such position as of immediately prior to the termination of the preceding employee or independent individual contractor; and provided, further, that the annual salary or wage rate or consulting fee paid to such employee or individual independent contractor shall not exceed $200,000, or (vi) terminate the employment of any officer other than for cause (or death or disability); (l) make any change with respect to accounting policies or procedures, except as required by GAAP or by a Governmental Entity; (m) settle or compromise any Action against the Company or the Company Subsidiaries other than (i) settlements or compromises that do not involve payment by the Company or any Company Subsidiary of monetary damages and that do not impose injunctive or non-monetary relief or impose restrictions on the business or operations of the Company or any Company Subsidiary in any material respect or provide for the admission of wrongdoing by the Company or any Company Subsidiary and (ii) settlements or compromises that are exclusively applicable to the Excluded Subsidiaries and not the Company or the Company Subsidiaries which will not impose any continuing liabilities or obligations on and will not restrict the conduct of the business of the Company or the Company Subsidiaries; (n) except as required by Law, make or change any material Tax election, file any amended Tax Return with respect to any material Tax or change consent to any change of any annual Tax accounting period; (o) fail to maintain existing Insurance Policies or obtain comparable replacement policies to the extent available for a reasonable cost; (p) change in any material respect the cash management practices, policies or procedures of the Company or any Company Subsidiaries with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts receivable, accrual of accounts receivable, payment of accounts payable, purchases, prepayment of expenses or deferral of revenue, from the Company’s and the Company’s Subsidiaries’ practices, policies and procedures with respect thereto in the ordinary course of business consistent with past practice, including (i) taking (or omitting to take) any action that would have the effect of accelerating revenues, accelerating cash receipts or accelerating the collection of accounts receivable to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods, or (ii) taking (or omitting to take) any action that would have the effect of delaying or postponing the payment of any accounts payable to post-Closing periods that would otherwise be expected to be paid in pre-Closing periods; (q) take any action or omit to take any action that is reasonably likely to result in any of the Company’sconditions to the Merger set forth in Article 6 not being satisfied; or (r) authorize or enter into any agreement or otherwise make any commitment to do any of the foregoing.

Conduct of Business by the Company Pending the Closing. Except for matters (a) Between the date hereof and the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (w) as set forth in Section 6.01 6.1(a) of the Company Disclosure Letter or otherwise expressly permitted by this Agreement Letter, (or x) as required by this Agreement, (y) as may be required by applicable Law or Law, including the regulations or requirements of any stock exchange or regulatory organization applicable to the CompanyCompany or any Company Subsidiary, or (z) as consented to in writing by Parent (such consent not to be unreasonably withheld, conditioned, or delayed), from the date of this Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries Company Subsidiary to, (i) conduct its business in the ordinary course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice)maintain its cash management policies and practices, and (ii) use commercially reasonable efforts to (A) preserve intact their respective the Company’s business organizations organization, (B) maintain the Company’s rights, privileges, and goodwillimmunities, keep available (C) retain the services of their respective present officers, the Company’s officers and other key employees and key independent contractors(subject to workforce requirements other than where termination of such services is for cause), and preserve (D) maintain the goodwill and business Company’s relationships with its customers, suppliers, licensors, licensees service providers and others having business relationships with them. In addition, and without limiting lenders. (b) Notwithstanding the generality of the foregoing, except for matters exceptions set forth in Section 6.01 6.1(a), except as set forth in Section 6.1(a) of the Company Disclosure Letter Letter, the Company shall not, and shall not cause or permit any Company Subsidiary to, take any of the following actions without the prior written consent of Parent (such consent to specifically identify the permitted action to be taken and such consent not to be unreasonably withheld, conditioned, or delayed): (i) amend, modify, waive, rescind, change, or otherwise expressly permitted restate the Company’s or any Company Subsidiary’s certificate of incorporation, bylaws, or equivalent organizational documents; (ii) authorize, declare, set aside, make or pay any dividends (other than quarterly cash dividends paid in the ordinary course of business) on or make any distribution with respect to its outstanding shares of capital stock or other equity interests (whether in cash, assets, shares or other securities of the Company or any Company Subsidiary) (other than dividends or distributions made by this Agreementany wholly owned Company Subsidiary to the Company or any wholly owned Company Subsidiary); (iii) split, from combine, subdivide or reclassify any of its capital stock or other equity interests, or redeem, purchase or otherwise acquire any of its capital stock or other equity interests, or any other securities in respect of, in lieu of or in substitution for, shares of its capital stock or other equity interests, except for (i) shares of Company Common Stock withheld in order to pay Taxes in connection with the vesting or settlement of any Company Equity Award or as otherwise provided by the terms of any Company Equity Award, (ii) the acquisition of shares of Company Common Stock in connection with the forfeiture of any Company Equity Award or (iii) for any such transaction involving only wholly owned Company Subsidiaries; (iv) issue, deliver, grant, sell, pledge, dispose of or encumber (other than Permitted Liens), or authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance (other than Permitted Liens) of, any shares of capital stock, voting securities or other equity interest in the Company or any Company Subsidiary or any securities convertible into or exchangeable or exercisable for any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares, 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 or vested any otherwise un-exercisable or unvested Company Equity Award under the Company Stock Plans (except, in each case, as otherwise provided by the terms of any Contract or Company Equity Award), other than (i) transactions solely between the Company and a wholly owned Company Subsidiary or solely between wholly owned Company Subsidiaries, or (ii) the vesting or settlement of Company Equity Awards outstanding as of the date of this Agreement in accordance with the present terms of such Company Equity Awards or granted after the date of this Agreement to the extent permitted by this Agreement; (v) except as required by applicable Law, or any Contract or Company Plan as in effect as of the date hereof, (A) increase the compensation or benefits payable or to become payable to any of its directors, executive officers, or employees with annual base salary in excess of $100,000, (B) grant to any of its directors, executive officers or employees any increase in severance or termination pay, (C) pay or award, or commit to pay or award, any bonuses or incentive compensation to any of its directors, executive officers or employees, other than in the ordinary course of business consistent with past practice, (D) pay or award, or commit to pay or award, any retention compensation to any of its directors, executive officers or employees, (E) 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, executive officers, or employees, (F) establish, adopt, enter into, amend, or terminate any collective bargaining agreement or Company Plan, except for any amendments to any Company Plan as may be required by applicable Law, (G) amend or waive any performance or vesting criteria or accelerate vesting, exercisability, or funding under any Company Plan other than Company Equity Awards in accordance with this Agreement, (H) terminate the employment of any employee at the level of senior vice president or above, other than for cause (which, with respect to any such employee with an employment agreement, shall be “Cause” as defined therein), or (I) hire any new employees, except for employees at the vice president level or below; (vi) acquire (including by merger, consolidation, or acquisition of stock or assets or any other means) or authorize or announce an intention to so acquire, or enter into any binding agreements providing for any acquisitions of, any equity interests in or assets of any Person or any business or division thereof, or otherwise engage in any mergers, consolidations, or business combinations, except for (A) transactions solely between the Company and a wholly owned Company Subsidiary or solely between wholly owned Company Subsidiaries, or (B) acquisitions of supplies or equipment in the ordinary course of business; (vii) liquidate (completely or partially), dissolve, restructure, recapitalize, or effect any other reorganization (including any restructuring, recapitalization, or reorganization between or among any of the Company or the Company Subsidiaries), or adopt any plan or resolution providing for any of the foregoing; (viii) make any loans, advances or capital contributions to, or investments in, any other Person, except for (A) loans solely among the Company and its wholly owned Company Subsidiaries or solely among the Company’s wholly owned Company Subsidiaries or (B) advances for reimbursable employee expenses in the ordinary course of business; (ix) sell, lease, license, assign, abandon, permit to lapse, transfer, exchange, swap or otherwise dispose of, or subject to any Lien (other than Permitted Liens), any of its properties, rights or assets of the Company and the Company Subsidiaries, except (A) dispositions of excess, obsolete or worthless equipment, in the ordinary course of business, (B) Ordinary Course Licenses, Company Products or custom applications entered into in the ordinary course of business with customers of the Company or the Company Subsidiaries, (C) pursuant to Contracts as in effect as of the date hereof, or (D) pursuant to transactions solely among the Company and its wholly owned Company Subsidiaries or solely among wholly owned Company Subsidiaries; (x) (A) enter into any Contract that would, if entered into prior to the date hereof, be a Material Contract, other than (1) Contracts with customers or suppliers entered into in the ordinary course of business or (2) to renew or replace any Material Contract that has expired or terminated in accordance with its terms so long as such renewal or replacement includes terms and conditions substantially similar to such expired or terminated Material Contract, or (B) (1) materially modify, materially amend, extend, or terminate (other than in the ordinary course of business) any Material Contract or (2) waive, release, or assign any material rights or material claims thereunder, in each case, other than in the ordinary course of business; (xi) enter into any Contract that would, if entered into, be prohibited from being disclosed to Parent prior to the Closing; (xii) except in accordance with the Company’s capital budget made available to Parent, make any capital expenditure or expenditures in excess of $100,000 in the aggregate or enter into agreements or arrangements providing for capital expenditure or expenditures in excess of $100,000 in the aggregate or otherwise commit to do so; (xiii) in each case other than as provided in Section 6.3(d), commence (other than to enforce any of its rights under this Agreement), waive, release, assign, compromise or settle any material Proceeding, other than the compromise or settlement of any Proceeding that: (A) is for an amount not to exceed, for any such compromise or settlement payment by the Company, $100,000 in the aggregate (net of insurance proceeds and indemnification proceeds received from third parties), (B) does not impose any injunctive relief on the Company and the Company Subsidiaries and does not involve the admission of wrongdoing by the Company, any Company Subsidiary, or any of their respective officers or directors and (C) does not provide for the license of any Intellectual Property or the termination, modification or amendment of any license of Owned Intellectual Property; (xiv) make any change in financial accounting policies, practices, principles or procedures, except as required by GAAP or applicable Law; (xv) (A) make, revoke or change any election with respect to Taxes, (B) settle or compromise any Tax audit, claim, or assessment or any liability for Taxes, (C) file any amendment to a Tax Return, (D) enter into any closing agreement or obtain any Tax ruling or sought to change any Tax accounting period, (E) surrender any right to claim a refund of Taxes, (F) consent to any extension or waiver with respect to any proceeding with respect to Taxes or Tax assessment, or (G) prepare or file any Tax Return in a manner inconsistent with past practice; (xvi) incur, assume, guarantee or otherwise become liable for or modify the terms of any indebtedness for borrowed money or any derivative financial instruments or arrangements (including swaps, caps, floors, futures, forward contracts and option agreements), 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 (w) the incurrence of trade debt or accounts receivable in the ordinary course of business, (x) equipment leases entered into in the ordinary course of business, (y) the incurrence of any indebtedness solely among the Company and its wholly owned Company Subsidiaries or solely among wholly owned Company Subsidiaries, or (z) any guarantees by the Company of indebtedness or other obligations of Company Subsidiaries or guarantees by Company Subsidiaries of indebtedness or other obligations of the Company or any other Company Subsidiaries, which indebtedness or other obligations are incurred in compliance with this Section 6.1(b); (xvii) enter into any transactions or Contracts with any Affiliate or other Person that would be required to be disclosed by the Company under Item 404 of Regulation S-K of the SEC; (xviii) other than the Company Shareholders Meeting, convene any special meeting (or any adjournment or postponement thereof) of Company Shareholders; (xix) withdraw or otherwise transfer from the Company or the Company Subsidiaries, or permit any such withdrawal or transfer of, Cash that would result in Cash being less than $17,500,000, or enter into agreements or arrangements that would result in Cash being less than $17,500,000 immediately after the Closing or otherwise commit to do so; or (xx) agree or authorize, in writing or otherwise, to take any of the foregoing actions. (c) Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or any Company Subsidiary’s operations prior to the Effective Time. Prior to the Effective Time, the Company shall not (unless required by applicable Law or have the regulations or requirements right to exercise, consistent with the terms and conditions of any stock exchange or regulatory organization applicable to this Agreement, complete control and supervision over its businesses and operations and the Company), businesses and shall not permit any of its Subsidiaries to, do any operations of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend the Company’s certificate of incorporation or bylaws or similar governing documents, or materially amend or propose to materially amend any of the Company’sCompany Subsidiaries.

Conduct of Business by the Company Pending the Closing. Except for matters The Company agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 6.01 5.1 of the Company Disclosure Letter or otherwise expressly as specifically permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company), from the date other provision of this Agreement to Agreement, or unless the Effective TimePresident and Chief Executive Officer of Parent shall otherwise consent in writing, the Company shall, and shall cause each of its Subsidiaries Company Subsidiary to, (ix) maintain its existence in good standing under applicable Law, (y) subject to the restrictions set forth in this Section 5.1, conduct its business operations only in the ordinary and usual course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (iiz) use commercially its reasonable best efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present the current officers, key employees and key independent contractorsconsultants of the Company and each Company Subsidiary and, and to preserve the goodwill current relationships of the Company and business relationships the Company Subsidiaries with their customers, suppliers, licensors, licensees suppliers and others having other persons with which the Company or any Company Subsidiary has significant business relationships with themrelations as is reasonably necessary in order to preserve substantially intact its business organization. In addition, and without limiting the generality of the foregoing, except for matters as set forth in Section 6.01 5.1 of the Company Disclosure Letter or otherwise expressly as specifically permitted by any other provision of this Agreement, from the date of this Agreement to the Effective Time, the Company shall not and shall not permit any of its Subsidiaries to (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the CompanyCompany and its Subsidiaries), between the date of this Agreement and shall not permit any of its Subsidiaries tothe Effective Time, do directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend the Company’s otherwise change its articles or certificate of incorporation or bylaws or similar governing 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 of any class, or other rights of any kind to acquire any shares of such capital stock or other Equity Interests of the Company or any Company Subsidiary, except that the Company may issue shares of Company Common Stock pursuant to the Company ESPP or upon exercise of Company Options outstanding on the date hereof; (c) (i) sell, pledge, dispose of, transfer, lease, license, or encumber any material property or assets (other than Company Intellectual Property) of the Company or any Company Subsidiary, except (A) sales, pledges, dispositions, transfers, leases, licenses or encumbrances pursuant to and in accordance with the terms of existing Contracts, or (B) sales, pledges, dispositions, transfers, leases, licenses or encumbrances of property or assets by the Company or a Company Subsidiary in the ordinary course of business but not to exceed an aggregate value for all such sales, pledges, dispositions, transfers, leases, licenses and encumbrances of $500,000; (ii) sell, pledge, dispose of, transfer, lease, license, abandon, fail to maintain or encumber any Company Intellectual Property, except sales, pledges, dispositions, transfers, leases, licenses, abandonments, failures to maintain or encumbrances in the ordinary course of business which will not materially amend impair the conduct of the Company's business; (iii) enter into any Contract or propose series of related Contracts, or any amendment or series of related amendments of one or more Contracts, involving aggregate receipts, payments or expenses (direct, contingent or otherwise) in excess of $500,000; or (iv) enter into any material commitment or transaction outside 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 materially amend any of the capital stock of the Company or enter into any agreement with respect to the voting of the capital stock of the Company’s; (e) (i) reclassify, combine, split or subdivide 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, or (ii) redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other securities; (f) (i) incur any indebtedness for borrowed money (other than short term debt incurred in the ordinary course of business consistent with past practice) 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, (ii) terminate, cancel, or agree to any material and adverse change in, any Company Material Contract, (iii) make or authorize any capital expenditure materially in excess of the Company's budget as disclosed to Parent prior to the date hereof, (iv) make or authorize any material loan to any person (other than a Company Subsidiary) outside the ordinary course of business and consistent with past practice, or (v) enter into any agreement or arrangement that limits or otherwise restricts the Company or any of its Subsidiaries or any of their respective affiliates or any successor thereto, or that could, after the Effective Time, limit or restrict Parent or any of its affiliates (including the Surviving Corporation) or any successor thereto, from engaging or competing in any line of business or in any geographic area; (g) 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 Section 3.8 of the Company Disclosure Letter, (i) increase the compensation or benefits payable or to become payable to its directors, officers or employees (except for increases in accordance with past practices and methodologies in salaries or wages of officers and/or employees of the Company or any Company Subsidiary), (ii) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary (other than with respect to newly appointed directors and newly hired employees in accordance with past practices of the Company or any Company Subsidiary, provided that any such agreements shall not provide for the payment of any severance or termination pay as a result of the execution of this Agreement or the consummation of 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 director, officer, consultant or employee, except to the extent required by applicable Law, or (iv) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan or Company Option; (h) make any material change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice or except as required by GAAP or by a Governmental Entity; (i) except in the ordinary course of business consistent with past practice, make any material Tax election or settle or compromise any material liability for Taxes, change any annual Tax accounting period, change any method of Tax accounting, file any amended material Tax Return, enter into any closing agreement relating to any material Tax, surrender any right to claim a material Tax refund, or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment; (j) subject to Section 6.4(g), 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 and which relates to a business combination involving the Company; (k) write up, write down or write off the book value of any assets, individually or in the aggregate, for the Company and the Company Subsidiaries taken as a whole, other than in the ordinary course of business or except as required by GAAP; (l) subject to Section 6.4(g), take any action to render inapplicable, or to exempt any third party from any state takeover Law or state Law that purports to limit or restrict business combinations or the ability to acquire or vote shares; (m) acquire, or agree to acquire, from any Person any assets (not including Intellectual Property), operations, business or securities or engage in, or agree to engage in, any merger, consolidation or other business combination with any Person, except in connection with capital expenditures permitted hereunder and except for acquisitions of inventory and other assets (not including Intellectual Property) in the ordinary course of business or, which, individually or in the aggregate, would not be reasonably expected to result in any of the conditions to the Merger set forth in Article 7 not being satisfied; (n) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article 7 not being satisfied; (o) adopt a stockholder rights agreement, or "poison pill"; (p) acquire, or agree to acquire, from any Person, any Intellectual Property, except in the ordinary course of business consistent with past practice (including in size and nature); or (q) authorize or enter into any agreement or otherwise make any commitment to do any of the foregoing.

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company), from Between the date of this Agreement to and the earlier of the Effective TimeTime and the date, if any, on which this Agreement is validly terminated pursuant to Section 9.1, except (i) as set forth in Section 6.1(a) of the Company Disclosure Letter, (ii) as required by the express terms of this Agreement, (iii) as required by Law, (iv) as required to comply with COVID-19 Measures, or (v) as consented to in writing (including via email) by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries Company Subsidiary to, (i) conduct its business in all respects within 120 calendar days from the date of this Agreement, and in all material respects thereafter, in the ordinary course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (ii) use commercially reasonable efforts to (w) preserve intact its and their respective present business organizations organizations, assets and goodwillpermits, (x) preserve its and their present material business relationships with customers, suppliers and other Persons, (y) keep available the services of its and their respective present directors, officers, key employees and key independent contractorscontractors and (z) upon the request of Parent, and preserve cooperate with Parent to facilitate the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with them. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 6.01 of the Company Disclosure Letter prompt delivery at or otherwise expressly permitted by this Agreement, from the date of this Agreement to after the Effective TimeTime to Parent or one of its Affiliates of a commitment for the issuance of an owner’s title insurance policy from a title company of Parent’s choosing on, a land title survey of, or a zoning report for, each Real Property (“Real Property Reports”). At Parent’s written request, the Company shall not (unless required by applicable Law or the regulations or requirements of applicable the Company Subsidiary shall use commercially reasonable efforts to remove defects in title as disclosed by any stock exchange or regulatory organization applicable to the Company), and shall Real Property Reports that are not permit any of its Subsidiaries to, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend the Company’s certificate of incorporation or bylaws or similar governing documents, or materially amend or propose to materially amend any of the Company’sPermitted Liens.

Conduct of Business by the Company Pending the Closing. Except for matters The Company agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 6.01 5.1 of the Company Disclosure Letter or otherwise expressly permitted as specifically contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company), from the date other provision of this Agreement to the Effective TimeAgreement, or unless Parent shall otherwise consent in writing, the Company shall, and shall cause each of its Subsidiaries Company Subsidiary to, use its commercially reasonable efforts to (ix) maintain its existence in good standing under applicable Law, (y) subject to the restrictions set forth in this Section 5.1, conduct its business operations only in the ordinary and usual course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (iiz) use commercially reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present the current officers, key employees and key independent contractorsconsultants of the Company and each Company Subsidiary and, and to preserve the goodwill current relationships of the Company and business relationships the Company Subsidiaries with their customers, supplierssuppliers and other persons with which the Company or any Company Subsidiary has significant business relations, licensors, licensees and others having in each case as is reasonably necessary in order to preserve substantially intact its business relationships with themorganization. In addition, and without limiting the generality of the foregoing, except for matters as set forth in Section 6.01 5.1 of the Company Disclosure Letter or otherwise expressly permitted as specifically contemplated by any other provision of this Agreement, from the date of this Agreement to the Effective Time, the Company shall not and shall not permit any of its Subsidiaries to (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the CompanyCompany and its Subsidiaries), between the date of this Agreement and shall not permit any of its Subsidiaries tothe Effective Time, do directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent: (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 of any class, or other rights of any kind to acquire any shares of such capital stock or other Equity Interests of the Company or any Company Subsidiary, except that the Company may issue shares of Company Common Stock pursuant to the Company ESPP or upon exercise of Company Options and may grant Company Options in the ordinary course of business consistent with past practice; (c) (i) sell, pledge, dispose of, transfer, lease, license or encumber (other than pursuant to Permitted Liens) any material property or assets (other than Company Intellectual Property) of the Company or any Company Subsidiary, except (A) sales, pledges, dispositions, transfers, leases, licenses or encumbrances pursuant to and in accordance with the terms of existing Contracts, or (B) sales, pledges, dispositions, transfers, leases, licenses or encumbrances of property or assets by the Company or a Company Subsidiary in the ordinary course of business; (ii) sell, pledge, dispose of, transfer, lease, license, abandon, fail to maintain or encumber any Company Intellectual Property, except sales, pledges, dispositions, transfers, leases, licenses, abandonments, failures to maintain or encumbrances in the ordinary course of business which will not materially impair the conduct of the Company’s business; (iii) enter into any Contract or series of related Contracts, or any amendment or series of related amendments of one or more Contracts, outside of the ordinary course of business consistent with past practice and involving aggregate receipts, payments or expenses (direct, contingent or otherwise) in excess of $500,000 in any fiscal quarter; or (iv) enter into any material commitment or transaction outside 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 the capital stock of the Company or enter into any agreement with respect to the voting of the capital stock of the Company; (e) (i) reclassify, combine, split or subdivide 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, or (ii) redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other securities; (f) (i) incur any indebtedness for borrowed money (other than debt incurred in the ordinary course of business consistent with past practice) 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, in each case except for indebtedness for borrowed money under the Company’s existing credit facilities or replacement credit facilities in an aggregate amount not larger than the Company’s existing credit facilities, (ii) terminate, cancel, or agree to any material and adverse change in, any Company Material Contract, (iii) make or authorize capital expenditures other than consistent with past practices and in any event not in excess of $3.0 million in the aggregate during any fiscal quarter, (iv) make or authorize any material loan to any person (other than a Company Subsidiary) outside the ordinary course of business and consistent with past practice or (v) enter into any agreement or arrangement that limits or otherwise restricts the Company or any of its Subsidiaries or any of their respective Affiliates or any successor thereto, or that could, after the Effective Time, limit or restrict Parent or any of its Affiliates (including the Surviving Corporation) or any successor thereto, from engaging or competing in any line of business or in any geographic area; (g) 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 Section 3.8 of the Company Disclosure Letter, (i) increase the compensation or benefits payable or to become payable to its directors, officers or employees (except for increases in accordance with past practices and methodologies in salaries or wages of officers and/or employees of the Company or any Company Subsidiary), (ii) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary (other than with respect to newly appointed directors and newly hired employees in accordance with past practices of the Company or any Company Subsidiary, provided that any such agreements shall not provide for the payment of any severance or termination pay as a result of the execution of this Agreement or the consummation of 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 director, officer, consultant or employee outside the ordinary course of business consistent with past practices, except to the extent required by applicable Law, (iv) close any facility or engage in any mass layoff that could implicate the WARN Act, or (v) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan or Company Option; (h) make any material change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice or except as required by GAAP or by a Governmental Entity; (i) except in the ordinary course of business consistent with past practice, make any material Tax election or settle or compromise any material Tax liability or refund, change any annual Tax accounting period or material method of Tax accounting, file any material amendment to a Tax Return, enter into any closing agreement relating to any material Tax, surrender any right to claim a material Tax refund or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment; (j) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or, except as necessary in connection with the exercise of the Company’s rights under Section 6.4, standstill agreement to which the Company is a party and which relates to a business combination involving the Company; (k) write up, write down or write off the book value of any assets, individually or in the aggregate, for the Company and the Company Subsidiaries taken as a whole, other than in the ordinary course of business or except as required by GAAP; (l) except as necessary in connection with the exercise of the Company’s rights under Section 6.4, take any action to render inapplicable, or to exempt any third party from, any Takeover Law; (m) acquire, or agree to acquire, from any person any assets (not including Intellectual Property), operations, business or securities or engage in, or agree to engage in, any merger, consolidation or other business combination with any person, except in connection with capital expenditures permitted hereunder and except for acquisitions of inventory and other assets (not including Intellectual Property) in the ordinary course of business or, which, individually or in the aggregate, would not be reasonably expected to result in the failure to satisfy, or material delay in satisfying, any of the conditions to the Merger set forth in Article 7; (n) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article 7 not being satisfied; (o) adopt a stockholder rights plan or agreement or “poison pill”; (p) acquire, or agree to acquire, from any person, any Intellectual Property, except in the ordinary course of business consistent with past practice (including in size and nature); (q) without Parent’s prior written consent, which consent shall not be unreasonably withheld withheld, enter into any confidentiality or delayed:similar obligations which could prohibit the Company from providing or disclosing any agreement, contract or other arrangement to Parent; (ar) (i) amend authorize or propose enter into any agreement or otherwise make any commitment to amend the Company’s certificate of incorporation or bylaws or similar governing documents, or materially amend or propose to materially amend do any of the Company’sforegoing; or (s) cause or permit to expire without renewal, fail to renew or make any material modification to any material insurance policy to which the Company or any Company Subsidiary is a party.

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 The Company agrees that, between the date of this Agreement and the earlier of the Company Disclosure Letter or otherwise expressly Effective Time and the date of termination of this Agreement, except as specifically permitted by any other provision of this Agreement (Agreement, unless Parent shall otherwise agree in writing or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company)Law, from the date of this Agreement to the Effective Time, the Company shallwill, and shall will cause each of its Subsidiaries Company Subsidiary to, (i) conduct its operations in all material respects in the ordinary and usual course of business consistent with past practice, and (ii) keep substantially in working condition and good order and repair all of its material assets and other material properties, normal wear, tear and retirements excepted. Without limiting the foregoing, and as an extension thereof, other than (A) as specifically permitted or expressly contemplated by any other provision of this Agreement, (B) as expressly contemplated by the Pinehurst Acquisition Agreement and (C) as set forth in Section 6.1 of the Company Disclosure Letter, 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 without Parent’s prior written consent (which consent (i) shall not be unreasonably withheld or delayed and (ii) may be delivered to the Company by Parent via electronic mail), unless required by applicable Law: (a) acquire by merging or consolidating with or by purchasing a material Equity Interest in or a substantial portion of the assets of, or by any other manner, any business, corporation, partnership, association or other business organization or division thereof, or enter into any agreement providing for any merger, acquisition or similar transaction; (b) sell, lease, license or otherwise dispose of any of its properties, rights or assets, other than (i) in connection with the Pinehurst Sale, (ii) dispositions of equipment that is no longer used or useful, (iii) sales of inventory in the ordinary course of business, and (iv) sales, leases, licenses or dispositions of assets in the ordinary course of business with a fair market value not in excess of $1,000,000; provided, that such sales, leases, licenses or dispositions shall not include any golf, business or country clubs; (c) amend or propose to amend the Company Certificate of Incorporation or Company Bylaws or, in the case of the Company Subsidiaries, their respective constituent documents; (d) declare, set aside or pay any dividend or other distribution payable in cash, capital stock, property or otherwise with respect to any shares of its capital stock, or purchase, redeem or otherwise acquire, or offer to purchase, redeem or otherwise acquire, any shares of its capital stock, other equity securities, other ownership interests or any options, warrants or rights to acquire any such stock, securities or interests; (e) adjust, recapitalize, reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire any shares of capital stock of the Company (other than the acquisition of Shares tendered by employees or former employees in connection with a cashless exercise of Company Options), or adjust, recapitalize, reclassify, combine, split or subdivide any capital stock or other ownership interests of any Company Subsidiary; (f) issue, sell, authorize, or agree to the issuance or sale of, any shares of, or any options, warrants or rights of any kind to acquire any shares of, or any securities convertible into or exchangeable for any shares of, any Equity Interests of the Company or any Company Subsidiary, except for the shares of Company Common Stock issuable upon exercise of (A) Company Options outstanding on the date hereof or (B) Company Warrants outstanding on the date hereof; (g) increase the compensation, bonus, or pension, welfare, severance or other benefits of, or make any new equity awards to any director, officer or employee of the Company or any of the Company Subsidiaries (except for increases in base salary or wages in the ordinary course of business consistent with past practice for employees who are not officers), (includingii) grant or provide any severance or termination pay or benefits to any director, without limitation, preparing for and conducting an audit officer or employee of the Company’s financial statements Company or any of the Company Subsidiaries (except pursuant to agreements, plans or policies in effect on the date hereof), (iii) enter into any employment, severance, change in control, termination, deferred compensation or other similar agreement with any director, officer or employee of the Company or any of the Company Subsidiaries, (iv) establish, adopt, enter into, amend, terminate, exercise any discretion under, or take any action to accelerate rights (including the vesting or payment of any compensation or benefits to the extent not already provided for in any such Company Benefit Plan) under any Company Benefit Plans or amend the terms of or exercise any discretion under any outstanding Company Stock Option Plan except as expressly contemplated by this Agreement, (v) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan outside the ordinary and usual course of business, consistent with past practice, (vi) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vii) forgive any loans in excess of $100,000 in the aggregate to directors, officers or employees of the Company or any of the Company Subsidiaries, except in each case (A) to the extent required by applicable Laws, or (B) pursuant to existing collective bargaining agreements in effect prior to the date hereof and set forth in Section 6.1(g) of the Company Disclosure Letter; (h) make any written communications from an executive officer to a group of directors, officers or employees of the Company or any of the Company Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement without first providing Parent with a copy of the intended communication and a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in making any such communication; (i) incur any Indebtedness (other than (i) any prepayment penalties or fees, any premiums, any breakage amounts or any similar amounts payable as of Closing under the Loan Agreements, (ii) accrued interest and (iii) trade payables in the ordinary course of business), or modify the terms of any existing Indebtedness of the Company or any Company Subsidiary (other than repayment thereof at Closing), except in the ordinary course pursuant to any existing revolving credit facility; (j) assume, guarantee or endorse the obligations of any other Person, or, subject to clause (m) below, make any loans, advances, investments in or capital contributions to any Person, except (i) to or for the fiscal year ending December 31benefit of the Company Subsidiaries or (ii) for those required pursuant to pre-existing contractual commitments (other than short term, 2005 in a manner de minimus loans or advances to employees consistent with past practice), and ; (iik) use commercially reasonable efforts except pursuant to preserve intact their respective business organizations and goodwill, keep available the services terms of their respective present officers, key employees and key independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with them. In addition, and without limiting the generality any existing Indebtedness of the foregoingCompany or any Company Subsidiary, except for matters create or assume any material Encumbrance on any material asset; (l) other than the approved future capital expenditures of the Company set forth in Section 6.01 6.1(l) of the Company Disclosure Letter Letter, make or otherwise expressly permitted commit to make capital expenditures in excess of $1,000,000 in the aggregate after the date of this Agreement; (m) amend, terminate or modify any Material Contract, or enter into any Contract that would have been a Material Contract if it were in effect on the date hereof involving consideration or other obligation in excess of $1,000,000 annually, except for Material Contracts that expire in accordance with their terms; (n) change its accounting principles, policies, practices or procedures, other than as required by GAAP; (i) change its method of Tax accounting, (ii) make any Tax elections except for elections that merely continue previously made Tax elections that were made in the ordinary course of business, (iii) settle any Tax claim, action, proceeding or audit (or portion thereof) with any Taxing Authority, (iv) extend or waive the statute of limitations for assessing any federal or any material non-federal Tax liability or (v) file any amended federal Tax Returns or any material amended non-federal Tax Returns; (p) waive, release, assign, settle or compromise any Proceeding for matters not covered by insurance an amount in excess of $500,000 (including costs and expenses) or that prohibits or restricts the Company or any of the Company Subsidiaries from operating their business in the ordinary course; (q) permit any insurance policy naming it as a beneficiary or loss-payable payee to be cancelled or terminated other than in the ordinary course of business; (r) other than as would result from the transactions contemplated by this Agreement, surrender, allow to expire or fail to renew, any material Permits, including any license or Permit relating to liquor at any property; (s) exempt any Person, other than Parent and its Affiliates, from the date provisions of Section 203 of the DGCL; (t) except in the ordinary course of business consistent with past practice, make any request or demand to any person to pay any amounts, or accelerate any cash, owed to the Company or any Company Subsidiary prior to the Closing Date, or factor or otherwise dispose of any accounts receivable of the Company or any of the Company Subsidiaries or discharge or forgive any material obligations of any obligor thereunder; (u) except in the ordinary course of business consistent with past practice, defer or delay the payment of accounts payable or capital expenditures of the Company or any of the Company Subsidiaries beyond the Closing Date; (v) adopt or enter into a plan or agreement of complete or partial liquidation, dissolution of the Company or any Company Subsidiary; (w) waive the benefits of, or agree to modify, in any manner adverse to the Company, any confidentiality, standstill or similar agreement material to the Company or any Company Subsidiary to which the Company or any Company Subsidiary is a party or a beneficiary; (x) enter into any agreement or arrangement that limits or otherwise restricts the Company or any Company Subsidiary or any successor thereto or that could, after the Effective Time, limit or restrict the Surviving Corporation or its Affiliates (including Parent and its Affiliates) or any successor thereto, from engaging or competing in any line of business or in any geographic area; (y) enter into, terminate, amend, modify or waive any rights under any Contract or transaction (or series of related Contracts or transactions) with an executive officer or director or any person in which such executive officer or director, or any immediate family member of such executive officer of director, has over a 10% interest; (z) amend, modify or waive any provision of the Pinehurst Acquisition Agreement if such amendment, modification or waiver (i) is or would reasonably be expected to be adverse to the Company’s interests after the Effective Time or (ii) adversely affects or would reasonably be expected to adversely affect the ability of the parties hereto to consummate the transactions contemplated hereby; provided that the Company shall provide notice and a copy of any proposed amendment, modification or waiver to Parent not less than three Business Days prior to entering into any such amendment, modification or waiver (even if consent is not required hereby); (aa) terminate the Pinehurst Acquisition Agreement; (bb) knowingly take, or agree to commit to take, any action the result of which would be or reasonably and foreseeably likely to prevent the consummation of the Merger on or before the Termination Date; (cc) at any time within the 90-day period prior to the Closing Date, effectuate a “plant closing,” “mass layoff” or similar triggering event, as those terms are defined in the WARN Act, affecting in whole or in part any site of employment, facility, operating unit or employee of the Company, without notifying Parent in advance and obtaining the advance approval of Parent, and complying with all provisions of the WARN Act; (dd) initiate or consent to any material and adverse zoning reclassification of any Owned Properties or any material and adverse change to any approved site plan, special use permit or other land use entitlement affecting any Owned Property; or (ee) agree to take any of the actions described in subsections (a) through (dd) of this Section 6.1. (ff) Other than as specifically set forth herein, nothing contained in this Agreement shall give Parent, directly or indirectly, rights to control or direct Company’s operations or otherwise prior to the Effective Time. Prior to the Effective Time, the Company shall not (unless required by applicable Law or exercise, consistent with the regulations or requirements terms and conditions of any stock exchange or regulatory organization applicable to the Company)this Agreement, complete control and shall not permit any supervision of its Subsidiaries to, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend the Company’s certificate of incorporation or bylaws or similar governing documents, or materially amend or propose to materially amend any of the Company’soperations.

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 (a) The Company agrees that, between the date of this Agreement and the Company Disclosure Letter or Effective Time, except as otherwise expressly permitted by this Agreement (or Agreement, as required by applicable Law or the regulations as consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or requirements of any stock exchange or regulatory organization applicable to the Companydelayed), from the date of this Agreement to the Effective Time, the Company shallwill, and shall will cause each of its Subsidiaries to, Company Subsidiary to (i) conduct its business in the ordinary course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (ii) use commercially its reasonable best efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present the current officers, key employees and key independent contractors, consultants of the Company and each Company Subsidiary and to preserve the goodwill current relationships of the Company and business relationships each Company Subsidiary with each of the customers, suppliers, licensors, licensees suppliers and others having other Persons with whom the Company or any Company Subsidiary has business relationships with themrelations. In addition, and without Without limiting the generality of the foregoing, and as an extension thereof, except for matters as set forth in Section 6.01 6.1(a) of the Company Disclosure Letter or Schedule, as otherwise expressly permitted by this Agreement, from as required by applicable Law, as deemed necessary by the date Company in good faith (after prior consultation with Parent) to preserve the viability of this Agreement the business directly in response to pandemic conditions related to the Effective Timecoronavirus disease (COVID-19) or as consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), 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)not, and shall not permit any of its Subsidiaries Company Subsidiary to, do between the date of this Agreement and the Effective Time, directly or indirectly, take any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayedactions: (a) (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 amend the issuance, delivery, sale, pledge, transfer, encumbrance or disposition of, any shares of any class or series of its share capital 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 share capital or other Equity Interests (other than pursuant to the exercise or vesting of the Company Share Awards 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, stock, property or a combination thereof) with respect to any of its share capital (other than dividends paid by a Company Subsidiary to the Company or to any other Company Subsidiary wholly-owned by Company), or enter into any agreement with respect to the voting of its share capital; (iv) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire or offer to acquire, directly or indirectly, any of its share capital or other Equity Interests, or securities convertible or exchangeable into or exercisable for any of its share capital or other Equity Interests, except pursuant to the exercise or settlement of employee severance, retention, termination, change of control and other contractual rights existing on the date hereof on the terms in effect on the date hereof; (v) 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 $15,000,000 (or an equivalent amount in RMB) individually and $15,000,000 (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 certificate 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 incorporation business consistent with past practices in a principal amount not in excess of $15,000,000 (or bylaws 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; provided that any Indebtedness incurred or otherwise acquired, or modified, or assumed under this Section 6.1(a)(vi) shall be subject to prepayment without penalty at any time. (vii) grant any Lien on any of its assets, other than Liens granted in connection with any Indebtedness permitted under Section 6.1(a)(vi); (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 $15,000,000 (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 pursuant to appropriate confidentiality agreements, and non-exclusive licenses of Intellectual Property granted by the Company or any Company Subsidiary to its customers in the ordinary course of business consistent with past practice); (x) authorize, or make any commitment with respect to, any single capital expenditure in excess of $15,000,000 (or an equivalent amount in RMB) or capital expenditures for the Company and the Company Subsidiaries in excess of $15,000,000 (or an equivalent amount in RMB) in the aggregate; (xi) enter into any new line of business outside of its existing business segments; (xii) (A) grant or announce any stock option, equity, equity-linked or incentive awards or change the vesting dates of any Company Share Awards from the vesting date for the Company Share Awards set forth in Section 4.2(a) of the Company Disclosure Schedule, (B) subject to Section 6.12(c), grant or announce any increase in the salaries, bonuses or other compensation and benefits payable by the Company or any Company Subsidiary to any of the employees, officers, directors, shareholders or other service providers of the Company or any Company Subsidiary having a total annual base salary and incentive compensation opportunity in excess of $15,000,000 (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 $15,000,000 (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 not required by any existing Company Plan, or (E) enter into or adopt any new, or materially increase benefits under or renew, amend or terminate any existing Company Plan or benefit arrangement or any collective bargaining agreement; (xiii) communicate with employees of the Company or any Company Subsidiary regarding the compensation, benefits or other treatment that they will receive in connection with the Merger, unless any such communications are consistent with prior directives or documentation provided to the Company by Parent (in which case, the Company shall provide Parent with prior notice of and the opportunity to review and comment upon any such communications); (xiv) except as may be required by GAAP or as a result of a change in Law, make any change in accounting principles, policies, practices, procedures or methods; (xv) change any method of Tax accounting, make or change any material Tax election, adopt or change any accounting method, file any amended material Tax Return, settle or compromise any material Tax liability, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, enter into any closing agreement with respect to any material Tax, surrender any right to claim a material Tax refund, fail to pay any material Taxes as they become due and payable, or take any other similar governing documentsaction relating to the filing of any material Tax Return or the payment of any material Tax; (xvi) settle, release, waive or compromise any pending or threatened Action of or against the Company or any of the Company Subsidiaries (A) for an amount in excess of $15,000,000 (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 amount, or (y) obligations that would impose any material restrictions on the business or operations of the Company or any of the Company Subsidiaries, or (C) that is brought by or on behalf of any current, former or purported holder of any share capital or debt securities of the Company or any Company Subsidiary relating to the transactions contemplated by this Agreement; (xvii) (A) enter into (other than extensions at the end of a term in the ordinary course of business), terminate or materially amend or propose 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 materially amend the Company or Company Subsidiary under any Company Material Contract or VIE Contract; (xviii) fail to maintain in full force and effect material insurance policies covering the Company and the Company Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practice; (xix) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the Merger or any merger or consolidation among wholly-owned Subsidiaries of the Company); (xx) take any action which would result in any of the Company’sconditions to the Merger set forth in Article VII not being satisfied or that would reasonably be expected to prevent, delay or impair the ability of the Company to consummate the Merger prior to the End Date; or (xxi) knowingly commit, authorize or agree to take any of the foregoing actions or enter into any letter of intent (binding or non-binding) or similar agreement or arrangement with respect to any of the foregoing actions. (b) Nothing contained in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the operations of the Company or any Company Subsidiary prior to the Effective Time. Prior to the Effective Time, each of Parent and the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its respective Subsidiaries’ respective operations.

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company), from Between the date of this Agreement to and the earlier of the Effective TimeTime and the termination of this Agreement in accordance with Article 7, except (a) as set forth in Section 5.1 of the Company Disclosure Schedule, (b) as required by applicable Law, (c) as otherwise expressly permitted or required by any other provision of this Agreement or (d) with the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed) (collectively, the “IOC Exceptions”), the Company shallwill, and shall will cause each of its Subsidiaries to, use its commercially reasonable efforts to (i) conduct its business operations in the ordinary course of business consistent with past practice (includingbusiness, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (ii) use commercially reasonable efforts to preserve intact their respective its present business organizations and goodwillorganization, (iii) keep available the services of their respective present officers, the current officers and other key employees of the Company and key independent contractors, each of its Subsidiaries (other than where termination of such services is due to cause or resignation) and (iv) preserve the goodwill and business current relationships of the Company and each of its Subsidiaries with customers, suppliers, licensors, licensees suppliers and others having other Persons with which the Company or any of its Subsidiaries has material business relationships with themrelations. In addition, and without Without limiting the generality of the foregoing, except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Timeaccordance with an IOC Exception, 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)not, and shall not permit any of its Subsidiaries to, do 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 without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayedactions: (a) (iA) amend or propose to amend the Company’s its certificate of incorporation or bylaws or equivalent organizational documents (whether by merger, consolidation or otherwise), other than in connection with any action permitted pursuant to Section 5.1(H); (B) enter into any material new line of business outside the existing business of the Company and its Subsidiaries as of the date of this Agreement; (C) except as set forth on Section 5.1(C) of the Company Disclosure Schedule, issue, deliver, sell, pledge, dispose of, grant, award, transfer or encumber or authorize the issuance, delivery, sale, pledge, disposal, grant, award, transfer or encumbrance of any shares of capital stock of, or other Equity Interests in, the Company or any of its Subsidiaries, other than (i) the issuance of Shares (A) in accordance with the terms of the Company ESPP, or (B) upon the exercise of Company Options or vesting or settlement of Company RSUs outstanding as of the date hereof or granted in compliance with this Agreement, (ii) the issuance, sale, disposal, grant or transfer of Equity Interests of any wholly-owned Subsidiary of the Company to the Company or one or more other wholly-owned Retained Subsidiaries or (iii) the pledge of Equity Interests pursuant to the Existing Credit Agreement; (D) sell, assign, pledge, transfer, convey, lease, license, abandon, mortgage, guarantee or create or incur any Lien on or otherwise dispose of any material property, assets, securities, businesses or other interests (whether tangible or intangible) of the Company or any of its Subsidiaries (other than Intellectual Property), except (i) pursuant to Contracts in effect on the date hereof, (ii) the sale of inventory in the ordinary course of business, including inventory classified as fixed assets regularly sold by the Company, (iii) Permitted Liens, (iv) dispositions of obsolete or worthless equipment in the ordinary course of business, (v) pursuant to transactions solely among the Company and its wholly-owned Retained Subsidiaries or solely among wholly-owned Retained Subsidiaries of the Company or (vi) transactions identified and subject to the parameters set forth on Section 5.1(D) of the Company Disclosure Schedules; (E) sell, assign, pledge, transfer, convey, license, abandon, or incur any Lien other than Permitted Liens on or otherwise dispose of or fail to maintain any material Company Intellectual Property, except (i) in the ordinary course of business, (ii) pursuant to Contracts in effect on the date hereof, or (iii) pursuant to transactions solely among the Company and its wholly-owned Retained Subsidiaries or solely among wholly-owned Retained Subsidiaries of the Company; (F) declare, authorize, establish a record date for, 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 Retained Subsidiary of the Company; (G) reclassify, adjust, combine, split, subdivide or amend or otherwise change any terms of, or redeem, purchase or otherwise acquire, or otherwise offer to redeem, purchase or otherwise acquire, directly or indirectly, any shares of capital stock or other Equity Interests in the Company or any of its Subsidiaries, other than with respect to any of its wholly-owned Retained Subsidiaries; (H) merge or consolidate the Company or any of its Subsidiaries with any Person or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization or resolutions providing for a complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company, except with respect to any wholly-owned Retained Subsidiaries of the Company where no third party owns Equity Interests of such Retained Subsidiary after such action; (I) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise), directly or indirectly, any Person or assets, securities, properties, interests or businesses other than (i) acquisitions of inventory, containers, raw materials and other similar governing documentsproperty in the ordinary course of business and (ii) any acquisitions of Medical Waste Disposal businesses or assets in the United States or Canada with a purchase price of less than $10,000,000 in any single transaction or $20,000,000 in the aggregate and that would not, individually or in the aggregate, reasonably be expected to (1) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any permits, orders or other approvals of any Governmental Entity necessary to consummate the Merger or the expiration or termination of any applicable waiting period, (2) materially increase the risk of any Governmental Entity seeking an Order prohibiting the consummation of the Merger, (3) materially increase the risk of not being able to remove any such Order on appeal or otherwise, or (4) delay or prevent the consummation of the Merger; (J) incur or create any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for (whether directly, contingently or otherwise), the obligations of any Person (other than a wholly-owned Retained Subsidiary of the Company) for borrowed money, except (i) for borrowings under the Existing Credit Agreement or issuances of commercial paper for working capital and general corporate purposes in the ordinary course of business or (ii) in connection with the renewal of the Existing Credit Agreement not to exceed the maximum credit facility amount under the Existing Credit Agreement; provided, in no event shall the aggregate amount outstanding under the Company’s credit facilities exceed $1,550,000,000; (K) make any loans, advances or capital contributions to, or investments in, any other Person (other than a wholly-owned Retained Subsidiary of the Company), other than in the ordinary course of business in an amount not to exceed $5,000,000 in the aggregate; (L) (i) terminate, cancel or renew, or agree to any material amendment to, modification of, or waiver under, any Company Material Contract (other than (x) extensions and renewals of existing Company Lease Agreements in accordance with their terms, and (y) Company Material Contracts with the customers and suppliers of the Company as of the date hereof on terms that are not materially adverse to the Company and its Subsidiaries in the aggregate or are made in the ordinary course of business so long as the duration of such extension or renewal is less than five years), or (ii) enter into any Contract that, if existing on the date hereof, would be a Company Material Contract (other than Contracts (v) entered in the ordinary course of business, (w) that involve the payment or receipt of amounts or any of its Subsidiaries of less than $5,000,000 annually, (x) are for a duration of less than five years, (y) are not the type of Contracts described in Section 3.16(a)(v), (vii), (xi) or (xiv), and (z) that are not otherwise prohibited by the other subsections of this Section 5.1); (M) incur or make any capital expenditure, or any obligations or liabilities for payments in respect thereof, except for those contemplated by (i) the Company’s capital expenditure budget as disclosed to Parent prior to the date hereof (“2024 Capital Expenditure Budget”) and (ii) if the Closing has not occurred on or prior to December 31, 2024, for the period beginning on January 1, 2025, the Company’s capital expenditure budget consistent with the 2024 Capital Expenditure Budget as adjusted for inflation as measured by the Consumer Price Index published by the U.S. Bureau of Labor Statistics, in the case of each of clause (i) and clause (ii), other than (A) expenditures made in response to operational emergencies or (B) capital expenditures that are not, in the aggregate, in excess of $10,000,000 per year; (N) except (i) to the extent required by this Agreement, applicable Law or the existing terms of any Company Benefit Plan or Contract or (ii) in connection with new hires or promotions in the ordinary course of business: (A) materially increase the compensation or benefits payable or to become payable to the directors or executive officers of the Company or any of its Subsidiaries, or any employee of the Company or any of its Subsidiaries with an annual base salary of $200,000 or more, or any independent contractor, (B) other than the equity-based awards specially described on Sections 5.1(C) and 5.1(N) of the Company Disclosure Schedule, grant any equity or equity-based awards to, or discretionarily accelerate the vesting or payment of any equity or equity-based awards held by, any current or former Service Provider, (C) materially amend any Company Benefit Plan, or establish, adopt, or enter into any new such arrangement that if in effect on the date hereof would be a material Company Benefit Plan other than any such actions which are in the ordinary course of business, (D) terminate (other than for cause) the employment of or hire any employee with an annual base salary of $200,000 or more; or (E) materially amend any existing Contract with an independent contractor or establish, adopt or enter into any Contract with an independent contractor; (O) announce, implement or effect any reduction in force, layoff, or other program resulting in the termination of employees of the Company or its Subsidiaries, in each case, that would trigger requirements pursuant to the Worker Adjustment and Retraining Notification Act of 1988 or any similar foreign, state or local Law; (P) other than as required by applicable Law, recognize any new union, works council or similar representative of labor as the representative or certified bargaining agent of any of the employees of the Company or its Subsidiaries, or establish, adopt, enter into or amend any Labor Contract; (Q) make any change in the Company’s accounting policies, practices, principles, methods or procedures, other than as required by changes in GAAP or in Regulation S-X of the Exchange Act, or under applicable Law; (R) except in connection with litigation related to or arising from the enforcement of a party’s rights under this Agreement against the other party, compromise, settle, release, waive or discharge, or agree, offer or propose to compromise, settle, release, waive or discharge, any Proceeding or threatened Proceeding (excluding any Proceeding or threatened Proceeding relating to Taxes) involving or against the Company or any of its Subsidiaries that results in a payment obligation (net of insurance proceeds) of the Company or any of its Subsidiaries in excess of $2,000,000 individually or $10,000,000 in the aggregate, or that imposes any material restrictions or limitations upon the assets, operations or business of the Company or any of its Subsidiaries or material equitable or injunctive remedies or the admission of any criminal wrongdoing; (i) make (except in the ordinary course of business), change or revoke any material Tax election, (ii) adopt or change any material Tax accounting method or change any annual Tax accounting period, (iii) settle or compromise any material Tax claim, audit, assessment or other Proceeding with respect to Taxes, (iv) file any material amended Tax Return, (v) surrender any right to claim a material refund of Taxes, (vi) agree or consent to an extension or waiver of the statute of limitations with respect to the assessment or determination of any material Taxes (other than extensions of time to file Tax Returns), (vii) enter into any closing agreement with a Governmental Entity with respect to material Taxes or (viii) except if undertaken in connection with transactions identified and subject to the parameters set forth on Section 5.1(D) of the Company Disclosure Schedule, take any action otherwise allowed under the exceptions set out in Section 5.1(D)(v), Section 5.1(E)(iii), Section 5.1(F), Section 5.1(G) or Section 5.1(H) with respect to the Retained Subsidiaries that materially amend increases the Tax liability of the Company and its Subsidiaries, taken as a whole; (T) agree, resolve, authorize or enter into any Contract or otherwise make any commitment to do any of the Company’sforegoing. Notwithstanding anything herein to the contrary, nothing contained in this Agreement shall give Parent or Merger Sub the right to control or direct the operations of the Company prior to the consummation of the Merger, and the Company shall exercise, consistent with the terms and conditions of this Agreement, control and supervision over its business operations.

Conduct of Business by the Company Pending the Closing. Except for matters The Company agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 6.01 5.1 of the Company Disclosure Letter or otherwise expressly permitted as specifically contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company), from the date other provision of this Agreement to the Effective TimeAgreement, or unless Parent shall otherwise consent in writing, the Company shall, and shall cause each of its Subsidiaries Company Subsidiary to, use its commercially reasonable efforts to (ix) maintain its existence in good standing under applicable Law, (y) subject to the restrictions set forth in this Section 5.1, conduct its business operations only in the ordinary and usual course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (iiz) use commercially reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present the current officers, key employees and key independent contractorsconsultants of the Company and each Company Subsidiary and, and to preserve the goodwill current relationships of the Company and business relationships the Company Subsidiaries with their customers, supplierssuppliers and other persons with which the Company or any Company Subsidiary has significant business relations, licensors, licensees and others having in each case as is reasonably necessary in order to preserve substantially intact its business relationships with themorganization. In addition, and without limiting the generality of the foregoing, except for matters as set forth in Section 6.01 5.1 of the Company Disclosure Letter or otherwise expressly permitted as specifically contemplated by any other provision of this Agreement, from the date of this Agreement to the Effective Time, the Company shall not and shall not permit any of its Subsidiaries to (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the CompanyCompany and its Subsidiaries), between the date of this Agreement and shall not permit any of its Subsidiaries tothe Effective Time, do directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent: (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 of any class, or other rights of any kind to acquire any shares of such capital stock or other Equity Interests of the Company or any Company Subsidiary, except that the Company may issue shares of Company Common Stock pursuant to the Company ESPP or upon exercise of Company Options and may grant Company Options in the ordinary course of business consistent with past practice; (i) sell, pledge, dispose of, transfer, lease, license or encumber (other than pursuant to Permitted Liens) any material property or assets (other than Company Intellectual Property) of the Company or any Company Subsidiary, except (A) sales, pledges, dispositions, transfers, leases, licenses or encumbrances pursuant to and in accordance with the terms of existing Contracts, or (B) sales, pledges, dispositions, transfers, leases, licenses or encumbrances of property or assets by the Company or a Company Subsidiary in the ordinary course of business; (ii) sell, pledge, dispose of, transfer, lease, license, abandon, fail to maintain or encumber any Company Intellectual Property, except sales, pledges, dispositions, transfers, leases, licenses, abandonments, failures to maintain or encumbrances in the ordinary course of business which will not materially impair the conduct of the Company’s business; (iii) enter into any Contract or series of related Contracts, or any amendment or series of related amendments of one or more Contracts, outside of the ordinary course of business consistent with past practice and involving aggregate receipts, payments or expenses (direct, contingent or otherwise) in excess of $500,000 in any fiscal quarter; or (iv) enter into any material commitment or transaction outside 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 the capital stock of the Company or enter into any agreement with respect to the voting of the capital stock of the Company; (e) (i) reclassify, combine, split or subdivide 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, or (ii) redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other securities; (f) (i) incur any indebtedness for borrowed money (other than debt incurred in the ordinary course of business consistent with past practice) 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, in each case except for indebtedness for borrowed money under the Company’s existing credit facilities or replacement credit facilities in an aggregate amount not larger than the Company’s existing credit facilities, (ii) terminate, cancel, or agree to any material and adverse change in, any Company Material Contract, (iii) make or authorize capital expenditures other than consistent with past practices and in any event not in excess of $3.0 million in the aggregate during any fiscal quarter, (iv) make or authorize any material loan to any person (other than a Company Subsidiary) outside the ordinary course of business and consistent with past practice or (v) enter into any agreement or arrangement that limits or otherwise restricts the Company or any of its Subsidiaries or any of their respective Affiliates or any successor thereto, or that could, after the Effective Time, limit or restrict Parent or any of its Affiliates (including the Surviving Corporation) or any successor thereto, from engaging or competing in any line of business or in any geographic area; (g) 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 Section 3.8 of the Company Disclosure Letter, (i) increase the compensation or benefits payable or to become payable to its directors, officers or employees (except for increases in accordance with past practices and methodologies in salaries or wages of officers and/or employees of the Company or any Company Subsidiary), (ii) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary (other than with respect to newly appointed directors and newly hired employees in accordance with past practices of the Company or any Company Subsidiary, provided that any such agreements shall not provide for the payment of any severance or termination pay as a result of the execution of this Agreement or the consummation of 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 director, officer, consultant or employee outside the ordinary course of business consistent with past practices, except to the extent required by applicable Law, (iv) close any facility or engage in any mass layoff that could implicate the WARN Act, or (v) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan or Company Option; (h) make any material change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice or except as required by GAAP or by a Governmental Entity; (i) except in the ordinary course of business consistent with past practice, make any material Tax election or settle or compromise any material Tax liability or refund, change any annual Tax accounting period or material method of Tax accounting, file any material amendment to a Tax Return, enter into any closing agreement relating to any material Tax, surrender any right to claim a material Tax refund or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment; (j) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or, except as necessary in connection with the exercise of the Company’s rights under Section 6.4, standstill agreement to which the Company is a party and which relates to a business combination involving the Company; (k) write up, write down or write off the book value of any assets, individually or in the aggregate, for the Company and the Company Subsidiaries taken as a whole, other than in the ordinary course of business or except as required by GAAP; (l) except as necessary in connection with the exercise of the Company’s rights under Section 6.4, take any action to render inapplicable, or to exempt any third party from, any Takeover Law; (m) acquire, or agree to acquire, from any person any assets (not including Intellectual Property), operations, business or securities or engage in, or agree to engage in, any merger, consolidation or other business combination with any person, except in connection with capital expenditures permitted hereunder and except for acquisitions of inventory and other assets (not including Intellectual Property) in the ordinary course of business or, which, individually or in the aggregate, would not be reasonably expected to result in the failure to satisfy, or material delay in satisfying, any of the conditions to the Merger set forth in Article 7; (n) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article 7 not being satisfied; (o) adopt a stockholder rights plan or agreement or “poison pill”; (p) acquire, or agree to acquire, from any person, any Intellectual Property, except in the ordinary course of business consistent with past practice (including in size and nature); (q) without Parent’s prior written consent, which consent shall not be unreasonably withheld withheld, enter into any confidentiality or delayed:similar obligations which could prohibit the Company from providing or disclosing any agreement, contract or other arrangement to Parent; (ar) (i) amend authorize or propose enter into any agreement or otherwise make any commitment to amend the Company’s certificate of incorporation or bylaws or similar governing documents, or materially amend or propose to materially amend do any of the Company’sforegoing; or (s) cause or permit to expire without renewal, fail to renew or make any material modification to any material insurance policy to which the Company or any Company Subsidiary is a party.

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the (a) The Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company)agrees that, from the date of this Agreement to through the earlier of the Effective TimeTime and the date of the termination of this Agreement in accordance with Section 7.1 (“Termination”), except as set forth in Section 5.1(a) of the Company Disclosure Schedule or as expressly provided 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 shallwill, and shall will cause each of its Subsidiaries the Company Subsidiary to, (i) conduct its operations only in the ordinary and usual course of business consistent with past practice, (ii) use commercially reasonable efforts to keep available the services of the current officers and key employees of the Company and the Company Subsidiary and maintain the goodwill and current relationships of the Company and the 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, (iv) use commercially reasonable efforts to maintain the Company’s and the Company Subsidiary’s books, accounts and records in the ordinary course of business consistent with past practice (including, without limitation, preparing for and conducting an audit as used in the preparation of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), Company Financial Statements and (iiv) use commercially reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers, key employees and key independent contractors, and preserve the goodwill and business relationships comply in all material respects with customers, suppliers, licensors, licensees and others having business relationships with them. In addition, and without all applicable Laws. (b) Without limiting the generality of the foregoing, except for matters as set forth in Section 6.01 5.1(b) of the Company Disclosure Letter Schedule or otherwise as expressly permitted contemplated by any other provision of this Agreement, the Company shall not (except as required by applicable Law), and shall not permit the Company Subsidiary to (except as required by applicable Law), from the date of this Agreement to through the earlier of the Effective Time, Time and the Company shall not date of the termination of this Agreement in accordance with Section 7.1 (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company“Termination”), and shall not permit any of its Subsidiaries todirectly or indirectly, do or agree to do, any of the following without the prior written consent of Parent, Parent (which consent shall not be unreasonably withheld withheld, delayed or delayed:conditioned): (a) (i) i. amend or propose to amend the Company’s otherwise change its certificate of incorporation or bylaws or similar governing documentsequivalent organizational documents as in effect on the date of this Agreement; ii. issue, sell, pledge, dispose of, grant, transfer or encumber, or materially 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 conversion of any Preferred Shares or the exercise of Company Options and Warrants, in each case outstanding on the date hereof, in accordance with their respective terms; provided, however, that the amendment of any Company Stock Option Plan or Company Option in order to consummate the Merger in accordance with the terms of this Agreement, in a form reasonably acceptable to Parent, shall not require the consent of Parent; iii. sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets of the Company or the Company Subsidiary, except pursuant to existing contracts or commitments or the sale or purchase of inventory 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; iv. 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 or distributions paid by the Company Subsidiary to the Company) or enter into any agreement with respect to the voting or registration of its capital stock; (A) take any action that would trigger the anti-dilution adjustment provisions in the Certificates of Designation for the Series E Shares and Series F Shares or (B) 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 (x) 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, (y) as a result of conversion of Preferred Shares or (z) the amendment of any Company Stock Option Plan or Company Option in order to consummate the Merger in accordance with the terms of this Agreement; vi. 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; vii. 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 purchases and orders for inventory, equipment and supplies in the ordinary course of business consistent with past practice or as otherwise permitted under Section 5.1(b)(xviii) hereof; viii. incur any Indebtedness, except for: (i) short-term borrowings incurred in the ordinary course of business made or incurred in connection with the purchase of equipment and supplies and on terms consistent with past practice; (ii) borrowings pursuant to the Company Credit Facility existing as of the date of this Agreement; and (iii) trade payables with extended payment terms that are incurred in the ordinary course of business consistent with past practices and that have extensions of no greater than one (1) year; ix. 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; x. 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 (including, for the avoidance of doubt, entering into any new Lease Agreements or Contracts relating to the ownership of or title to any real property); xi. fail to make any material or known filing required to be filed by the Company or the Company Subsidiary when due (subject to any extensions), pay any material or known fee required to be paid by the Company or the Company Subsidiary when due (subject to any extensions), or take any other reasonable step to maintain the ownership, effectiveness, validity or enforceability of any material Company Intellectual Property; xii. 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 with respect to compensation, severance or termination pay in existence on the date of this Agreement as disclosed in Section 3.13(b) of the Company Disclosure Schedule: (A) increase the compensation or benefits payable or to become payable to its (w) directors, (x) officers, (y) employees with annualized base compensation in excess of $100,000 or (z) other employees with respect to increases outside the ordinary course of business consistent with past practice; (B) grant any rights to severance or termination pay to, or enter into any employment, change in control, retention, severance or similar agreement with, any director, officer or employee of the Company or the Company Subsidiary, or establish, adopt, enter into or amend any plan, program, policy, agreement or other arrangement that would be a Company Benefit Plan if in effect on the date hereof; (C) take any action to amend or propose waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan; or (D) terminate the employment of, or hire, any (x) officer, (y) employee with annualized base compensation in excess of $100,000 of the Company or the Company Subsidiary or (z) other employee outside the ordinary course of business consistent with past practice; xiii. enter into any collective bargaining agreement or other Contract with a labor union; xiv. 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; xv. compromise, settle or agree to materially amend settle any Action (including any Action relating to this Agreement or the transactions contemplated hereby) other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that involve only the payment of monetary damages not in excess of $50,000 individually or $100,000 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; xvi. make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; xvii. adopt or change in any material respect its Tax accounting policies, practices, principles, methods or procedures, or its annual accounting period, except as required by GAAP or applicable Law, in which case written notice shall be provided to Parent and Merger Sub, (ii) 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, or (iv) consent to any extension or waiver of any limitation period with respect to any claim or assessment for Taxes that are material in amount; xviii. make any individual capital expenditure in excess of $100,000, and capital expenditures in the aggregate in excess of $300,000, except as expressly contemplated by the capital expenditure budget previously provided to Parent and those capital expenditures for the repair or replacement of the Company’s or Company Subsidiary’s property that has been (A) damaged or destroyed and is funded by the proceeds of any casualty insurance covering such property or (B) failed and reasonably requires replacement in order for the Company or the Company Subsidiary, as applicable, to continue to conduct its business in the ordinary course consistent with past practice (such as an HVAC system failure); xix. fail to use reasonable efforts to maintain in full force and effect the Company’s or the Company Subsidiary’s material current insurance (or reinsurance) policies or comparable replacement policies; or xx. authorize or enter into any Contract, or otherwise make any commitment, whether orally or in writing, to do any of the Company’sforegoing.

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the (a) The Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company)agrees that, from between the date of this Agreement to and the earliest of the Effective TimeTime and the valid termination of this Agreement pursuant to Section 7.01, except as set forth in Section 5.01 of the Company Disclosure Schedule, expressly permitted by any other provision of this Agreement or as required by Law, unless Parent shall otherwise agree in writing (which agreement may not be unreasonably withheld, delayed or conditioned), the Company shall, and shall cause each of its Subsidiaries Company Subsidiary to, (i) conduct its business operations only in the ordinary course of business consistent with past practice (includingpractice, without limitationcomply, preparing for and conducting an audit in all material respects, with the requirements of all Laws applicable to the Company’s financial statements for the fiscal year ending December 31Company or a Company Subsidiary, 2005 in a manner consistent with past practice)maintain all material Company Permits, and (ii) use commercially reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers, key employees its and the Company Subsidiaries’ officers and key independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with thememployees. In addition, and without Without limiting the generality of the foregoing, and as an extension thereof, except for matters as set forth in Section 6.01 5.01 of the Company Disclosure Letter or otherwise Schedule, as expressly permitted by any other provision of this AgreementAgreement or as required by Law, from the Company shall not, and shall cause each Company Subsidiary to not, between the date of this Agreement to and the earlier of the Effective TimeTime and the valid termination of this Agreement in accordance with its terms, the Company shall not (unless required by applicable Law directly or the regulations indirectly, do, or requirements of any stock exchange or regulatory organization applicable agree to the Company)do, and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) except as provided in Section 5.01(b): (i) amend or propose to amend otherwise change the Company’s Company Certificate or Company Bylaws or any Company Subsidiaries’ certificate of incorporation or bylaws or similar governing equivalent organizational documents, or materially amend or propose to materially amend any of the Company’s;

Conduct of Business by the Company Pending the Closing. Except for matters Between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, except as set forth in Section 6.01 5.1 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement (or Schedule, as required by applicable Law or the regulations or requirements of as otherwise expressly required by any stock exchange or regulatory organization applicable to the Company), from the date other provision of this Agreement Agreement, or with the prior written consent of Parent (not to the Effective Timebe unreasonably withheld, conditioned or delayed), the Company shallwill, and shall will cause each of its Subsidiaries to, (i) conduct its business operations only in the ordinary course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practicepractice (except as otherwise required by this Agreement or required or recommended by any Governmental Entity to mitigate, or attempt to mitigate, health and safety risks associated with COVID-19), and (ii) use its commercially reasonable efforts to preserve intact their respective business organizations and goodwill, (x) keep available the services of their respective present the current officers, key employees and key independent contractors, consultants of the Company and each of its Subsidiaries and to preserve the goodwill and business current relationships of the Company and each of its Subsidiaries with customers, suppliers, licensors, licensees suppliers and others having other Persons with which the Company or any of its Subsidiaries has business relationships with them. In additionrelations, and without (y) maintain and preserve intact its current operations and material assets. Without limiting the generality of the foregoing, except for matters as set forth in Section 6.01 5.1 of the Company Disclosure Letter Schedule, as required by applicable law or as otherwise expressly permitted required by any other provision of this Agreement, from the date of this Agreement to the Effective Time, 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)not, and shall not permit any of its Subsidiaries to, do 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, which consent shall Parent (not to be unreasonably withheld withheld, conditioned or delayed:): (a) (i) amend or propose to amend the Company’s its certificate of incorporation or bylaws or similar governing documentsequivalent organizational documents (including by merger, consolidation or otherwise); (b) issue, sell, pledge, dispose of, grant, transfer or encumber any shares of capital stock of, or materially other Equity Interests in, the Company or any of its Subsidiaries of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities of the Company or any of its Subsidiaries, other than the issuance of Company Shares upon the exercise of Company Options or the settlement of Company RSUs or Company PSUs outstanding as of the date hereof in accordance with their existing 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 $250,000 individually or $500,000 in the aggregate, (iii) the sale of inventory in the ordinary course of business consistent with past practice, or (iv) the sale or license of Company products or services in the ordinary course of business consistent with past practice; (d) sell, assign, pledge, transfer, license, abandon, or otherwise dispose of any Intellectual Property of the Company or any of its Subsidiaries, except (i) the abandonment, in the ordinary course of business, of Company Owned Intellectual Property that in the Company’s reasonable business judgment is no longer used or useful in the business of the Company and its Subsidiaries and is no longer commercially practicable to maintain, (ii) the non-exclusive licensing or sublicensing of Company Intellectual Property to affiliates, customers, distributors, and customers in the ordinary course of business consistent with past practice, and (iii) the expiration of registered Intellectual Property at the end of its scheduled term; (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 (i) with respect to any wholly-owned Subsidiary of the Company, (ii) the acceptance of Company Shares as payment for the exercise price of Company Options or for withholding taxes incurred in connection with the exercise of Company Options or the settlement of Company RSUs or Company PSUs, in each case in accordance with past practice and the terms of the applicable Company Equity Plan and applicable award agreement(s), or (iii) the forfeiture of unvested Company Options, Company RSUs or Company PSUs upon termination of service; (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 (i) acquisitions of inventory, raw materials and other property in the ordinary course of business and (ii) any other acquisitions with a purchase price of less than $500,000 in the aggregate; (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 (i) in connection with refinancings of existing indebtedness on terms no less favorable to the Company (and in an aggregate principal amount not in excess of) such existing indebtedness, (ii) 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, and (iii) indebtedness not to exceed $500,000 in the aggregate; (j) make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Subsidiary of the Company) in excess of $500,000 in the aggregate; (k) terminate, cancel or renew, or agree to any material amendment to or waiver under any Company Material Contract, or enter into or amend any Contract that, if existing on the date hereof, would be a Company Material Contract, in each case other than in the ordinary course of business; (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 $1,000,000; (m) except to the extent required by (x) applicable Law, (y) the existing terms of any Company Benefit Plan disclosed in Section 3.11(a) of the Company Disclosure Schedule as in effect as of the date hereof, or (z) disclosed in Section 5.1(m) of the Company Disclosure Schedule: (i) increase the compensation or benefits payable or to become payable to any Service Provider, other than annual merit increases in annual base salary or base rate of pay for employees, in each case, in the ordinary course of business; (ii) amend any Company Benefit Plan (other than any administrative amendment that could not reasonably be expected result in a material additional cost to the Company or its affiliates, or obligate the Company or its affiliates to maintain such Company Benefit Plan beyond the one year anniversary of the Closing Date), or establish, adopt, enter into any new arrangement that if in effect on the date hereof would be a Company Benefit Plan (for the avoidance of doubt, including, any employment, severance, change in control, retention, bonus guarantee or similar agreement or arrangement); (iii) take any action to amend or propose waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan (including funding any grantor trust); (iv) pay or award, or commit to pay or award, any bonuses or incentive compensation (other than annual bonuses payable in the ordinary course of business during the first quarter of the Company’s fiscal year); (v) grant any equity-based or equity-linked awards; (vi) enter into any collective bargaining agreement, or any works council, labor union or similar agreement or arrangement; (vii) hire any employee or engage any individual independent contractor, other than to fill a position that is open as of the date of this Agreement or that becomes open in the ordinary course of business after the date of this Agreement due to the termination or resignation of an employee or individual independent contractor; provided that the annual salary or wage rate or consulting fee paid to such new employee or individual independent contractor shall not be materially amend greater than the market annual salary or wage rate or consulting fee paid with respect to such position (and, with respect to such positions that become open in the ordinary course of business due to the termination or resignation of such employee or individual independent contractor, as of immediately prior to the termination of the preceding employee or independent individual contractor); and provided further that the annual salary or wage rate or consulting fee paid to such new employee or individual independent contractor shall not be materially greater than the annual salary or wage rate or consulting fee as was paid to such employee or individual independent contractor who was terminated or resigned; (viii) terminate the employment (other than for cause) of any officer or any Service Provider with annual base salary or other payment in excess of $250,000; or (ix) promote any officers or employees, except for a promotion of any employee that is in the ordinary course of business and prior notice of which is provided to the Parent; (n) make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity; (o) compromise, settle or agree to settle any Proceeding other than compromises, settlements or agreements of Proceedings (excluding Transaction Litigation) in the ordinary course of business that involve only the payment of monetary damages not in excess of $250,000 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 of its Subsidiaries; (p) (i) make, change or revoke any material Tax election, (ii) change any of its methods of reporting income or deductions for Tax purposes (or file a request to make any such change), (iii) settle or compromise any material Tax liability, claim, audit or dispute, (iv) surrender any right to claim a material Tax refund, (v) file any amended Tax Return with respect to any Tax, (vi) enter into any Tax allocation, sharing, indemnity or closing agreement (other than any such agreement entered into in the ordinary course of business the principal purpose of which is unrelated to Tax), or (vii) waive or extend the statute of limitations with respect to any Tax other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business; (q) enter into any new line of business or materially alter any existing line of business, other than in the ordinary course of business; (r) voluntarily cancel, terminate or fail to renew (in a form and amount consistent with past practice) any material insurance policies covering the Company, any of its Subsidiaries or any of their respective businesses, assets or properties; or (s) authorize or enter into any Contract or otherwise make any legally-binding commitment to do any of the Company’sforegoing.

Conduct of Business by the Company Pending the Closing. Except for matters The Company covenants and agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 6.01 5.1 of the Company Disclosure Letter Schedule or otherwise as expressly permitted contemplated by any other provision of this Agreement (or as required by applicable Law or (provided, that if the regulations or requirements of any stock exchange or regulatory organization Company is required by applicable Law to take an action in conflict with this Section 5.1, it will, to the Companyextent permitted by Law, provide Parent with written notice in advance of taking such action), from the date of this Agreement to the Effective Timeunless Parent provides prior written consent (which consent will not be unreasonably withheld, delayed or conditioned), the Company shall, and shall cause each of its Subsidiaries to, (i) will conduct its business operations in the ordinary course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (ii) use commercially reasonable efforts to (i) preserve substantially intact their respective its business organizations and goodwillorganization, (ii) keep available the services of their respective present officers, its executive officers and key employees on commercially reasonable terms, (iii) maintain in effect all Company Permits, (iv) remain in compliance in all material respects with the Company Treasury Restrictions and key independent contractors, (v) maintain satisfactory relationships of the Company with any persons with which the Company has material business relations and preserve the goodwill with Governmental Entities that have jurisdiction over its Business and business relationships with customers, suppliers, licensors, licensees and others having business relationships with themoperations. In addition, and without Without limiting the generality of the foregoing, and as an extension thereof, except for matters as set forth in Section 6.01 5.1 of the Company Disclosure Letter Schedule or otherwise as expressly contemplated by any other provision of this Agreement or as required by applicable Law (provided, that if the Company or any other member of the Company Group is required by applicable Law to take an action in conflict with this Section 5.1, it will, to the extent permitted by this AgreementLaw, from provide Parent with written notice in advance of taking such action), the Company will not, between the date of this Agreement to and the Effective Time, directly or indirectly, do, or agree to do, or permit any other member of the Company shall not (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable Group to the Company)do, and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of Parent, Parent (which consent shall will not be unreasonably withheld, delayed or conditioned, except with respect to Section 5.1(a), (b), (d), (e), (h), (i)(i)(2), (r) and (y), which may be granted or withheld or delayed:in Parent’s sole discretion): (a) amend the Company Charter or Company Bylaws; (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 of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other ownership interest (including any such interest represented by Contract right), of the Company, other than (i) the issuance of Shares upon the vesting of Company RSU Awards, Company Performance Share Awards or 2022 Company Performance Share Awards (in each case, outstanding as of the date hereof) in accordance with their terms, (ii) the issuance of Shares upon any conversions of the 2025 Convertible Notes pursuant to the 2025 Convertible Notes Indenture and in accordance with Section 5.18, provided the Company shall not take any action that would result in an adjustment of the “Conversion Rate” (as defined in the 2025 Convertible Notes Indenture) of the 2025 Convertible Notes, other than in connection with the entry into or the consummation of the transactions contemplated by this Agreement, (iii) the issuance of Shares upon the exercise of the Company Warrants outstanding as of the date hereof or (iv) as set forth on Section 5.1(b) of the Company Disclosure Schedule; (c) sell, pledge, abandon, dispose of, transfer, lease, license or encumber (other than pursuant to Permitted Liens) any material Trademarks or material property or assets of the Company (other than non-exclusive grants of licenses in Intellectual Property Rights in the ordinary course of business), except pursuant to, or as required by, Contracts in effect as of the date of this 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 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, or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or other securities, except for the vesting or settlement of any Company Equity Award or to fund any Tax obligations in connection therewith; (f) merge or consolidate the Company 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; (g) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any Person or any division thereof or any assets, other than (i) the planned purchase of aircraft and associated equipment pursuant to Contracts in force on the date hereof as set forth in Section 5.1(g) of the Company Disclosure Schedule, (ii) the purchase of inventory, raw materials, equipment, goods, or other supplies in the ordinary course of business or (iii) any other acquisition (excluding acquisitions of engines) for consideration that is not individually in excess of $5,000,000 or in the aggregate in excess of $20,000,000; (h) enter into any new line of business; (i) (i) (1) repurchase, prepay or incur any indebtedness for borrowed money or issue any debt securities, or (2) issue or sell options, warrants, calls or other rights to acquire any debt securities of the Company, in each case (1) and (2), other than (A) for the financing or lease of aircraft or associated equipment (including engines) pursuant to the Company Aircraft Finance Contracts or which the Company is otherwise contractually obligated as of the date hereof to purchase or lease, provided any such lease shall not have a term of greater than 12 years, and any pre-delivery deposits with respect to the foregoing, (B) under any Credit Card Contract, or (C) in connection with any drawdown or repayment on the revolving credit facility set forth on Section 5.1(i)(i)(C) of the Company Disclosure Schedule, (ii) make any loans, advances or capital contributions to, or investments in, any other Person in the aggregate in excess of $5,000,000, (iii) enter into any “keep well” or other Contract to maintain any financial statement or similar condition of another Person or enter into any arrangement having the economic effect of any of the foregoing or (iv) assume, guarantee or endorse, or otherwise become liable or responsible for similar obligations contemplated in clauses (i) and (ii) of any Person for borrowed money; (j) terminate, cancel or amend any Company Material Contract (other than as provided for under clause (i)), or cancel, modify or waive any material rights thereunder, or enter into or amend any Contract that, if existing on the date hereof, would be a Company Material Contract, in each case, other than in the ordinary course of business; (k) make or authorize any capital expenditure except for capital expenditure (i) detailed on the Company’s certificate annual capital expenditure budget (a copy of incorporation which in respect of 2022 has been set forth in Section 5.1(k) of the Company Disclosure Schedule), (ii) in respect of assets that are not, in the aggregate, in excess of $5,000,000, (iii) in connection with the planned purchase or bylaws delivery of aircraft or similar governing documentsassociated equipment (including engines) pursuant to Contracts in effect as of the date hereof and disclosed on Section 5.1(k) of the Company Disclosure Schedule, (iv) required for compliance with FAA regulations applicable to the Company, including airworthiness directives or (v) in connection with any restoration, repair, maintenance or other necessary work for the proper functioning of the Company Aircraft; (l) except to the extent required by (i) applicable Law, (ii) the terms of any Company Benefit Plan or Company CBA, (iii) contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement that have been specifically noted in Section 3.12(a) of the Company Disclosure Schedule as providing for severance or termination pay or (iv) as expressly permitted under Section 5.1(b)(ii): (A) increase the compensation or benefits payable or to become payable to directors, officers or employees of the Company (except for increases to an employee who is not an “executive officer” as defined in Rule 3b-7 under the Exchange Act in the ordinary course of business), (B) other than with respect to newly hired employees on terms that are consistent with past practice for similarly situated employees of the Company, grant any additional rights to severance or termination pay to, or enter into any severance agreement with, any director, officer or employee of the Company, (C) other than (i) with respect to newly hired employees on terms that are consistent with past practice for similarly situated employees of the Company and (ii) routine amendments or renewals to health and welfare plans that would not result in a material increase in benefits, establish, adopt, enter into or materially amend any bonus, profit sharing, thrift, pension, retirement, deferred compensation, retention, termination or propose severance plan, agreement, trust, fund, policy or arrangement for the benefit of any Service Provider, (D) loan or advance any money or property to any Service Provider (other than in connection with ordinary course business expense reimbursement and advances) or (E) (x) except with respect to the open positions set forth in Section 5.1(l) of the Company Disclosure Schedule, hire or terminate the employment (other than terminations for cause, death or disability) of any employee with the title of “Senior Vice President” or above; (m) (i) terminate, discontinue, close or dispose of any facility or business operation, or lay off any employees (other than layoffs of less than 50 employees in any six month period other than in the ordinary course of business), or (ii) implement any early retirement or separation program, or any program providing early retirement window benefits or announce or plan any such action or program for the future; (n) other than in the ordinary course of business or as otherwise required in connection the Company’s or its Affiliates’ contractual or legal obligation to negotiate in good faith with a labor union, enter into or amend any collective bargaining agreement; provided, that, the Company shall use commercially reasonable efforts to keep Parent reasonably informed of material communications between the Company and a labor union in connection with any such negotiation or collective bargaining agreement; (o) forgive any loans to Service Providers or any of their respective affiliates; (p) make any material change in accounting policies, practices, principles, methods or procedures in effect as of December 31, 2021, other than as required by GAAP or by Law; (q) enter into, terminate or materially amend any Company Related Party Transaction; (r) implement any material new policies or practices (or make any material changes to existing policies or practices) with respect to equity, interest rate, currency or commodity derivatives or hedging transactions; (s) compromise, settle or agree to settle any Proceeding, other than any compromise, settlement or agreement in the ordinary course of business for the payment of monetary damages (and compliance with confidentiality and other similar customary provisions) by the Company of $2,500,000 or less as its sole remedy; (t) (i) make, change, or revoke any material Tax election, (ii) settle or compromise any claim, assessment, audit, proceeding, or other controversy, or enter into any “closing agreement” within the meaning of Section 7121 of the Company’sCode (or any similar provision of state, local, or foreign Law) in respect of material Taxes, (iii) adopt or change any material Tax accounting method or period, (iv) file or amend any material Tax Return or take any position on any material Tax Return filed on or after the date of this Agreement that is inconsistent with elections made or positions taken in preparing or filing similar Tax Returns in prior periods, (v) surrender any right to claim a material Tax refund, or (vi) consent to any extension or waiver of the statute of limitations applicable to any material Tax claim or assessment;

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company), from the date of this Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its business in the ordinary course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s 's financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (ii) use commercially reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers, key employees and key independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with them. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, 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 of its Subsidiaries to, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend the Company’s certificate of incorporation or bylaws or similar governing documents, or materially amend or propose to materially amend any of the Company’s

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company), from the date of this Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its business in the ordinary course of business consistent with past practice (including, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (ii) use commercially reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers, key employees and key independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with them. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, 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 of its Subsidiaries to, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend the Company’s certificate of incorporation or bylaws or similar governing documents, or materially amend or propose to materially amend any of the Company’s’s Subsidiaries’ certificate of incorporation or bylaws or similar governing documents, (ii) split, combine or reclassify their outstanding capital stock or issue or authorize the issuance of any other security in respect or, in lieu of, or in substitution for, shares of its capital stock, (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise, except for the payment of dividends or distributions to the Company or any of its Subsidiaries by a Subsidiary of the Company, (iv) merge or consolidate with any Person (other than a merger among wholly-owned Subsidiaries of the Company or a merger between the Company and its wholly-owned Subsidiaries), or (v) enter into any agreement with respect to the voting of its capital stock or other securities held by the Company or any of its Subsidiaries; (b) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any shares of, or any options, warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for such capital stock, except that (i) the Company may issue Shares (A) upon the exercise of Company Purchase Rights outstanding on the date hereof or hereafter granted in accordance with the provisions of subclause (iv) of this clause (b), (B) upon exercise of Company Stock Options outstanding on the date hereof or hereafter granted in accordance with the provisions of subclause (ii) or (iii) of this clause (b) or (C) in accordance with the terms of the Company Rights Agreement as in effect on the date hereof, (ii) the Company may grant Company Stock Options to purchase up to an aggregate of 100,000 Shares to new employees of the Company or its Subsidiaries in accordance with the terms of the Company Stock Plans consistent with past practice and with an exercise price per Share no less than the fair market value of a Share on the date of grant, (iii) the Company may grant Company Purchase Rights in accordance with the terms of the Company ESPP (as in effect on the date hereof), subject to Section 3.06, and (iv) transactions exclusively among the Company and its Subsidiaries shall be permitted; (c) except for transactions exclusively among the Company and its Subsidiaries, (i) issue any debt securities, incur, guarantee or otherwise become contingently liable with respect to any indebtedness for borrowed money, or enter into any arrangement having the economic effect of any of the foregoing (other than in connection with accounts payable in the ordinary course of business consistent with past practice or borrowings under the existing credit facilities of the Company or any of its Subsidiaries in the ordinary course), (ii) make any loans, advances or capital contributions to, or investments in, any Person, (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock other than in connection with the exercise of outstanding Company Stock Options pursuant to the terms of the Company Stock Plans and the relevant written agreements evidencing the grant of Company Stock Options and repurchases of outstanding shares of Company Restricted Stock pursuant to the terms of the Company Restricted Stock Plan, (iv) make any material acquisition of any assets or businesses (including by merger, consolidation, acquisition of stock or assets, in-bound license transactions or otherwise) other than acquisitions the fair market value of the total consideration (including license, royalty or other fees) for which does not exceed, individually, $2,000,000 or, in the aggregate, $5,000,000 (provided that any such acquisition does not adversely affect the ability of Parent, Merger Sub and the Company to obtain applicable approvals under the Antitrust Laws), or (v) sell, pledge, assign, dispose of, transfer, lease, securitize or materially encumber any businesses or assets that are material to the Company and its Subsidiaries, taken as a whole (excluding Intellectual Property, which is addressed in Section 6.01(d)) other than (A) sales of inventory and other assets in the ordinary course of business, (B) sales or dispositions of assets in one or a series of transactions having an aggregate value of $3,000,000 or less, and (C) divestitures pursuant to Section 6.10 (including the divestiture of the Reloxin Assets); (d) (i) sell, pledge, assign, dispose of, transfer, securitize, lease or materially encumber any material Company Owned Intellectual Property or material Company Licensed Intellectual Property, or (ii) except in the ordinary course of business, as reasonably prudent to the conduct of the business or as provided for in Company Material Contracts in effect as of the date hereof, (A) exclusively license, abandon or fail to maintain any material Company Owned Intellectual Property or material Company Licensed Intellectual Property, (B) grant, extend, amend (except as required in the diligent prosecution of the material Company Owned Intellectual Property), waive or modify any rights in or to any material Company Owned Intellectual Property or material Company Licensed Intellectual Property, (C) fail to diligently prosecute the Company’s and its Subsidiaries’ material patent applications, or (D) fail to exercise a right of renewal or extension under any Company Material License; (e) (i) enter into any Contract or arrangement that reasonably may result in payments by or liabilities of the Company in excess of $1,000,000 individually or $3,000,000 in the aggregate in any 12-month period, or which materially limits or otherwise materially restricts the Company or any of its Subsidiaries or any of their respective affiliates or any successor thereto from engaging or competing in any line of business or in any geographic area, (ii) vary its inventory practices in any material respect from its past practices, except as required by GAAP or by Law, or (iii) make any capital expenditure or expenditures (including leases and in-bound licenses) in the aggregate in excess of the aggregate amount set forth in the Company’s budget provided to Parent prior to the date hereof (other than capital expenditures for unbudgeted repairs and maintenance in the ordinary course of business consistent with past practice); (f) grant, enter into or amend any employment, severance, change in control, special pay arrangement with respect to termination of employment or other similar arrangements or Contract with any directors, officers or employees of the Company or its Subsidiaries, except (i) as required pursuant to previously existing Contracts or policies between such current directors, officers or employees and the Company, (ii) pursuant to employment agreements entered into with a Person who is not already an officer of the Company in the ordinary course of business and is hired or promoted by the Company or one of its Subsidiaries after the date hereof in the ordinary course of business or (iii) to the minimum extent necessary to comply with Section 409A of the Code without increasing the benefits provided to any Person; (i) increase the salary, benefits or monetary compensation of any directors, executive officers or employees, except (A) for increases in the ordinary course of business, (B) pursuant to previously existing Contracts, (C) in connection with the assumption by such employee of new or additional responsibilities or (D) to respond to offers of employment made by other Persons, or (ii) establish, adopt, enter into, or materially amend any, collective bargaining agreement or bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination or severance plan, arrangement, trust, fund, policy or agreement, except to the minimum extent necessary to comply with Section 409A of the Code without increasing the benefits provided to any Person or as otherwise required by any other applicable Law; (i) accelerate, amend or change the period of exercisability or vesting of options, restricted stock or similar awards under any Company Stock Plan, except to the minimum extent necessary in order to comply with Section 409A of the Code without accelerating the exercisability or vesting of any such award, or (ii) authorize cash payments in exchange for any options granted under any of such plans except as required by the terms of such plans or any related agreements in effect as of the date hereof; (i) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration; (j) adopt, enter into, or amend any Company Benefit Plan to materially increase the benefits or Liabilities of any Company Benefit Plan or to accelerate the payment of benefits under any Company Benefit Plan, except (i) as involves any such then existing plans, agreements, trusts, funds or arrangements of any company acquired after the date hereof as permitted by this Agreement, or (ii) as required pursuant to existing Contracts or this Agreement; (k) change any method or principle of financial accounting in a manner that is inconsistent with past practice, except to the extent required by GAAP; (l) make any material Tax election or settle or compromise any material Tax liability or refund, or change any annual Tax accounting period or material method of Tax accounting, file any material amendment to a Tax Return, enter into any closing agreement relating to any material Tax, surrender any right to claim a material Tax refund, or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment, in each case, other than as required by Law; (m) 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 and which relates to a business combination or other similar extraordinary transaction; (n) take any action to render inapplicable, or to exempt any third Person from, (i) the provisions of Section 203 of the DGCL, or (ii) any other state takeover or similar Law or state Law that purports to limit or restrict business combinations or the ability to acquire or vote shares; (o) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied; or (p) agree, authorize or otherwise to take any of the foregoing actions.

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company), from Between the date of this Agreement to and the earlier of the Effective TimeTime and the termination of this Agreement in accordance with Article 7, except (a) as set forth in Section 5.1 of the Company Disclosure Schedule, (b) as required by applicable Law, (c) as otherwise expressly permitted or required by any other provision of this Agreement or (d) with the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed) (collectively, the “IOC Exceptions”), the Company shallwill, and shall will cause each of its Subsidiaries to, use its commercially reasonable efforts to (i) conduct its business operations in the ordinary course of business consistent with past practice (includingbusiness, without limitation, preparing for and conducting an audit of the Company’s financial statements for the fiscal year ending December 31, 2005 in a manner consistent with past practice), and (ii) use commercially reasonable efforts to preserve intact their respective its present business organizations and goodwillorganization, (iii) keep available the services of their respective present officers, the current officers and other key employees of the Company and key independent contractors, each of its Subsidiaries (other than where termination of such services is due to cause or resignation) and (iv) preserve the goodwill and business current relationships of the Company and each of its Subsidiaries with customers, suppliers, licensors, licensees suppliers and others having other Persons with which the Company or any of its Subsidiaries has material business relationships with themrelations. In addition, and without Without limiting the generality of the foregoing, except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Timeaccordance with an IOC Exception, 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)not, and shall not permit any of its Subsidiaries to, do 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 without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayedactions: (a) (iA) amend or propose to amend the Company’s its certificate of incorporation or bylaws or equivalent organizational documents (whether by merger, consolidation or otherwise), other than in connection with any action permitted pursuant to Section 5.1(H); (B) enter into any material new line of business outside the existing business of the Company and its Subsidiaries as of the date of this Agreement; (C) except as set forth on Section 5.1(C) of the Company Disclosure Schedule, issue, deliver, sell, pledge, dispose of, grant, award, transfer or encumber or authorize the issuance, delivery, sale, pledge, disposal, grant, award, transfer or encumbrance of any shares of capital stock of, or other Equity Interests in, the Company or any of its Subsidiaries, other than (i) the issuance of Shares (A) in accordance with the terms of the Company ESPP, or (B) upon the exercise of Company Options or vesting or settlement of Company RSUs outstanding as of the date hereof or granted in compliance with this Agreement, (ii) the issuance, sale, disposal, grant or transfer of Equity Interests of any wholly-owned Subsidiary of the Company to the Company or one or more other wholly-owned Retained Subsidiaries or (iii) the pledge of Equity Interests pursuant to the Existing Credit Agreement; (D) sell, assign, pledge, transfer, convey, lease, license, abandon, mortgage, guarantee or create or incur any Lien on or otherwise dispose of any material property, assets, securities, businesses or other interests (whether tangible or intangible) of the Company or any of its Subsidiaries (other than Intellectual Property), except (i) pursuant to Contracts in effect on the date hereof, (ii) the sale of inventory in the ordinary course of business, including inventory classified as fixed assets regularly sold by the Company, (iii) Permitted Liens, (iv) dispositions of obsolete or worthless equipment in the ordinary course of business, (v) pursuant to transactions solely among the Company and its wholly-owned Retained Subsidiaries or solely among wholly-owned Retained Subsidiaries of the Company or (vi) transactions identified and subject to the parameters set forth on Section 5.1(D) of the Company Disclosure Schedules; (E) sell, assign, pledge, transfer, convey, license, abandon, or incur any Lien other than Permitted Liens on or otherwise dispose of or fail to maintain any material Company Intellectual Property, except (i) in the ordinary course of business, (ii) pursuant to Contracts in effect on the date hereof, or (iii) pursuant to transactions solely among the Company and its wholly-owned Retained Subsidiaries or solely among wholly-owned Retained Subsidiaries of the Company; (F) declare, authorize, establish a record date for, 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 Retained Subsidiary of the Company; (G) reclassify, adjust, combine, split, subdivide or amend or otherwise change any terms of, or redeem, purchase or otherwise acquire, or otherwise offer to redeem, purchase or otherwise acquire, directly or indirectly, any shares of capital stock or other Equity Interests in the Company or any of its Subsidiaries, other than with respect to any of its wholly-owned Retained Subsidiaries; (H) merge or consolidate the Company or any of its Subsidiaries with any Person or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization or resolutions providing for a complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company, except with respect to any wholly-owned Retained Subsidiaries of the Company where no third party owns Equity Interests of such Retained Subsidiary after such action; (I) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise), directly or indirectly, any Person or assets, securities, properties, interests or businesses other than (i) acquisitions of inventory, containers, raw materials and other similar governing documentsproperty in the ordinary course of business and (ii) any acquisitions of Medical Waste Disposal businesses or assets in the United States or Canada with a purchase price of less than $10,000,000 in any single transaction or $20,000,000 in the aggregate and that would not, individually or in the aggregate, reasonably be expected to (1) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any permits, orders or other approvals of any Governmental Entity necessary to consummate the Merger or the expiration or termination of any applicable waiting period, (2) materially increase the risk of any Governmental Entity seeking an Order prohibiting the consummation of the Merger, (3) materially increase the risk of not being able to remove any such Order on appeal or otherwise, or (4) delay or prevent the consummation of the Merger; (J) incur or create any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for (whether directly, contingently or otherwise), the obligations of any Person (other than a wholly-owned Retained Subsidiary of the Company) for borrowed money, except (i) for borrowings under the Existing Credit Agreement or issuances of commercial paper for working capital and general corporate purposes in the ordinary course of business or (ii) in connection with the renewal of the Existing Credit Agreement not to exceed the maximum credit facility amount under the Existing Credit Agreement; provided, in no event shall the aggregate amount outstanding under the Company’s credit facilities exceed $1,550,000,000; (K) make any loans, advances or capital contributions to, or investments in, any other Person (other than a wholly-owned Retained Subsidiary of the Company), other than in the ordinary course of business in an amount not to exceed $5,000,000 in the aggregate; (L) (i) terminate, cancel or renew, or agree to any material amendment to, modification of, or waiver under, any Company Material Contract (other than (x) extensions and renewals of existing Company Lease Agreements in accordance with their terms, and (y) Company Material Contracts with the customers and suppliers of the Company as of the date hereof on terms that are not materially adverse to the Company and its Subsidiaries in the aggregate or are made in the ordinary course of business so long as the duration of such extension or renewal is less than five years), or (ii) enter into any Contract that, if existing on the date hereof, would be a Company Material Contract (other than Contracts (v) entered in the ordinary course of business, (w) that involve the payment or receipt of amounts or any of its Subsidiaries of less than $5,000,000 annually, (x) are for a duration of less than five years, (y) are not the type of Contracts described in Section 3.16(a)(v), (vii), (xi) or (xiv), and (z) that are not otherwise prohibited by the other subsections of this Section 5.1); (M) incur or make any capital expenditure, or any obligations or liabilities for payments in respect thereof, except for those contemplated by (i) the Company’s capital expenditure budget as disclosed to Parent prior to the date hereof (“2024 Capital Expenditure Budget”) and (ii) if the Closing has not occurred on or prior to December 31, 2024, for the period beginning on January 1, 2025, the Company’s capital expenditure budget consistent with the 2024 Capital Expenditure Budget as adjusted for inflation as measured by the Consumer Price Index published by the U.S. Bureau of Labor Statistics, in the case of each of clause (i) and clause (ii), other than (A) expenditures made in response to operational emergencies or (B) capital expenditures that are not, in the aggregate, in excess of $10,000,000 per year; (N) except (i) to the extent required by this Agreement, applicable Law or the existing terms of any Company Benefit Plan or Contract or (ii) in connection with new hires or promotions in the ordinary course of business: (A) materially increase the compensation or benefits payable or to become payable to the directors or executive officers of the Company or any of its Subsidiaries, or any employee of the Company or any of its Subsidiaries with an annual base salary of $200,000 or more, or any independent contractor, (B) other than the equity-based awards specially described on Sections 5.1(C) and 5.1(N) of the Company Disclosure Schedule, grant any equity or equity-based awards to, or discretionarily accelerate the vesting or payment of any equity or equity-based awards held by, any current or former Service Provider, (C) materially amend any Company Benefit Plan, or establish, adopt, or enter into any new such arrangement that if in effect on the date hereof would be a material Company Benefit Plan other than any such actions which are in the ordinary course of business, (D) terminate (other than for cause) the employment of or hire any employee with an annual base salary of $200,000 or more; or (E) materially amend any existing Contract with an independent contractor or establish, adopt or enter into any Contract with an independent contractor; (O) announce, implement or effect any reduction in force, layoff, or other program resulting in the termination of employees of the Company or its Subsidiaries, in each case, that would trigger requirements pursuant to the Worker Adjustment and Retraining Notification Act of 1988 or any similar foreign, state or local Law; (P) other than as required by applicable Law, recognize any new union, works council or similar representative of labor as the representative or certified bargaining agent of any of the employees of the Company or its Subsidiaries, or establish, adopt, enter into or amend any Labor Contract; (Q) make any change in the Company’s accounting policies, practices, principles, methods or procedures, other than as required by changes in GAAP or in Regulation S-X of the Exchange Act, or under applicable Law; (R) except in connection with litigation related to or arising from the enforcement of a party’s rights under this Agreement against the other party, compromise, settle, release, waive or discharge, or agree, offer or propose to compromise, settle, release, waive or discharge, any Proceeding or threatened Proceeding (excluding any Proceeding or threatened Proceeding relating to Taxes) involving or against the Company or any of its Subsidiaries that results in a payment obligation (net of insurance proceeds) of the Company or any of its Subsidiaries in excess of $2,000,000 individually or $10,000,000 in the aggregate, or that imposes any material restrictions or limitations upon the assets, operations or business of the Company or any of its Subsidiaries or material equitable or injunctive remedies or the admission of any criminal wrongdoing; (i) make (except in the ordinary course of business), change or revoke any material Tax election, (ii) adopt or change any material Tax accounting method or change any annual Tax accounting period, (iii) settle or compromise any material Tax claim, audit, assessment or other Proceeding with respect to Taxes, (iv) file any material amended Tax Return, (v) surrender any right to claim a material refund of Taxes, (vi) agree or consent to an extension or waiver of the statute of limitations with respect to the assessment or determination of any material Taxes (other than extensions of time to file Tax Returns), (vii) enter into any closing agreement with a Governmental Entity with respect to material Taxes or (viii) except if undertaken in connection with transactions identified and subject to the parameters set forth on Section 5.1(D) of the Company Disclosure Schedule, take any action otherwise allowed under the exceptions set out in Section 5.1(D)(v), Section 5.1(E)(iii), Section 5.1(F), Section 5.1(G) or Section 5.1(H) with respect to the Retained Subsidiaries that materially amend increases the Tax liability of the Company and its Subsidiaries, taken as a whole; (T) agree, resolve, authorize or enter into any Contract or otherwise make any commitment to do any of the Company’sforegoing. Notwithstanding anything herein to the contrary, nothing contained in this Agreement shall give Parent or Merger Sub the right to control or direct the operations of the Company prior to the consummation of the Merger, and the Company shall exercise, consistent with the terms and conditions of this Agreement, control and supervision over its business operations.

Conduct of Business by the Company Pending the Closing. Except for matters set forth in Section 6.01 of the Company Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company), from a) From the date of this Agreement to until the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Article 7 (the “Pre-Closing Period”), except as set forth in Section 5.1(a) of the Company Disclosure Letter, as required by Law or this Agreement, or otherwise with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, conduct its business in all material respects in the ordinary course of business consistent with past practice. During the Pre-Closing Period, except as set forth in Section 5.1(a) of the Company Disclosure Letter, as required by Law or this Agreement, or otherwise with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to (x) preserve substantially intact its present business organization, assets and technology, (y) keep available the services of its present officers and key employees, and (z) preserve intact its relationships with the key customers, suppliers, licensors, licensees, distributors and other persons with whom it has significant business relations, in each case consistent with past practice. Without limiting the generality of the foregoing, during the Pre-Closing Period, except as set forth in Section 5.1(a) of the Company Disclosure Letter, as required by Law or this Agreement, or otherwise with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause each of the its Subsidiaries not to: (i) conduct amend its Organizational Documents (whether by merger, consolidation or otherwise); (ii) (A) in the case of the Company, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any shares of its capital stock or other equity or voting interests or (B) redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any of its outstanding shares of capital stock or other equity or voting interests, except as permitted by the terms of the applicable Company Stock Plan, in connection with the cashless exercise of Company Options and/or the satisfaction of withholding tax obligations with respect to Company Options or Company Restricted Shares; (iii) (A) issue, deliver, pledge, dispose of, grant or sell, or authorize the issuance, delivery, pledge, disposition, grant or sale of, any shares of its capital stock or other equity or voting interests, or grant any options, warrants or other rights to acquire any such capital stock or other equity or voting interests or any instrument convertible into or exchangeable or exercisable for any such capital stock, other equity or voting interest, other than (1) the issuance of any Company Shares upon the exercise of Company Options or vesting of Company Restricted Shares or other equity awards or obligations under the Company Stock Plans in accordance with the terms of the applicable Company Stock Plan and the applicable award agreement existing on the date of this Agreement, or (2) the issuance of securities of any wholly owned Subsidiary of the Company to the Company or any other wholly owned Subsidiary of the Company; or (B) split, combine, subdivide or reclassify any shares of its capital stock or other equity or voting interests; (iv) amend any term of any of its securities or any of its Subsidiaries (whether by merger, consolidation or otherwise); (v) incur any capital expenditures in excess of $50,000 in the aggregate, except as budgeted in the Company’s current plan that was approved by the Company Board and Made Available to Parent; (vi) acquire, directly or indirectly, (A) any material assets other than supplies in the ordinary course of business consistent with past practice, or (B) securities, interests or businesses of any Person; (vii) sell, lease, license or otherwise transfer any of the material assets, securities, properties, interests or businesses of the Company or any of its Subsidiaries (other than Intellectual Property Rights, to which Section 5.1(a)(viii) applies), other than (A) transfers among or between the Company and any of its Subsidiaries, (B) transactions pursuant to existing Contracts, or (C) in the ordinary course of business consistent with past practice; (viii) (A) sell, assign or otherwise transfer or (B) xxxxx x Xxxx on, xxxxx a license, release, immunity or covenant not to xxx under or in respect of, or otherwise encumber, any material Company IP (other than the grant of non-exclusive licenses to customers in the ordinary course of business, to the extent such licenses are necessary for the respective customer’s use or receipt of Company Products and subject to terms and conditions (including as to confidentiality) that are consistent with past practice); (ix) cancel, fail to renew, fail to continue to prosecute, fail to protect or defend, abandon or allow to lapse any Company IP, other than abandonment of such Company IP that the Company determines in its reasonable judgment, in the ordinary course of business consistent with past practice, is no longer material to the Company; (x) make any loans, advances or capital contributions to, or investments in, any Person (other than the Company or any of its wholly owned Subsidiaries), other than advancement of expenses to employees in connection with the performance of their duties in the ordinary course of business consistent with past practice; (xi) (A) incur, assume or guarantee any Indebtedness other than (1) loans or advances from the Company or any of its wholly owned Subsidiaries to the Company or any of its wholly owned Subsidiaries incurred in the ordinary course of business consistent with past practice, (2) Indebtedness having an aggregate principal amount outstanding that is not in excess of $100,000 or (3) Indebtedness incurred under existing lines of credit in the ordinary course of business consistent with past practice, or (B) terminate or renew any existing credit facility; (xii) grant any Lien, other than Permitted Liens, on any of its material assets, securities, properties, interests or business of the Company or any of its Subsidiaries; (xiii) except as required by Law or any Plan or agreement existing as of the date of this Agreement or entered into in accordance with the terms of this Agreement: (A) increase any compensation or benefits payable or that could become payable by the Company or any of its Subsidiaries to directors, officers or employees, (B) establish, adopt, enter into, amend, terminate, exercise any discretion under, or take any action to accelerate (or exercise any discretion to accelerate) rights under any Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Plan if it were in existence as of the date of this Agreement, (C) establish, adopt or materially amend any collective bargaining agreement or Plan, (D) fund any rabbi trust or similar arrangement, (E) grant or amend any equity or equity-based awards or (F) hire, replace, or terminate (other than for cause) the employment or services of any officer, employee, independent contractor or consultant whose compensation exceeds $150,000 per annum; (xiv) change in any material respect its methods of accounting or accounting practices, except as required by GAAP or SEC rules and regulations; (xv) except as may be required by Law and other than in the ordinary course of business, make or change any material Tax election or any election pursuant to Section 7701 of the Code and the Treasury Regulations thereunder with respect to any of the Company’s Subsidiaries, or change any material accounting method for Taxes; (xvi) settle or compromise any material claim relating to Taxes, amend any Tax Return, or consent to any waiver or extension of any statute of limitations with respect to material Taxes of the Company or any of its Subsidiaries; (xvii) except as provided or permitted under this Agreement (including, without limitation, Section 5.3), adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or file a petition in bankruptcy under any provisions of applicable bankruptcy law on its behalf, or consent to the filing of any bankruptcy petition against it under any similar Law; (xviii) create any Subsidiary; (xix) change in any material respect the policies or practices regarding accounts receivable or accounts payable or fail to manage working capital in all material respects in accordance with past practice; (xx) enter into, amend, accelerate, cancel, fail to exercise an expiring renewal option, grant a material waiver under or modify in any material respect or terminate any Company Material Contract or any Contract that would constitute a Company Material Contract if in effect as of the date of this Agreement, in each case, other than in the ordinary course of business consistent with past practice and except for renewals or terminations in accordance with the terms of any Company Material Contract; (includingxxi) settle or compromise any material pending or threatened Proceeding, without limitationother than settlements or compromises that (A) require payment by the Company or any of its Subsidiaries in settlement or compromise of amounts that do not, preparing for individually or in the aggregate, exceed $100,000 (excluding amounts covered by insurance) and conducting an audit (B) do not involve any material injunctive or equitable relief or impose restrictions that are material to the business of the Company’s financial statements Company and its Subsidiaries, taken as a whole; (xxii) commence any Proceeding other than for the fiscal year ending December 31, 2005 routine collection of invoices or enforcement of this Agreement; (xxiii) forgive any loan to any other Person (other than loans to any wholly-owned Subsidiary in a manner the ordinary course of business consistent with past practice), and ; (iixxiv) use commercially reasonable efforts to preserve intact their respective enter into a new line of business organizations and goodwill, keep available the services or abandon or discontinue any existing line of their respective present officers, key employees and key independent contractors, and preserve the goodwill and business relationships with customers, suppliers, licensors, licensees and others having business relationships with them. In addition, and without limiting the generality of the foregoing, business; (xxv) except for matters set forth in Section 6.01 of the Company Disclosure Letter or as otherwise expressly permitted by this Agreement, from enter into any material transaction with any stockholder, director or executive officer of the date Company or any of the Subsidiaries of the Company, other than advancement of expenses to its employees in connection with the performance of their duties in the ordinary course of business consistent with past practice; or (xxvi) authorize, agree (by Contract or otherwise), resolve, commit or otherwise become obligated to do any of the foregoing. (b) Nothing contained in this Agreement is intended to give Parent or Purchaser, directly or indirectly, the right to control or direct the operations of the Company or any of its Subsidiaries prior to the Effective Time, and nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct the operations of Parent or Purchaser. Prior to the Effective Time, each of Parent and the Company shall not (unless required by applicable Law or exercise, consistent with the regulations or requirements terms and conditions of any stock exchange or regulatory organization applicable to the Company)this Agreement, complete control and shall not permit any of supervision over its Subsidiaries to, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (a) (i) amend or propose to amend the Company’s certificate of incorporation or bylaws or similar governing documents, or materially amend or propose to materially amend any of the Company’sand its Subsidiaries’ respective operations.