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

Conduct of Business by the Company Pending the Merger. The Company agrees that, between the date of this Agreement and the Appointment Time (as defined in Section 7.03(c)), unless Parent shall otherwise agree in writing, the businesses of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, be conducted only in, and the Company and the Subsidiaries shall not take any action except in the ordinary course of business and in a manner consistent with past practice; and the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers, and other persons with which the Company or any Subsidiary has significant business relations; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) amend or otherwise change its Certificate of Incorporation or By-Laws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any direct or indirect wholly owned Subsidiary to the Company or any other Subsidiary; (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant of the Company or any Subsidiary; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) 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, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and consistent with past practice), or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Company; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization; or (n) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the Appointment Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (i) as defined may be required by Law, (ii) as may be agreed to in writing by Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), (iii) as may be expressly permitted by this Agreement, (iv) except as may be required pursuant to the Spin-Off Agreements or (v) as set forth in Section 7.03(c)), unless Parent shall otherwise agree in writing6.1 of the Company Disclosure Schedule, the businesses business of the Company and the Subsidiaries shallits subsidiaries, except as otherwise expressly contemplated other than CPEX (which shall not be restricted by this AgreementSection 6.1, but solely to the extent that an action set forth below taken (in the case of negative covenants) or not taken (in the case of affirmative covenants) by CPEX would not have any adverse impact on the Company after giving effect to the Spin-Off and would not reasonably be expected to prevent or materially delay the consummation of the transactions hereunder), shall be conducted only in, and the Company and the Subsidiaries such entities shall not take any action except in in, the ordinary and usual course of business and business, in a manner consistent with past practice; practice in all material respects and in compliance with all applicable Laws in all material respects and, to the Company shall use its reasonable best efforts to preserve substantially intact the business organization extent consistent therewith, each of the Company and the Subsidiariesits subsidiaries shall use their respective commercially reasonable efforts to (x) subject to prudent management of workforce needs and ongoing programs currently in force, to keep available the services of the current officers, employees preserve its business organization intact and consultants of the Company maintain its existing relations and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries goodwill with customers, suppliers, distributors, creditors, lessors, employees and other persons with which business associates, (y) maintain and keep material properties and assets in good repair and condition, subject to ordinary course wear and tear, and (z) maintain in effect all material governmental permits necessary to the current operation of the business the Company or any Subsidiary has significant business relations; providedof its subsidiaries. The Company agrees with Buyer that, howeverexcept as set forth in clauses (i) through (iv) above, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would (and, as applicable, shall cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and its subsidiaries not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent:to): (a) amend or otherwise change its Certificate of Incorporation or the Company Certificate, the Company By-Laws laws, or such equivalent organizational documentsdocuments of any of its subsidiaries; (b) issue, deliver, sell, pledge, dispose ofdispose, encumber, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) subject to any Lien any shares of its or units (if applicable) of its subsidiaries’ capital stock, any class of capital stock or other type of equity interests of the Company or any Subsidiaryvoting securities, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of its or units (as applicable) of such its subsidiaries’ capital stock or other type of equity interestsstock, or any “phantom” stock, “phantom” stock rights, stock appreciation rights, stock based performance units, or other ownership interest (includingequity-based awards, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable including pursuant to Company Stock Options and Company Stock Awards outstanding contracts as in effect on the date hereof hereof; provided, however, that (i) the Company may issue shares upon exercise of any Company Option or payment of any Restricted Stock Unit outstanding as of the date hereof, and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company may issue shares as required by the Equity-Providing Employment Agreements, provided that any such shares to be issued under the Equity-Providing Employment Agreements shall be issued prior to the Equity Adjustment Date, or any Subsidiary, except in if issued thereafter shall be taken into account for purposes of Section 3.1(b) as though issued prior to the ordinary course of business and in a manner consistent with past practiceEquity Adjustment Date; (c) (i) declare, set asideauthorize, make or pay any dividend or other distribution, distribution payable in cash, stock, property or otherwise, with respect to the Company’s or any of its subsidiaries’ capital stock, except for other than dividends paid by any direct or indirect wholly owned Subsidiary subsidiary of the Company to the Company or any wholly-owned subsidiary of the Company, (ii) split, combine or reclassify any of its capital stock or issue, authorize the issuance of any other Subsidiarysecurities in respect of, in lieu of or in substitution for, shares of its capital stock or alter any term of any of the Company’s or any of its subsidiaries’ outstanding securities, (iii) effect any recapitalization, reclassification or like change in the capitalization of the Company or any of its subsidiaries or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities, except for issuances, purchases, redemptions or other acquisitions of capital stock or other securities required under the terms of any plans (including Company Benefit Plans) existing on the date hereof between the Company or any of its subsidiaries, on the one hand, and any director or employee of the Company or any of its subsidiaries, on the other hand; provided, however, that dividends, issuances or distributions may be made in connection with the Spin-Off, but only to the extent made in accordance with Spin-Off Agreements; (d) reclassify, combine, split, subdivide or redeemexcept (i) as required pursuant to existing written agreements executed prior to, or purchase Company Benefit Plans in effect as of, the date hereof, or otherwise acquire(ii) insofar as it creates no additional liability to the Company or any subsidiary, directly (A) increase the compensation or indirectly, any of its capital stock, except for the repurchase other benefits payable or reacquisition of securities in connection with the termination of service of any employee, director to become payable (including unusual or consultant extraordinary bonuses) to (x) directors or executive officers of the Company or any Subsidiary; of its subsidiaries or (ey) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) 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, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant employees of the Company or any Subsidiaryof its subsidiaries except, in the case of this clause (y), except for advances of business expenses in the ordinary course of business and consistent with past practicepractice (including, for this purpose, the normal salary and bonus review process conducted each year), (B) grant any severance or termination pay to (except pursuant to existing agreements, plans or policies), or grant enter into any security interest in severance agreement with any (x) director or executive of the Company or any of its assets subsidiaries or (including Intellectual Propertyy) except employee of the Company or any of its subsidiaries except, in the case of this clause (y), in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent (C) enter into any employment agreement with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers employee of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or (D) establish, adopt, enter into or amend any collective bargainingbargaining agreement, 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 directorcurrent or former directors, officer officers or employeeemployees or any of their beneficiaries, except for as would not result in a material increase to the Company in the cost of maintaining such amendments as may be necessary or desirable to cause any such collective bargaining agreement, plan, agreement, trust, fund, policy or arrangement, or (E) establish, adopt, amend or terminate any Company Benefit Plan, or any other plan, policy or arrangement to comply with Section 409A that would have been a Company Benefit Plan had it existed as of the Code so date hereof. (e) except as may be required under the Company Benefit Plans or the Equity-Providing Employment Agreements, grant, confer or award options, convertible securities, restricted stock units or other rights to avoid acquire any of its or its subsidiaries’ capital stock or take any action to cause to be exercisable any otherwise unexercisable option under any Company Option Plan; provided that any equity based grants to be made under the imposition Equity-Providing Employment Agreements shall be made prior to the Equity Adjustment Date, or if made thereafter shall be taken into account for purposes of additional tax with respect theretoSection 3.1(b) as though made prior to the Equity Adjustment Date; (gf) take (i) other than between the Company and any actionof its subsidiaries, or among wholly owned subsidiaries, make any loans, advances or capital contributions to, any other person, other than reasonable (but only as permitted under applicable Law), to employees and usual actions consultants in respect of expenses incurred in the ordinary course of business and consistent with past practice, with respect to accounting the Company’s expense reimbursement policies or proceduresthe applicable consulting arrangement as in effect on the date hereof; or (ii) pay any management, consulting or similar fee to any affiliate or stockholder (other than employees or directors of the Company in accordance with the ordinary course of business consistent with past practice); (g) acquire or agree to acquire (including by merger, consolidation, or acquisition of equity or debt securities or assets) any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets in connection with acquisitions or investments which is material to the Company and its subsidiaries, taken as a whole; (h) make incur any material tax election long-term indebtedness for borrowed money or settle or compromise guarantee any material United States federal, state, local or non-United States income tax liability; such indebtedness for any person except for indebtedness (i) payincurred under the Company’s existing credit facilities or incurred to replace or renew any existing indebtedness, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently ii) incurred in the ordinary course of business and consistent in an amount that, in the aggregate, does not exceed $1,000,000, (iii) for which CPEX shall be the sole obligor (and for which the Company and its subsidiaries other than CPEX shall not be obligated, including pursuant to any guarantee thereof) following the Spin-Off, or (iv) incurred in order to satisfy any Tax obligation related solely to the distribution of the shares of CPEX pursuant to the Spin-Off (including any gain under Treasury Regulation Section 1.1502-13 with past practicerespect to the CPEX Sub Preferred Stock (as defined in the Spin-Off Agreements) which is taken into account at the time of the Spin-Off) that may come due prior to the Effective Time (provided, that such indebtedness may be prepaid at any time without penalty); (i) cancel any indebtedness payable to the Company, or (ii) waive or assign any claims or rights of substantial value other than in the ordinary course of business; (j) amendmake any new, modify or enter into any commitment for, capital expenditure or expenditures which, in the aggregate, are in excess of $1,000,000, except for capital expenditures or expenditures made in the ordinary course of business consistent with past practice (including any capital expenditure set forth on any operating budget in effect at the time this Agreement is executed) and disclosed to Buyer prior to the date hereof; (k) make or change any material Tax election, adopt or change any accounting method for Tax purposes, file any material amended Tax Return, enter into any closing agreement with respect to, or otherwise settle, any material Tax claim or assessment relating to the Company or any of its subsidiaries, surrender any right to claim a refund of material Taxes, or consent to any extension or waiver of the termination limitation period applicable to any Tax claim or assessment relating to the Company or any of its subsidiaries; (which for the avoidance of doubt shall not include the expiration of l) (i) modify, amend or terminate any Material Contract other (A) than in accordance the ordinary course of business consistent with its terms) of any Material Contractpast practice, or amend(B) if so modified, waiveamended or terminated would, individually or in the aggregate, reasonably be expected to (x) have a Company Material Adverse Effect, (y) impair in any material respect the ability of the Company to perform its obligations under this Agreement or (z) prevent or materially delay the consummation of the transactions contemplated by this Agreement or (ii) modify or consent amend the Spin-Off Agreements in a manner adverse to the termination of Company or Buyer; (m) make any material rights change to its methods, principles or practices of accounting in effect at December 31, 2007 or revalue any material assets of the Company or any Subsidiary thereunderof its subsidiaries, in except (i) as required by GAAP (or any interpretation thereof) or Regulation S-X of the Exchange Act, or as required by a manner adverse in Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any material respect similar organization), (ii) to permit the audit of the Company’s financial statements in compliance with GAAP, or (iii) as required by a change in applicable Law; (kn) commence other than in the ordinary course of business consistent with past practice, (i) sell, lease, license, transfer, exchange or settle swap, sell and leaseback, mortgage or otherwise encumber (including securitizations), or subject to any Lien (other than Permitted Liens) or otherwise dispose of any material Actionportion of its properties or assets, except (A) for transactions among the Company and its wholly-owned subsidiaries or among the Company’s wholly-owned subsidiaries, (B) pursuant to existing agreements in effect prior to the execution of this Agreement, (C) as may be required by applicable Law or any Governmental Authority in order to permit or facilitate the consummation of the transactions contemplated hereby, or (D) properties or assets exclusively related to or used in the Drug Delivery Business in accordance with the Spin-Off Agreements; or (ii) enter into, modify, amend or terminate any material Lease; (lo) permit other than in the ordinary course of business consistent with past practice, settle any material item of Company Registered Intellectual Property to lapse or to be abandonedaction, dedicatedsuit, or disclaimed, fail to perform or make any applicable filings, recordings investigation or other similar actions or filingsproceeding which, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item the aggregate, require an out-of-pocket expense in excess of Company Registered Intellectual Property$500,000; (mp) adopt a plan sell, transfer or license to any person or otherwise extend, amend or modify any material rights to the Company Intellectual Property Rights other than (i) in the ordinary course of complete business consistent with past practice, (ii) pursuant to the Spin-Off Agreements, or partial liquidation(iii) as between the Company and its subsidiaries, dissolution, recapitalization or other reorganizationamong wholly-owned subsidiaries of the Company; or (nq) announce an intention, authorize or enter into any formal or informal written agreement or otherwise make a commitment, any commitment to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the Appointment earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1 (as defined in Section 7.03(c)the “Pre-Closing Period”), unless except (i) as may be required by Law, (ii) as may be agreed in writing by Parent (which consent shall otherwise agree not be unreasonably withheld, delayed or conditioned), (iii) as may be expressly permitted pursuant to this Agreement, or (iv) as set forth in writingSchedule 5.1 of the Company Disclosure Schedules, (w) the businesses business of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, its subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in the ordinary course of business and in a manner consistent with past practicepractice in all material respects; and (x) the Company shall use its reasonable best efforts to preserve substantially intact the its business organization of the Company and the Subsidiariesorganization, to keep available the services of the current officers, its officers and employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers, and other those persons having business relationships with which the Company or any Subsidiary has significant of its subsidiaries, in each case in the ordinary course of business relations; providedconsistent with past practice and (y) without limiting the generality of the foregoing, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracynot, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, not permit any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitationits subsidiaries, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parentto: (a) amend or otherwise change its the Amended and Restated Certificate of Incorporation or By-Laws the Amended and Restated Bylaws of the Company (or such equivalent organizational documentsor governing documents of any of its subsidiaries), or enter into or adopt any “poison pill” or similar stockholder rights plan; (b) (i) issue, sell, pledge, dispose ofdispose, grant or encumber, grant, confer or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) award any shares of its or units (if applicable) of any class of its subsidiaries’ capital stock or other type of equity interests of the Company or any Subsidiarystock, or any options, warrants, restricted stock units, convertible securities or other rights of any kind to acquire any shares of its or units its subsidiaries’ capital stock or take any action not otherwise contemplated by this Agreement to cause to be exercisable any otherwise unexercisable option under any existing stock plan; provided, however, that (x) the Company may issue shares upon the exercise of any Company Option outstanding as applicableof the date hereof and (y) the Company may exchange LLC Units solely as required by and consistent with Section 2.1(e); (ii) except as may be required by applicable Law or applicable organizational or governing documents, convene any special meeting (or any adjournment thereof) of such the stockholders of the Company; or (iii) enter into any agreement or understanding or arrangement or other contract with respect to the voting or registration of the shares of the Company’s or its subsidiaries’ capital stock or other type of securities or equity interests, or any interests (other ownership interest (including, without limitation, any phantom interestthan entry into an Acceptable Confidentiality Agreement), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practice; (c) (i) declare, set asideauthorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to the Company’s or any of its subsidiaries’ capital stock, voting securities or other equity interests, other than (A) dividends and distributions paid by a direct or indirect wholly owned subsidiary of the Company to its parent in the normal course of business consistent with past practice, (B) “Tax Distributions” contemplated by the Limited Liability Company Agreement of Norcraft Companies, LLC and (C) the TRA Termination Payments under the Company Tax Receivable Agreements (or substantially equivalent payments pursuant to the Tax Receivable Termination Agreements) immediately prior to the Merger Closing; (ii) split, combine or reclassify any of its capital stock, except voting securities or other equity interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for dividends by shares of its capital stock, voting securities or other equity interests; or (iii) purchase, redeem or otherwise acquire any direct shares of capital stock, voting securities or indirect wholly owned Subsidiary to other equity interests, or any other securities of the Company or any rights, warrants, calls or options to acquire any such shares of capital stock, voting securities or other Subsidiaryequity interests, except as contemplated by this Agreement or the Exchange Agreement; (d) reclassifyexcept as required pursuant to existing written agreements or Company Benefit Plans in effect as of the date hereof or as otherwise required by Law, combine, split, subdivide (i) increase the compensation or redeem, other benefits payable or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of to become payable to any employee, director director, executive officer, consultant or consultant independent contractor of the Company or any Subsidiary; of its subsidiaries that is a natural person (e) (i) acquire (includingeach, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnershipa “Company Person”), other business organization or than increases in cash compensation to any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken Person engaged as a wholeconsultant or independent contractor who earns, as currently conducted and (B) acquisitions after such increase, annual compensation of inventory and supplies that less than $100,000 or, in the case of employees who are consistent with past practice); (ii) 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, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant neither directors nor officers of the Company or any Subsidiary)of its subsidiaries, except for advances of business expenses increases in cash compensation in the ordinary course of business and consistent with past practice), or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries(including, wagesfor this purpose, bonusesthe normal salary and bonus review process conducted each year), incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or (ii) grant any severance or termination pay to, or enter into any employment or severance agreement with, any directorCompany Person, officer (iii) enter into any employment agreement or consultant or independent contractor agreement (other employee of than an “at will” agreement that may be terminated by the Company without cost or penalty) with any Company Person, other than a Company Person engaged as a consultant or independent contractor who earns annual compensation of any Subsidiaryless than $100,000, or (iv) establish, adopt, enter into or amend any collective bargainingCompany Benefit Plan, (v) grant any awards under any bonus, profit-sharingincentive, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance performance or other plan, agreement, trust, fund, policy compensation plan or arrangement for or Company Benefit Plan or (vi) amend or modify any outstanding equity award other than to the benefit extent required by the terms of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto;this Agreement. (ge) take directly or indirectly acquire (including by merger, consolidation, or acquisition of stock or assets) any actionperson or any division or material amount of assets; provided, however, this Section 5.1(e) shall not limit the Company’s ability to purchase inventory or other than reasonable and usual actions assets in the ordinary course of business and consistent with past practicepractice or pursuant to existing contracts to which the Company or any of its subsidiaries is a party; (f) directly or indirectly (i) sell, lease, license, mortgage, sell and leaseback or otherwise encumber or subject to any Lien (other than Permitted Liens) or otherwise dispose of any of its properties or other assets or any interests therein whether tangible or intangible (including securitizations), with value in excess of $1,000,000, other than sales of inventory and obsolete equipment in the ordinary course of business consistent with past practice or (ii) enter into, modify or amend any lease of real property; (g) (i) incur any long-term indebtedness for borrowed money or guarantee any such indebtedness for any person, (ii) make any loans, advances or capital contributions to, or investments in, any other person (other than the Company or any of its wholly owned subsidiaries) or (iii) repay, redeem, repurchase or otherwise retire, or otherwise make any payment in respect of, any indebtedness for borrowed money or any debt securities, or any rights, warrants, calls or options to accounting policies or proceduresacquire any debt securities, other than as required by their terms as in effect on the date of this Agreement; (h) make any material tax election or settle or compromise any material United States federalcapital expenditure, statewhich is in excess of $1,000,000, local or non-United States income tax liabilityexcept as set forth in the budget delivered to Parent prior to the date hereof (which is included in Schedule 5.1(h) of the Company Disclosure Schedule); (i) pay(i)(A) enter into, discharge (B) modify or satisfy amend in any claim, liability material respect or obligation (absolute, accrued, asserted modify or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in amend outside the ordinary course of business or (C) terminate any Company Material Contract, (ii) waive, release or assign any material rights or claims thereunder, (iii) renew or enter into any non-compete, exclusivity, non-solicitation, “most favored nation” or similar provision or agreement that would restrict or limit the operations of the Company and consistent with past practiceits affiliates or the Surviving Corporation or its affiliates after the Effective Time or (iv) enter into, of liabilities reflected modify, amend or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practiceterminate any Company Affiliate Transaction; (j) amendchange its fiscal year or, modify except as required by GAAP or consent to the termination (which for the avoidance of doubt shall not include the expiration of applicable Laws, make any Material Contract change in accordance with its terms) of any Material Contractaccounting methods, principles or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Companypractices; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization; (l) grant any material refunds, credits, rebates or other allowances to any supplier or customer, other than in the ordinary course of business consistent with past practice; (m) except as required by applicable Law, fail to pay any Taxes as they become due and payable, make (other than a Tax election previously made with respect to prior Tax periods and consistent with such past practice) or change any Tax election, file any amended Tax Return, change any method of Tax accounting, or settle or compromise any audit or proceeding relating to Taxes; (n) enter any new line of business or abandon or discontinue any existing line of business; (o) (i) take any action that would reasonably be expected to result in the cancellation of existing material insurance policies or material insurance coverage of the Company or any of its subsidiaries or adopt any change in the structure, terms or scope of such insurance policies or coverage or (ii) otherwise fail to maintain in full force and effect existing insurance policies; provided that in the event of a termination, cancellation or lapse of any material insurance policy, the Company shall promptly obtain replacement policies providing insurance coverage with respect to the material assets, operations and activities of the Company and its subsidiaries as currently in effect as of the date hereof; (p) (A) settle, pay, discharge, compromise or satisfy any proceeding (other than Stockholder Litigation, which is addressed exclusively in Section 5.6) where such settlement, payment, discharge, compromise or satisfaction would (x) require the payment by the Company and/or any of its subsidiaries of any amount in excess of $500,000 or (y) impose any restrictions or limitations upon the operations or business of Company or any of its subsidiaries, whether before, on or after the Effective Time or (B) institute or commence any proceeding outside the ordinary course of business consistent with past practice; (q) make any increase in the fee arrangement with the Company’s third party financial advisor, the calculation of which has been disclosed to Parent; (r) take any action that would reasonably be expected to prevent or materially delay the consummation of the Transactions; or (ns) announce an intentionauthorize, commit, resolve or enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company agrees that, between From the date of this Agreement and hereof until the Appointment Time (as defined in Section 7.03(c))Effective Time, unless Parent shall otherwise agree consent in writing, the businesses which consent shall not be unreasonably withheld, delayed or conditioned, or except as listed on Section 7.1 of the Company and Disclosure Letter, as otherwise permitted by or provided for in this Agreement or as required by Applicable Law, the Subsidiaries Company shall, except as otherwise expressly contemplated by this Agreement, be conducted only in, and shall cause each of the Company and the Subsidiaries shall not take any action except to, (x) conduct its business in the ordinary course of business and in a manner consistent with past practice; practice and (y) to the Company shall extent consistent with the foregoing clause (x) use its commercially reasonable best efforts to preserve substantially intact the its business organization of the Company and the Subsidiariespreserve in all material respects its relationships with all Governmental Entities, to keep available the services of the current officers, employees and consultants of the Company current creditors, and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with any customers, suppliers, vendors, licensors and other persons licensees with which the Company or any Subsidiary it has significant material business relations; provided, however, that (1) no action by the Company or the Company Subsidiaries with respect to matters specifically addressed by any provision of Section 7.1(a) through (p) shall not be required deemed a breach of clauses (x) or (y) unless such action would constitute a breach of such specific provision. In addition to take any action pursuant to this and without limiting the generality of the foregoing, except as listed on Section 6.01 that would cause any representation or warranty 7.1 of the Company set forth Disclosure Letter, as otherwise permitted by or provided for in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise as required by this Section 6.01 shall be deemed to constitute a breach ofApplicable Law, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between from the date of this Agreement and hereof until the Appointment Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company shall not, and shall not permit any Company Subsidiary to: (a) amend adopt or otherwise propose any change in its Certificate of Incorporation or By-Laws or equivalent organizational documentsConstituent Documents; (b) issuedeclare, sellauthorize, pledgeset aside or pay any stockholder dividend or other distribution, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, except for (i) any shares dividend or units distribution by a Company Subsidiary to the Company or another Company Subsidiary and (if applicableii) the payment of regular quarterly cash dividends (which, for the avoidance of doubt, shall not exceed the amount of the regular quarterly cash dividends paid by the Company during the previous twelve (12) months); (c) adopt any class plan or agreement of capital stock complete or partial liquidation, dissolution, restructuring, recapitalization or other type of equity interests reorganization of the Company or any Company Subsidiary, or merge or consolidate with any options, warrants, convertible other Person or acquire any assets or equity or debt securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interests, or interests in any other ownership interest Person, except (including, without limitation, i) that a Company Subsidiary may merge with another wholly-owned Company Subsidiary and (ii) for any phantom interest), acquisitions (including by way of merger) by the Company or any Company Subsidiary (except of any Person providing for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets purchase price consideration (including Intellectual Propertyany related earnouts or indebtedness) in an amount not in excess of Thirty Million Dollars ($30,000,000) in the Company or any Subsidiaryaggregate and (iii) for acquisitions of inventory, except supplies and other assets in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any direct or indirect wholly owned Subsidiary to the Company or any other Subsidiary; (d) reclassifysell, combineassign, splittransfer, subdivide or redeemlease, or purchase license, subject to an Encumbrance (other than a Permitted Encumbrance), cancel, abandon or otherwise acquiresurrender, directly relinquish or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service dispose of any employee, director assets or consultant property of the Company or any Company Subsidiary, other than (i) in the ordinary course of business consistent with past practice (including non-exclusive licenses of Intellectual Property granted in the ordinary course of business consistent with past practice) (for the avoidance of doubt, the sale, lease or other disposition of any business line, business unit or any material portion of the assets of the Company or any Company Subsidiary is not “in the ordinary course of business” for purposes of this clause (d)), (ii) pursuant to existing written contracts or commitments, (iii) cancellations and abandonments of Intellectual Property that would not be material to the operations of the Company or any Company Subsidiary and as determined by the Company’s personnel responsible for filing and maintaining such Company Owned IP using their reasonable business judgment or (iv) in an amount not in excess of Thirty Million Dollars ($30,000,000) in the aggregate; (e) (i) acquire issue, sell, grant, pledge or otherwise encumber any shares of its capital stock or other securities (includingincluding any options, without limitation, by merger, consolidationwarrants or any similar security exercisable for, or acquisition of convertible into, such capital stock or assets other security) or enter into any amendment of any term of any of its outstanding securities (other than issuances of Common Shares (A) in respect of the exercise of Options outstanding on the date hereof, (B) in respect of the settlement of Restricted Stock Rights or Performance Restricted Stock Units outstanding on the date hereof and (C) pursuant to Performance Restricted Stock Units and/or Restricted Stock Rights granted to new hires in accordance with Section 7.1(h)), (ii) accelerate the vesting of any Options, Performance Restricted Stock Units or Restricted Stock Rights (other than as required pursuant to preexisting contractual commitments), (iii) split, combine, subdivide or reclassify any shares of capital stock or any other business combination) any corporation, partnership, other business organization equity interests of the Company or any division thereof Company Subsidiary or (iv) purchase or redeem any shares of capital stock or any other equity interests of the Company or any Company Subsidiary or any rights, warrants or options to acquire any material amount of assets (such shares or interests, other than (A) as otherwise contractually required, (B) any license such purchases or redemptions by a wholly-owned Company Subsidiary with respect to such Company Subsidiary’s own capital stock or other equity interests or (C) in connection with the exercise of Intellectual Property Options or the vesting of Performance Restricted Stock Units or Restricted Stock Rights (including in connection with any required withholding Taxes related to such exercise or vesting); (f) incur, guarantee or assume any indebtedness or make any loans, advances or capital contributions to, or investments in, any Person, other than (i) borrowings under the Company’s existing revolving credit facility in an amount not in excess of Thirty Million Dollars ($30,000,000) in the aggregate, or (ii) any intercompany indebtedness, loan, advance, capital contribution or investment; (g) enter into any collective bargaining agreement or other agreement with a labor union, works council or similar organization; (h) other than as required by the terms of any applicable agreement or Company and Benefit Plan in existence on the Subsidiaries that is not material to the business date of this Agreement or as set forth on Section 7.1(h) of the Company Disclosure Letter (i) increase the compensation or benefits of any current or former directors or officers of the Company at the level of vice president or above (except for merit salary increases in the ordinary course of business and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practicepractice to employees who are not executive officers); , (ii) incur any indebtedness for borrowed money provide increases in salaries, wages and benefits (and communicate increases in bonuses to the extent bonuses are based on salary or issue any debt securities wage level) of independent contractors or assume, guarantee employees who are not at the level of vice president or endorse, above or otherwise become responsible for, the obligations of any person, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant directors of the Company or any Subsidiary), except for advances of business expenses (other than annual merit salary increases in the ordinary course of business and consistent with past practice), (iii) enter into any change-in-control, retention, employment, severance, termination or grant other similar agreement with any security interest current or former director, employee or independent contractor, (iv) establish, adopt, terminate or materially amend any Company Benefit Plan (or award thereunder) or any plan, program, arrangement, practice or agreement that would be a Company Benefit Plan if it were in existence on the date hereof, except to the extent that such amendment would not result in more than a de minimis increase to the cost to the Company under such arrangement or plan, (v) pay any bonus to any current or former director, employee, officer, or independent contractor of the Company, (vi) 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, (vii) promote any Company Employee who is an officer to a position more senior than such Company Employee’s position as of the date of this Agreement, or promote a Company Employee who is below the level of vice president to a position at the level of vice president or above, in each case other than promotions to fill a position that exists as of the date of this Agreement that is thereafter vacated, (viii) take any action to accelerate the payment, or to fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan or (ix) forgive any loans, or issue any loans (other than routine travel or business expense advances issued in the ordinary course of business), to any current or former employee, officer, director or independent contractor of the Company; provided, however, that the foregoing clauses (i) through (iv) shall not restrict the Company or any of its assets Subsidiaries from entering into or making available to newly hired employees who are below the level of vice president or to employees in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business, plans, agreements, benefits and compensation arrangements (including Intellectual Propertyincentive grants) except that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions or from continuing to make cash awards to employees who are below the level of vice president in the ordinary course of business and consistent with past practice; ; (i) change any method of accounting or accounting principles or practices followed by the Company or any Company Subsidiary, except for any such change required by a change in U.S. GAAP or as recommended by the Company’s audit committee or independent auditors; (j) pay, discharge, settle or satisfy (i) any material litigation (other than litigation in connection with (x) this Agreement or the transactions contemplated hereby or (y) violations of any Healthcare Law), arbitration, proceeding, investigation, order, claim, liability or obligation outside the ordinary course of business or that would result in any liability in excess of Thirty Million Dollars ($30,000,000) in the aggregate or such greater amount reserved therefore or reflected on the balance sheets included in the Company Reports, (ii) any material litigation in connection with this Agreement or the transactions contemplated hereby, other than any settlement or compromise that (A) does not involve any monetary payment (other than reimbursement of attorneys’ fees) and (B) does not impose any material restrictions on the business of the Company, any Company Subsidiary, the Surviving Corporation or on Parent or any of its Subsidiaries (after giving effect to the transactions contemplated by this Agreement) or (iii) any material litigation, arbitration, proceeding, investigation, order, claim, liability or obligation with a Governmental Entity in connection with violations of any Healthcare Law; (k) fail to maintain, or terminate or cancel, other than in the ordinary course of business, any insurance coverage maintained by the Company or any Company Subsidiary with respect to any material assets, properties and businesses of the Company or any Company Subsidiary without replacing such coverage with a comparable amount of insurance coverage; (l) (i) enter into any new contract that would have been a Company Contract if it had been entered into prior to the date of this Agreement or agreement (ii) amend on terms materially adverse to the Company, cancel or terminate any Company Contract, in each case, other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (jm) amendmake or authorize any new capital expenditures other than capital expenditures set forth in the 2015 budget materials provided to Parent and any other capital expenditures not in excess of Thirty Million Dollars ($30,000,000) in the aggregate; (n) (i) make, modify change or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of revoke any material rights Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any material closing agreement with respect to Taxes, settle any material Tax claim, audit, assessment or dispute, surrender any right to claim a refund of a material amount of Taxes, take any action which is reasonably likely to result in a material increase in the Tax liability of the Company or any Subsidiary thereunderthe Company Subsidiaries, or, in respect of any taxable period (or portion thereof) ending after the Closing Date, the Tax liability of Parent or the Surviving Corporation; or (ii) file the 2014 federal consolidated income Tax Return without (A) providing Parent with a manner draft form of such Tax Return at least fifteen (15) Business Days before filing; it being understood that such Tax Return may not be complete at that time; and (B) considering in good faith any comments reasonably requested by Parent that are provided to the Company at least seven (7) Business Days before filing; (o) (i) terminate (prior to the expiration of such Company Real Property Lease), or (except as permitted by clause (ii) of this Section 7.1(o)) modify or amend on terms materially adverse in any material respect to the Company; , any of the Company Real Property Leases, (kii) commence renew, extend, or settle exercise any material Action; option to renew or extend any of the Company Real Property Leases, other than (lA) permit for any material item renewals or extensions of Company Registered Intellectual Real Property Leases expiring prior to lapse or to be abandonedthe date that is fifteen (15) months after the date hereof, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each case, solely in the ordinary course of business consistent with past practice for additional periods of no more than twelve (12) months (in the aggregate with respect to any such Company Real Property Lease) at a cost per month of no more than 105% of the current costs per month under such Company Real Property Lease, and every material item solely provided that the Company notifies Parent of each such renewal or extension reasonably promptly after it is effected or (B) any renewals or extensions of Company Registered Intellectual Property; Real Property Leases in accordance with automatic renewal terms or (miii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization; or (n) announce an intention, enter into any formal new contract that, if in effect on the date of this Agreement, would be a Company Real Property Lease, except that the Company shall be permitted to enter into such new leases for the purpose of relocating from a current space to another for additional periods of no more than twelve (12) months at a cost per month of no more than 105% of the current costs per month under the prior Company Real Property Lease for that space, and solely provided that the Company notifies Parent of each such relocation reasonably promptly after it is effected; or informal agreement (p) agree or otherwise make a commitment, commit to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between prior to the date of this Agreement and the Appointment Time (as defined in Section 7.03(c))Effective Time, unless Parent shall otherwise agree consent in writing, the writing (such consent not to be unreasonably withheld or delayed) or except as expressly permitted or required pursuant to this Agreement: (a) The businesses of the Company and the Company Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, shall be conducted only inin the ordinary and usual course of business and consistent with past practices, and the Company and the Company Subsidiaries shall not take any action except in the ordinary course of business and in a manner consistent with past practice; and the Company shall use its all commercially reasonable best efforts to maintain and preserve substantially intact the their respective business organization of the Company organizations and the Subsidiariesto maintain significant beneficial business relationships with suppliers, contractors, distributors, customers, licensors, licensees and others having business relationships with them and to keep available the services of their current key officers and employees; and (b) Without limiting the current officersgenerality of the foregoing Section 5.1(a), employees except as set forth in Section 5.1 of the Company Disclosure Letter or as contemplated by Section 2.4(a), the Company shall not directly or indirectly, and consultants shall not permit any of the Company Subsidiaries to, do any of the following: (i) acquire, sell, lease, transfer or dispose of any assets, rights or securities that are material to the Company and the Company Subsidiaries or terminate, cancel, materially modify or enter into any material commitment, transaction, line of business or other agreement, in each case outside of the ordinary course of business consistent with past practice or, in the case of acquisitions of oil and gas properties or interests therein, in excess of $3,000,000 in the aggregate; (ii) acquire by merging or consolidating with or by purchasing a substantial 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; (iii) amend or propose to preserve amend its articles of incorporation or bylaws or, in the current relationships case of the Company Subsidiaries, their respective constituent documents; (iv) 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; (v) 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, other than in connection with the relinquishment of shares by employees and directors of the Company in payment of withholding tax upon the vesting of restricted stock; (vi) split, combine or reclassify any outstanding shares of its capital stock; (vii) except for the Company Common Stock issuable upon exercise of options outstanding on the date hereof (or granted after the date hereof as permitted by this Agreement) and the Subsidiaries with customersvesting of restricted stock awards granted prior to the execution of this Agreement, suppliersissue, and other persons with which sell, dispose of or authorize, propose or agree to the issuance, sale or disposition by the Company or any Subsidiary has significant business relations; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach Subsidiaries of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) amend or otherwise change its Certificate of Incorporation or By-Laws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any Subsidiaryof, or any options, warrants, convertible securities warrants or other rights of any kind to acquire any shares of, or units (as applicable) of such any securities convertible into or exchangeable for any shares of, its capital stock or other type of equity interestsany class, or any other ownership interest securities in respect of, in lieu of, or in substitution for any class of its capital stock outstanding on the date hereof; (including, without limitation, viii) modify the terms of any phantom interest), of existing indebtedness for borrowed money or security issued by the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any direct or indirect wholly owned Subsidiary to the Company or any other Subsidiary; (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant of the Company or any Subsidiary; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (iiix) incur any indebtedness for borrowed money or issue any debt securities or (other than pursuant to the Company’s existing line of credit in an aggregate amount not to exceed $10,000,000); (x) assume, guarantee or endorseguarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any personother Person, or make any loans or advances advances, except (including loans A) to or advances for the benefit of the Company Subsidiaries or (B) for those not in excess of $500,000 in the aggregate; (xi) create or assume any material Lien on any material asset; (xii) authorize, recommend or propose any material change in its capitalization; (xiii) (A) take any action with respect to the grant of or increase in any severance or termination pay to any current or former director, officer, employee, agent executive officer or consultant employee of the Company or any Company Subsidiary, (B) execute any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any such director, executive officer or employee of the Company or any Company Subsidiary, (C) increase the benefits payable under any existing severance or termination pay policies or employment agreements, (D) increase the compensation, bonus or other benefits of current or former directors, executive officers or employees of the Company or any Company Subsidiary, (E) adopt or establish any new employee benefit plan or amend in any material respect any existing employee benefit plan, (F) provide any material benefit to a current or former director, executive officer or employee of the Company or any Company Subsidiary not required by any existing agreement or employee benefit plan, other than for clauses (A), except for advances (B) and (D) above, in the case of business expenses employees who are not directors and executive officers, in the ordinary course of business and consistent with past practicebusiness, or (G) take any action that would result in its incurring any obligation for any payments or benefits described in subsections (i), (ii) or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course of business and consistent with past practice; (iii) enter into any of Section 3.10(j) (without regard to whether the transactions contemplated by this Agreement are consummated) except to the extent required in a written plan, contract or agreement in existence as of the date of this Agreement; (xiv) other than in the ordinary course of business and consistent with past practice; , execute or amend (ivother than as required by existing employee benefit plans or employment agreements or by applicable law) authorize any capital expenditure in any manner not reflected in material respect any employment, consulting, severance or indemnification agreement between the capital budget Company or any of the Company attached as Section 6.01(e)(iv) Subsidiaries and any of their respective directors, officers, agents, consultants or employees, or any collective bargaining agreement or other obligation to any labor organization or employee incurred or entered into by the Company or any of the Disclosure LetterCompany Subsidiaries (other than as required by existing employee benefit plans or employment agreements or by applicable law); (xv) make any changes in its reporting for taxes or accounting methods other than as required by GAAP or applicable law; (v) renew make or rescind any Tax election; make any change to its method or reporting income, deductions, or other Tax items for Tax purposes; settle or compromise any Tax liability or enter into any noncompete, exclusivity or similar agreement that transaction with an affiliate outside the ordinary course of business if such transaction would restrict or limit, give rise to a material tax liability; (xvi) other than the lawsuit identified in any material respect, the operations Section 5.1(b)(xvi) of the Company Disclosure Letter, settle, compromise or its Subsidiaries orotherwise resolve any litigation or other legal proceedings involving a payment of more than $1,000,000 in any one case by or to the Company or any of the Company Subsidiaries; (xvii) other than in the ordinary course of business, after pay or discharge any claims, Liens or liabilities involving more than $500,000 individually or $1,000,000 in the Acceptance Timeaggregate, Parent which are not reserved for or its subsidiariesreflected on the balance sheets included in the Company Financial Statements; (xviii) write off any accounts or notes receivable in excess of $100,000; (xix) make or commit to make capital expenditures in excess of the aggregate budgeted amount set forth in the Company’s fiscal 2010 capital expenditure plan described in Section 5.1(b)(xix) of the Company Disclosure Letter previously provided to Parent, except as may be required to (A) continue operations on the drilling, completion or plugging of any well or any well operations for which the Company has consented to participate and is required to continue to participate pursuant to applicable agreements or (B) conduct emergency operations on any well pipeline or other facility; (xx) make or assume any Xxxxxx covering in excess of 3,000 additional barrels of oil for calendar 2010, or in excess of 6,000 barrels of oil for calendar 2011; (vixxi) enter into or amend any contract, agreement, commitment or arrangement with respect new contracts to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring sell Hydrocarbons other than in the ordinary course of business at market pricing, but in no event any having a duration longer than three months; (xxii) fail to timely meet its royalty payment obligations in connection with its oil and consistent with past practicegas leases to the extent such failure has or would reasonably be expected to have a Company Material Adverse Effect; (xxiii) enter into any agreement, arrangement or increase the compensation payable commitment that limits or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of otherwise restricts the Company or any Company Subsidiary, or that would reasonably be expected to, after the Effective Time, limit or restrict the Parent or any Parent Subsidiary who are not directors or officers any of their respective affiliates or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic area material to the business or operations of Parent or any Parent Subsidiary; (xxiv) terminate, amend, modify or waive any provision of any confidentiality or standstill agreement to which it is a party or fail to enforce, to the fullest extent permitted by law, the provisions of such agreement, including by obtaining injunctions to prevent any breaches of such agreement and to enforce specifically the terms and provisions thereof; (xxv) except as expressly permitted by Section 6.10, knowingly take, or agree to commit to take, any action that would or would reasonably be expected to result in the failure of a condition set forth in Section 7.2(a) or (b) at, or as of any time prior to, the Effective Time, or that would materially impair the ability of the Company, Parent, Merger Sub or grant any severance the holders of shares of Company Common Stock to consummate the Merger in accordance with the terms hereof or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for materially delay such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect theretoconsummation; (gxxvi) knowingly take any action, other than reasonable and usual actions in action that would or could reasonably be expected to disqualify the ordinary course Merger as a reorganization within the meaning of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its termsSection 368(a) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Company; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganizationCode; or (nxxvii) announce an intention, enter into any formal take or informal agreement agree in writing or otherwise make a commitment, to do take any of the foregoingactions precluded by Sections 5.1(a) or (b).

Conduct of Business by the Company Pending the Merger. The (a) Except as expressly contemplated or permitted by this Agreement or as set forth on Section 7.1 of the Company agrees Disclosure Letter, from the date of this Agreement until the earlier to occur of the Closing and the termination of this Agreement pursuant to Article IX, unless Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld, delayed or conditioned), or except as required by Applicable Law, the Company shall, and shall cause its Subsidiaries to, conduct their business in the Ordinary Course of Business in all material respects and, to the extent not inconsistent therewith, use commercially reasonable efforts to (i) preserve substantially intact their current business organizations, (ii) preserve in all material respects their relationships with customers, suppliers, licensors, licensees, distributors and other third parties that are material to the operation of the business and (iii) keep available their present officers and key employees; provided, that, in the case of the immediately preceding clauses (i), (ii) and (iii), commercially reasonable efforts shall not be deemed to require the Company or any of its Subsidiaries to exert any efforts with respect to a particular matter that are greater than the level of efforts exerted by the Company or such Subsidiary with respect to such matter prior to the date of this Agreement; provided, further, that (i) no action or inaction by the Company or any of its Subsidiaries with respect to any of the matters specifically addressed by another provision of this Section 7.1 shall be deemed to be a breach of the portion of this sentence preceding this proviso unless such action or inaction would constitute a breach of such other provision and (ii) the failure of Parent to take any action prohibited by Section 7.2(b) shall not be deemed to be a breach of this Section 7.1(a)(i), (ii) or (iii). (b) From the date of this Agreement until the earlier to occur of the Closing and the termination of this Agreement pursuant to Article IX, except (1) as listed in Section 7.1(b) of the Company Disclosure Letter, (2) as required by Applicable Law or (3) as expressly contemplated or permitted by this Agreement, the Company shall not, and shall cause each of its Subsidiaries not to, without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned): (i) amend or modify the Organizational Documents of the Company or any of its Subsidiaries; (ii) directly or indirectly (A) split, combine or reclassify its capital stock or any equity securities or obligations convertible into or exchangeable for, or any other right to acquire, any shares of its capital stock, (B) make, declare or pay any dividend or distribution (other than dividends and distributions made, declared or paid to the Company or a Subsidiary of the Company by another Subsidiary of the Company) on, or redeem, purchase or otherwise acquire, any shares of its capital stock or any equity securities or obligations convertible into or exchangeable for, or any other right to acquire, any shares of its capital stock or such securities (other than (1) pursuant to Contracts set forth on Section 7.1(b)(ii) of the Company Disclosure Letter and (2) the redemption, purchase or acquisition of any such shares, securities, obligations or rights of any wholly owned Subsidiary of the Company by the Company or another wholly owned Subsidiary of the Company), (C) grant any Person any right or option to acquire any shares of its capital stock or any other equity-based compensation award based on shares of its capital stock (other than (1) pursuant to any Benefit Plan in effect on the date of this Agreement, (2) to the Company or a wholly owned Subsidiary of the Company by another wholly owned Subsidiary of the Company and (3) to employees and independent sales personnel or distributors in connection with new hires, promotions or similar circumstances in the Ordinary Course of Business), (D) issue, deliver, sell, grant, pledge, dispose of or encumber (other than Permitted Encumbrances) any shares of its capital stock or any equity securities or obligations convertible into or exchangeable or exercisable for, or any other right to acquire, any shares of its capital stock or such equity securities (other than (1) pursuant to any Benefit Plan in effect on the date of this Agreement and (2) to the Company or any wholly owned Subsidiary of the Company by another wholly owned Subsidiary of the Company) and except for the issuance or delivery of shares of Company Common Stock pursuant to the exercise or settlement of the Company Options and the Company Stock-Based Awards that are outstanding as of the date of this Agreement and in accordance with the existing terms thereof or granted pursuant to exception (3) to clause (C) of this Section 7.1(b)(ii)) or (E) enter into any Contract with respect to the sale, voting, registration or repurchase of its capital stock; (iii) merge with, enter into a consolidation with or acquire a substantial portion of the stock, assets or business of any Person or any division or line of business thereof, other than (A) in the case of any asset acquisition, the acquisition of inventory, supplies, equipment and raw materials in the Ordinary Course of Business, (B) capital expenditures, which shall be subject to the provisions of clause (xiv) below, (C) transactions for consideration (including the assumption of debt) not exceeding Twenty Five Million Dollars ($25,000,000) in the aggregate, (D) transactions between or among the Company and any wholly owned Subsidiary of the Company or between or among wholly owned Subsidiaries of the Company and (E) any transactions required to be consummated by the Company or any Subsidiary of the Company pursuant to an existing Contract; (iv) incur any material Indebtedness (other than accruing interest in connection with existing Indebtedness), except for (A) borrowings under the Company’s or any of its Subsidiary’s existing credit facilities as in effect on the date of this Agreement, (B) the incurrence of any Funded Debt that will be repaid at or prior to the Closing, (C) commodity swap agreements, commodity cap agreements, interest rate cap agreements, interest rate swap agreements, foreign currency exchange agreements and other similar agreements entered into in the Ordinary Course of Business, (D) inter-company Indebtedness, (E) Indebtedness incurred to replace, renew, extend, refinance or refund any existing Indebtedness on terms no less favorable to the Company and its Subsidiaries than the terms of such existing Indebtedness and (F) Indebtedness not to exceed Fifty Million Dollars ($50,000,000) in aggregate principal amount outstanding at any time, or make any loans, advances or capital contributions to, or investments in, any Person other than the Company or any of its Subsidiaries and other than (1) reimbursements or advancements of employee or director expenses in the Ordinary Course of Business, (2) transactions required to be entered into by the Company or any of its Subsidiaries pursuant to existing Contracts and (3) loans, advances, capital contributions and investments not to exceed Fifty Million Dollars ($50,000,000) in the aggregate; (v) make any material change in accounting or financial reporting methods, principles or practices used by the Company or any of its Subsidiaries, except to the extent required by GAAP, any other applicable generally accepted accounting principles or Applicable Law; (vi) other than as contemplated by Section 7.8(d) (A) adopt any plan that would be a Benefit Plan if it had been in existence on the date of this Agreement, (B) materially amend any Benefit Plan or (C) other than in the Ordinary Course of Business, pay any bonus, remuneration or noncash benefits, except pursuant to any Benefit Plan or Collective Bargaining Agreement; (vii) other than in the Ordinary Course of Business, grant or pay any severance or termination pay or benefits (or increase any severance or termination benefit obligations) except (A) grants of severance pay in accordance with the terms of the Benefit Plans listed on Section 5.13(a) of the Company Disclosure Letter to employees hired between the date of this Agreement and the Appointment Time Closing Date, or (B) any payments required under the terms of any Benefit Plans listed on Section 5.13(a) of the Company Disclosure Letter, any Collective Bargaining Agreement or Applicable Law; (viii) increase the compensation or benefits of any directors, officers, employees, or in respect of consideration for personal services rendered, independent contractors, independent sales personnel or distributors, except as defined required by any Collective Bargaining Agreement, Applicable Law or in Section 7.03(c))the Ordinary Course of Business; (ix) enter into, unless Parent shall otherwise agree adopt, amend or terminate any Collective Bargaining Agreement, except as required by Applicable Law; (x) (A) make or change any material Tax election, (B) change any material annual Tax accounting period or method of accounting, (C) file any amended Tax Return that is material, (D) enter into any material closing agreement as to Taxes, (E) settle any material Tax claim or assessment or (F) surrender any right to claim a Tax refund to the extent such refund is reflected as an asset on the Company Financial Statements as of the Balance Sheet Date, in writingeach case, that would materially increase the businesses Company’s or any of its Subsidiaries’ liability for Taxes in a taxable period or portion thereof beginning after the Closing Date and that is not in the Ordinary Course of Business or required by Applicable Law; (xi) sell, lease, pledge or dispose of to any Person, or permit the imposition of any Encumbrance (other than Permitted Encumbrances) on, any of its material properties, assets or lines of business, other than (A) the sale, lease, pledge or disposition or encumbrance of inventory, raw materials, equipment and supplies in the Ordinary Course of Business, (B) transactions for consideration not exceeding Fifty Million Dollars ($50,000,000) in the aggregate, (C) transactions between or among the Company and wholly owned Subsidiaries of the Company or between or among wholly owned Subsidiaries of the Company and the Subsidiaries shall, except as otherwise expressly contemplated (D) any transactions required to be consummated by this Agreement, be conducted only in, and the Company and the Subsidiaries shall not take any action except in the ordinary course of business and in a manner consistent with past practice; and the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers, and other persons with which the Company or any Subsidiary has significant business relations; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) amend or otherwise change its Certificate of Incorporation or By-Laws or equivalent organizational documentsan existing Contract; (b) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any direct or indirect wholly owned Subsidiary to the Company or any other Subsidiary; (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant of the Company or any Subsidiary; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) 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, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and consistent with past practice), or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Company; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (mxii) adopt a plan of complete or partial liquidationliquidation or dissolution or otherwise dissolve, dissolution, recapitalization wind-up or effect any restructuring or other reorganization; (xiii) other than in the Ordinary Course of Business, (A) modify, amend, fail to renew or terminate any Material Contract or Real Property Lease set forth in Section 7.1(b)(xiii) of the Company Disclosure Letter (other than the lapse or expiration of any Material Contract or such Real Property Lease in accordance with the terms thereof) or (B) enter into any Contract that would have been a Material Contract if it had been entered into prior to the date of this Agreement or enter into any Real Property Lease (other than as a result of the lapse or expiration of a Real Property Lease); (xiv) make any capital expenditures, capital additions or capital improvements, other than such expenditures, additions or improvements made in the Ordinary Course of Business or not in excess of Fifty Million Dollars ($50,000,000) in the aggregate; (xv) materially delay the payment of any account payable or Taxes beyond the date when such account payable or Taxes would have been paid in the Ordinary Course of Business; (xvi) materially accelerate the collection of any account or note receivable in advance of the date when such account or note would have been collected in the Ordinary Course of Business; (xvii) settle, compromise, waive or terminate (A) any Proceeding, other than (1) in the Ordinary Course of Business or (2) in the case where the sole obligation of the Company and its Subsidiaries is the payment of money in an amount not in excess of the amount set forth on Section 7.1(b)(xvii)(A) of the Company Disclosure Letter or (B) the matter set forth on Section 7.1(b)(xvii)(B) of the Company Disclosure Letter; (xviii) enter into any new line of business that is material to the Company and its Subsidiaries other than in the Ordinary Course of Business; (xix) (A) modify or amend any Affiliate Agreement, (B) enter into any new Affiliate Agreement, or (C) enter into any other business relationship with any Affiliate (other than the Company or any of its Subsidiaries or in connection with an Affiliate Agreement existing as of the date of this Agreement in accordance with its terms); (xx) authorize, apply for or cause to be approved the listing of shares of Company Common Stock on any stock exchange; (xxi) cancel, terminate, fail to keep in place or reduce the amount of any insurance coverage provided by existing insurance policies without obtaining substantially equivalent (in the aggregate) substitute insurance coverage, other than in the Ordinary Course of Business or if the Company, in its reasonable judgment, determines that such cancellation, termination or failure to keep in place would not result in the Company and its Subsidiaries having inadequate coverage, including after giving effect to any insured self-retention or co-insurance feature; (xxii) take any action that is reasonably likely to prevent or materially delay or materially impair the consummation of the Merger or any of the other transactions contemplated by this Agreement; or (nxxiii) announce an intention, enter into any formal agree or informal agreement or otherwise make a commitment, commit to do take any of the foregoingforegoing actions. Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of the Company or any of its Subsidiaries prior to the Closing. Prior to the Closing, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of their respective operations.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the Appointment earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1 (Termination), except as defined (a) may be required by Law, (b) may be consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed (except with respect to subsections (c) (with respect to the Company Common Stock only), (d) or (l) of this Section 5.1), (c) may be expressly required, contemplated or permitted pursuant to this Agreement or (d) set forth in Section 7.03(c))5.1 of the Company Disclosure Letter, unless Parent (x) the Company shall otherwise agree in writing, (i) use its reasonable best efforts to conduct the businesses business of the Company and the its Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, be conducted only in, and the Company and the Subsidiaries shall not take any action except in the ordinary course of business and in a manner consistent with past practice; practice and in compliance in all material respects with applicable Laws, including the Company shall timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act, the Exchange Act or the Xxxxxxxx-Xxxxx Act, and (ii) use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current in all material respects its present relationships of the Company and the Subsidiaries with customers, suppliers, key suppliers and other persons Persons with which the Company or any Subsidiary it has significant material business relations; relations (provided, however, that no action by the Company or any of its Subsidiaries, as applicable, with respect to matters specifically addressed by any provision of the immediately succeeding clause (1y) shall be deemed a breach of the foregoing unless such action would constitute a breach of such provision of the immediately succeeding clause (y)), and (iii) use its reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts to, continue to maintain, in all material respects, its material assets, properties, rights and operations in accordance with present practice; and (y) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracynot, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, not permit any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parentits Subsidiaries to: (a) amend or otherwise change the Company Charter or the Company Bylaws (other than immaterial or ministerial changes) or amend or otherwise change in any material respect any organizational documents of any of its Certificate of Incorporation or By-Laws or equivalent organizational documentsSubsidiaries; (b) split, combine, reclassify, redeem, repurchase or otherwise acquire or amend the terms of any capital stock or other equity interests or rights (other than (i) repurchases of shares of Company Common Stock and the related rights in connection with the exercise, vesting, settlement or forfeiture of Company Equity Awards, in each case, pursuant to their terms as in effect on the date of this Agreement (or subsequent Company Equity Awards or terms in effect after the date of this Agreement in compliance with Section 5.1(e)), or (ii) for any such transaction by a direct or indirect wholly owned Subsidiary of the Company that remains a wholly owned Subsidiary after consummation of such transaction); (c) except for transactions among the Company and its direct or indirect wholly owned Subsidiaries or among the Company’s direct or indirect wholly owned Subsidiaries, issue, sell, pledge, dispose of, encumber or grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of its or units (if applicable) of any class of its Subsidiaries’ capital stock or other type of equity interests of the Company or any Subsidiaryinterests, phantom equity interests, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of its or units (as applicable) of such its Subsidiaries’ capital stock or other type of equity interests; provided, or any other ownership interest (includinghowever, without limitation, any phantom interest), of that the Company may issue shares of Company Common Stock upon the exercise, vesting or any Subsidiary settlement of Company Equity Awards that (except for the issuance i) are outstanding as of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any direct or indirect wholly owned Subsidiary to the Company or any other Subsidiary; (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant of the Company or any Subsidiary; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) 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, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and consistent with past practice), or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, may be granted after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement date hereof in compliance with respect to any matter set forth in this Section 6.01(e5.1(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Company; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization; or (n) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the Appointment earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (a) as defined may be required by Law, (b) as may be agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (c) as may be expressly contemplated or permitted pursuant to this Agreement or (d) as set forth in Section 7.03(c))6.1 of the Company Disclosure Letter, unless Parent (x) the Company shall, and shall otherwise agree in writingcause its Subsidiaries to, conduct the businesses business of the Company and the Subsidiaries shallits Subsidiaries, except as otherwise expressly contemplated by this Agreementapplicable, be conducted only in, and the Company and the Subsidiaries shall not take any action except in the ordinary course of business and in a manner consistent with past practice; and the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers, and other persons with which the Company or any Subsidiary has significant business relations; provided, however, practice in all material respects (provided that (1) no action by the Company shall not be required or its Subsidiaries with respect to take any action pursuant to of the matters specifically addressed by any other provisions of this Section 6.01 that 6.1 will be deemed a breach of this clause (x) unless such action would cause any representation constitute a breach of one or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing more such inaccuracy, other provisions and (2) no failure by acquisitions and dispositions of investments in Portfolio Companies in accordance with the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach ofCompany’s investment objectives, or inaccuracy inpolicies, any and restrictions in effect as of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement will not be deemed to be a breach of this clause (x)); and (y) the Appointment TimeCompany shall not, directly or indirectly, do, or propose to do, and shall not permit any of the following without the prior written consent of Parentits Subsidiaries to: (a) amend or otherwise change its Certificate change, in any material respect, the Company’s Charter or the Second Amended and Restated Bylaws (as amended) of Incorporation the Company (or By-Laws or such equivalent organizational documentsor governing documents of any of its Subsidiaries); (b) except for transactions solely among the Company and its wholly-owned Subsidiaries, split, combine, reclassify, redeem, repurchase or otherwise acquire or amend the terms of any capital stock or other equity interests or rights; (c) except for transactions solely among the Company and its Subsidiaries, issue, sell, pledge, dispose ofdispose, encumber or grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any (i) any shares of its or units the Company’s or its Subsidiaries’ capital stock, (if applicableii) of any class of capital stock or other type of equity interests of the Company or any Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of the Company’s or units (as applicable) of such capital its Subsidiaries’ stock or other type of (iii) appreciation rights, phantom equity interestsor similar rights with respect to, or any other ownership interest (includingvalued in whole or in part in reference to, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practiceits Subsidiaries; (cd) (i) declare, set aside, authorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to the Company’s or any of its Subsidiaries’ capital stockstock or other equity interests, except for other than (a) dividends and distributions paid by any direct or indirect wholly wholly-owned Subsidiary of the Company to the Company or any other Subsidiary; of its wholly-owned Subsidiaries, (b) regular quarterly cash distributions payable by the Company on a quarterly basis consistent with past practices and the Company’s investment objectives and policies as publicly disclosed, (c) the authorization and payment of any dividend or distribution necessary for the Company to maintain its qualification as a RIC, as reasonably determined by the Company, or (d) reclassifya Tax Dividend; or (ii) purchase, combine, split, subdivide or redeem, or purchase redeem or otherwise acquire, directly acquire shares of capital stock or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant other equity interests of the Company or its Subsidiaries (other than any Subsidiarywholly-owned Subsidiaries) or any options, warrants, or rights to acquire any such shares or other equity interests; (e) (i) directly or indirectly acquire (including, without limitation, including by merger, consolidation, consolidation or acquisition of stock or assets or assets), except in respect of any other merger, consolidation, business combination) combination among the Company and its wholly-owned Subsidiaries, any corporation, partnership, limited liability company, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property thereof, except with respect to acquisitions with collective purchase prices not exceeding $2,000,000 in the Company aggregate and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) except for acquisitions of inventory Portfolio Company investments in accordance with the Company’s investment objectives, policies and supplies that are consistent with past practice); restrictions; (iif) incur any long-term indebtedness for borrowed money in an amount in excess of $2,000,000 or issue guarantee any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations such indebtedness of any person, or make any loans or advances Person (including loans or advances to any director, officer, employee, agent or consultant other than a wholly-owned Subsidiary) in an amount in excess of the Company or any Subsidiary)$2,000,000, except for advances indebtedness or guarantees (i) incurred to replace, renew, extend, refinance or refund any existing indebtedness, (ii) for borrowed money incurred pursuant to agreements in effect prior to the execution of business expenses this Agreement, (iii) incurred under letters of credit in the ordinary course of business and consistent with past practice)or (iv) as otherwise required in the ordinary course of business; (g) amend, enter into or grant terminate any security interest in any of its assets Company Material Contract other than (including Intellectual Propertyi) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the all material respects and (ii) which would not have a Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or proceduresMaterial Adverse Effect; (h) make any material tax election change to its methods of accounting, except as required by GAAP (or settle any interpretation thereof), Regulation S-X of the Exchange Act or compromise a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any material United States federal, state, local similar organization) or non-United States income tax liabilityas otherwise required by Applicable Law; (i) pay(i) make or change any material Tax election, discharge or satisfy (ii) change any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), material method of Tax accounting other than the payment, discharge or satisfaction, in the ordinary course of business and consistent business, (iii) amend any material Tax Return, (iv) settle or compromise any Tax audit or other proceeding relating to a material amount of Taxes or (v) agree to any extension or waiver of the statute of limitations with past practice, respect to a material amount of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practiceTax; (j) amendenter into a new line of business outside of the Company’s investment objective as described in the Company SEC Documents (provided, modify or consent to that the termination (which for the avoidance of doubt foregoing shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse apply in any material respect way to the any Portfolio Company); (k) commence directly or settle indirectly sell, lease, license or otherwise subject to any material ActionLien or otherwise dispose in whole or in part of any of its properties, assets or rights or any interest therein, except for dispositions of Portfolio Company investments in accordance with the Company’s investment objectives, policies and restrictions; (l) permit any material item acquire new investments categorized as Level 3 investments in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 820 “Fair Value Measurements and Disclosures” with a value, individually or in the aggregate, equal to 5% or more of Company Registered Intellectual Property to lapse or to be abandonedthe Company’s net asset value as of June 30, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property;2019; or (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization; or (n) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the Appointment Time (Effective Time, except as defined set forth in Section 7.03(c))5.01 of the Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless Parent Acquiror shall otherwise agree in writing, (a) the businesses business of the Company and the Company Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in in, the ordinary course of business and in a manner substantially consistent with past practice; and , (b) the Company shall use its all reasonable best efforts to preserve substantially intact the its business organization of the Company and the Subsidiariesorganization, to keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with customers, suppliers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations; provided, however, that relations and (1c) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracynot, and (2) no failure by the shall not permit any Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parentto: (ai) amend or otherwise change its Certificate articles of Incorporation incorporation or By-Laws bylaws or equivalent comparable organizational documents; (bii) issue, sell, pledge, dispose of, grant or grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (iA) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any SubsidiaryCompany Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interestsstock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum up to 8,300 shares of 6,628,083 Shares issuable Company Common Stock pursuant to the Company Stock Options Plans, the issuance of rights pursuant to the Rights Agreement and the issuance of shares of capital stock pursuant to currently outstanding Company Stock Awards outstanding Options, Company Warrants and rights pursuant to the Rights Agreement, in each case in accordance with the terms thereof as in effect on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hireshereof) or any Company Subsidiary, or (iiB) any assets (including Intellectual Property) of the Company Company’s or any Subsidiary, Company Subsidiaries’ assets except for sales in the ordinary course of business and in a manner consistent with past practice; (ciii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any direct or indirect wholly owned Subsidiary to the Company or any other Subsidiary; (div) reclassify, combine, split, subdivide divide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant of the Company or any Subsidiary; (ev) (iA) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or assets) any other business combination) interest in any corporation, partnership, other business organization or any division thereof or acquire any material amount assets, other than the acquisition of assets (other than (A) any license in the ordinary course of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (iiB) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary)advances, except for advances of business expenses indebtedness incurred in the ordinary course of business and consistent with past practice)practice (1) in a principal amount not, or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course aggregate, in excess of business $100,000 and consistent with past practicerepayable without premium or penalty or (2) to fund the purchase of inventory and other working capital items; (iiiC) enter into any contract or agreement material to the business, results of operations or financial condition of the Company other than in the ordinary course of business and business, consistent with past practice; (ivD) authorize any individual capital expenditure in any manner not reflected excess of $100,000, or capital expenditures in the capital budget aggregate in excess of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, $1,000,000 in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, month; or (viE) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(esubsection (v); (fvi) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable to any director, officer or the benefits provided to its directorsother employee, officers or employeesgrant any bonus, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Companyto, or grant any severance or termination pay to, or enter into any employment or severance agreement with, with any director, officer or other employee of the Company or of any SubsidiaryCompany Subsidiary or enter into or amend any collective bargaining agreement, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance compensation or other plan, agreement, trust, fund, policy trust or arrangement fund for the benefit of any director, officer or employeeclass of employees, except for such amendments as may be necessary contemplated by the last sentence of Section 2.02(a); (vii) settle or desirable compromise any pending or threatened litigation which is material or which relates to cause the transactions contemplated hereby, provided that nothing in this Section 5.01(c)(vii) will prohibit the Company from settling or compromising any such planlitigation if, agreementafter consultation with counsel, trust, fund, policy or arrangement the Company believes that such action is necessary to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto;its fiduciary duties; or (gviii) engage in any practice, take any action, other than reasonable and usual actions or enter into any transaction of the sort described in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures;Section 3.08 above; or (hix) otherwise take any action or willfully omit to take any commercially reasonable action that could reasonably be expected to make any material tax election representation or settle warranty in Article III above untrue or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse incorrect in any material respect to the Company; (k) commence or settle at any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandonedtime, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization; or (n) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any including as of the foregoingEffective Time, as if made as of such time.

Conduct of Business by the Company Pending the Merger. (a) The Company agrees that, between the date of this Agreement and the Appointment earlier of the Effective Time and the termination of this Agreement in accordance with its terms (the “Pre-Closing Period”), except (i) as defined required by applicable Law or with the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), (ii) solely in respect of this Section 5.01(a) and the applicable clauses of Section 5.01(b) set forth in Section 7.03(c)5.01(c), unless Parent for any actions or the failure to take any action in response to COVID-19 or COVID-19 Measures in accordance with Section 5.01(c), or (iii) as expressly contemplated by any other provision of this Agreement or as set forth in Section 5.01 of the Company Disclosure Schedule, the Company shall, and shall otherwise agree in writingcause the Company Subsidiaries to, use reasonable best efforts to conduct the businesses of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, be conducted Group only in, and the Company and the Subsidiaries shall not take any action except in the ordinary course of business and in a manner and, to the extent consistent with past practice; and the Company shall therewith, use its reasonable best efforts to to: (A) preserve substantially intact the business organization organization, material assets, insurance, properties and business relations of the Company and the SubsidiariesGroup, to (B) keep available the services of the current officersCompany’s executive officers on commercially reasonable terms, employees (C) maintain in effect all material business licenses, permits, consents, franchises and consultants approvals and authorizations necessary for the conduct of the business of the Company Group as conducted on the date hereof, and (D) maintain the Subsidiaries and to preserve the current material relationships of the Company Group with Governmental Authorities that have jurisdiction over its business and the Subsidiaries with customers, suppliers, and other persons with which the Company or any Subsidiary has significant business relations; provided, however, that operations. (1b) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except Except as expressly contemplated by any other provision of this Agreement and Agreement, as set forth in Section 6.01 5.01 of the Company Disclosure LetterSchedule or as required by applicable Law, neither the Company nor any Company Subsidiary shall, between during the date of this Agreement and the Appointment TimePre-Closing Period, directly or indirectly, do, or propose to do, do any of the following without the prior written consent of Parent:Parent (such consent not to be unreasonably withheld, conditioned or delayed): (ai) amend or otherwise change its Certificate certificate of Incorporation incorporation, by-laws or By-Laws or equivalent other similar organizational documentsdocuments (including the Company Charter and the Company Bylaws); (bii) issue, grant, sell, pledge, dispose of, grant or encumber, encumber or authorize the such issuance, grant, sale, pledge, disposition, grant disposition or encumbrance of, (i) any shares or units (if applicable) of any class of share capital stock or other type of equity interests of the Company or any Company Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, any phantom interest), Equity Interests of the Company or any Company Subsidiary (except for (A) the issuance of a maximum of 6,628,083 Shares issuable pursuant to Convertible Debentures, Company Stock Options Warrants, Company Options, Company RSUs or Company PSUs that are outstanding or set forth on the Company Disclosure Schedule on the date of this Agreement pursuant to the terms of the applicable Convertible Debentures, Company Warrants, Company Options, Company RSUs and Company Stock Awards PSUs as in effect immediately prior to the date of this Agreement, (B) sales of shares to satisfy Tax withholding obligations related to vesting of Company RSUs or Company PSUs that are outstanding on the date hereof and of this Agreement pursuant to the grant terms of a maximum of 71,310 the applicable Company Stock Awards RSUs and Company Stock Options PSUs, and (C) with respect to new hires) or (ii) Equity Interests of any assets (including Intellectual Property) Company Subsidiary, in connection with transactions solely among members of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practiceGroup); (ciii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stockshares, property or otherwise, with respect to any of its share capital stockor other Equity Interests, except as required by the express terms of the Convertible Debentures or for dividends or other distributions by any direct or indirect wholly owned Company Subsidiary to the Company or any other direct or indirect wholly owned Company Subsidiary; (div) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its interests, share capital stockor other Equity Interests, except for other than (A) from holders of Company Options in full or partial payment of the repurchase or reacquisition exercise price of securities any vested Company Options that are outstanding on the date of this Agreement pursuant to the terms of the applicable Company Options and (B) in connection with the termination withholding of service Taxes payable by any holder of any employeeCompany Options, director Company RSUs or consultant Company PSUs that are outstanding on the date of this Agreement upon the exercise, settlement or vesting thereof, in each case, to the extent required or permitted under the terms of such Company Options, Company RSUs or Company PSUs or any Subsidiaryapplicable Plan; (ev) other than in the ordinary course of business, sell, transfer, lease, sublease, license, mortgage, pledge, encumber, allow to lapse, assign, abandon, disclaim, dedicate to the public, incur any Lien on (iother than a Permitted Lien) or otherwise dispose of, or authorize any of the foregoing with respect to, any of its material properties, assets, licenses, operations, rights, businesses or interests therein (but not including Intellectual Property, which is the subject of Section 5.01(b)(xvii)) except (A) pursuant to Contracts or Company Leases in force on the date of this Agreement, (B) such dispositions of supplies, inventory, merchandise, products or other assets in the ordinary course of business and such dispositions of obsolete, surplus or worn out assets or assets that are no longer used or useful in the conduct of the business of the Company’s, or the applicable Company Subsidiary’s business as conducted as of the date of this Agreement or (C) such dispositions or transfers among the Company and the Company Subsidiaries; (vi) acquire (includingincluding by amalgamation, without limitation, by merger, consolidation, consolidation or acquisition of stock Equity Interests or assets or any other business combination) (A) any company, corporation, partnership, other business organization (or any division thereof thereof) or acquire (B) any material amount of assets real property; (other than vii) (A) any license of Intellectual Property except for borrowings under the Existing Loan Agreement as in effect immediately prior to the Company date of this Agreement in the ordinary course of business and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) practice or to the extent necessary to facilitate the Transactions, repurchase, prepay or incur any indebtedness for borrowed money or issue any debt securities securities, or issue or sell options, warrants, calls or other rights to acquire any of its debt securities, (B) make any loans, advances or capital contributions to, or investments in, any other person (other than a Company Subsidiary) or (C) assume, guarantee or endorseguarantee, endorse or otherwise become liable or responsible for, for the indebtedness or other obligations of any person, or make any loans or advances another person (including loans or advances to any director, officer, employee, agent or consultant of other than a guaranty by the Company or on behalf of any Company Subsidiary); (viii) enter into, except for advances amend in any material respect, waive any material right under, renew or terminate any Material Contract (other than any non-renewal of business expenses such Contract in the ordinary course of business and consistent with past practice), or grant any security interest in any of its assets (including Intellectual Property) except renewal in the ordinary course of business and consistent with past practice; on the existing commercial terms of such Contract (iii) enter into any contract or agreement other than commercially reasonable increases in pricing terms)) or any other Contract that would be deemed a Material Contract if it had been entered into prior to the date of this Agreement, other than, subject to the other clauses of this Section 5.01(b) in the ordinary course of business and consistent with past practice; (ivexcept that no Material Contract pursuant to Section 3.15(a)(vi) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as or Section 6.01(e)(iv3.15(a)(vii) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(eshall be entered into); (fix) hire additional employeesauthorize, except hiring or make any commitment with respect to, capital expenditures that in the ordinary course aggregate would exceed the annual capital expenditures budget (a copy of business which has been set forth in Section 5.01(b)(ix) of the Company Disclosure Schedule) of the Company and consistent with past practicethe Company Subsidiaries, or taken as a whole; (x) except as otherwise required under any Plan, (A) increase the compensation payable or to become payable or the benefits provided to its directorsService Providers, officers (B) grant or employeesamend any retention, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment bonus, incentive, equity, change of control or severance agreement with, any directorService Provider, officer (C) enter into any employment agreement with any Service Provider (or any individual who would be a Service Provider if employed or engaged on the date hereof) other than in the ordinary course of business, with a Service Provider with a title below the level of vice president and on the same form of employment agreement that was provided to Parent prior to the date hereof, which for the avoidance of doubt contains no provisions regarding a change in control; (D) pay any annual bonus or annual incentive compensation in excess of the amount earned based on actual performance in accordance with the applicable Plan, (E) establish, adopt, enter into, terminate or amend any Plan, or establish, adopt or enter into any plan, agreement, program, policy, trust, fund or other employee arrangement that would be a Plan if it were in existence as of the Company or date of this Agreement, for the benefit of any SubsidiaryService Provider, (F) loan or advance any money or other property to any Service Provider or (G) 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 bargaining agreement or other plan, similar labor agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (gxi) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practicebelow the level of vice president, hire or terminate the employment or service of any Service Provider (or any individual who would be a Service Provider if employed or engaged on the date hereof); (xii) exercise discretion with respect to or otherwise voluntarily accelerate the lapse of restriction or vesting of any equity or equity-based awards, except as expressly provided in this Agreement; (xiii) (A) settle any Action, other than (1) settlements involving not more than $1,000,000 in monetary damages in the aggregate and that do not (x) require any material actions or impose any material restrictions on the business or operations of the Company Group, or after the Effective Time, Parent or its Subsidiaries (other than the Company Group), or (y) include the admission of wrongdoing by any member of the Company Group and (2) stockholder litigation, which is the subject of Section 6.11 or (B) settle any investigation or inquiry by any Governmental Authority, including by entering into any consent decree or other similar agreement; (A) change the Company’s financial accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federalprocedures in effect as of December 31, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)2021, other than as required by Law or GAAP or (B) write up, write down or write off the paymentbook value of any of its assets, discharge or satisfaction, other than (1) in the ordinary course of business and consistent with past practiceor (2) as may be required by Law or GAAP, of liabilities reflected or reserved against in as approved by the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practiceCompany’s independent public accountants; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Company; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (mxv) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganizationreorganization of the Company or any of the Company Subsidiaries; (xvi) (A) change or adopt (or file a request to change or adopt) any method of Tax accounting or any annual Tax accounting period, (B) make, change or rescind any material Tax election, (C) file any Tax Return relating to the Company or any of the Company Subsidiaries that has been prepared in a manner that is inconsistent with past practices, as applicable, (D) settle or compromise any claim, investigation, audit or controversy relating to Taxes, (E) affirmatively surrender any right to claim a refund of material Taxes, (F) file any amended Tax Return, (G) enter into any closing agreement with respect to any Tax or (H) waive or extend the statute of limitations with respect to any Tax Return other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business; (xvii) (A) abandon, disclaim, dedicate to the public, allow to lapse, sell, assign, transfer, encumber or incur any Lien (other than Permitted Liens) on, any Owned Intellectual Property or material Licensed Intellectual Property, including failing to perform or cause to be performed all applicable filings, recordings and other acts, or to pay or cause to be paid all required fees and Taxes, to maintain and protect the Company’s or any Company Subsidiary’s interest in such Owned Intellectual Property or material Licensed Intellectual Property; (B) license or sublicense any Intellectual Property to any third party, other than non-exclusive licenses granted pursuant to any Standard Agreement in the ordinary course of business; (C) develop, create or invent any Intellectual Property jointly with any third party, in the ordinary course of business; or (D) disclose any confidential information or confidential Company Intellectual Property to any person, in each case, other than in accordance with Section 6.03 and subject to execution of a Acceptable Confidentiality Agreement, in the ordinary course of business subject to written confidentiality and non-disclosure and non-use obligations, or to Parent or any of its Affiliates in connection with the Transactions; (xviii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any Affiliate Transaction; or (nxix) agree, resolve, announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing. (c) Notwithstanding the foregoing or anything to the contrary in this Agreement, clause (ii) of Section 5.01(a) shall only be applicable to (i) Section 5.01(a) and Sections 5.01(b)(viii), 5.01(b)(ix), 5.01(b)(x), 5.01(b)(xi), 5.01(b)(xiv) and 5.01(b)(xix) to the extent related to the foregoing, and (ii) the extent that either (A) such action or the failure to take such action in response to COVID-19 Measures is reasonably determined by the Company, based on the advice of outside legal counsel, to be necessary to comply with such COVID-19 Measures or (B) such action or the failure to take such action in response to COVID-19 is reasonably determined by the Company to be necessary in response to COVID-19 in order to maintain and preserve in all material respects the business organization, assets, properties and business relations of the Company and its Subsidiaries, taken as a whole; provided, however, that the Company shall give Parent prior written notice of any such act or failure to act to the extent reasonably practicable, which notice shall describe in reasonable detail the act or failure to act and the reason(s) that such act or failure to act is being taken, or omitted to be taken, pursuant to this paragraph and take into account in good faith the reasonable suggestions of Parent with such actions or failures to act to be taken by the Company, and, in the event that it is not reasonably practicable for the Company to give the prior written notice described in this proviso, the Company shall instead give such written notice to Parent promptly after such act or failure to act.

Conduct of Business by the Company Pending the Merger. (a) The Company covenants and agrees that, between the date of this Agreement and the Appointment earlier of the Effective Time and the termination of this Agreement pursuant to Article IX, except (i) as defined set forth in Section 7.03(c6.01 of the Company Disclosure Schedule, (ii) as expressly contemplated or permitted by this Agreement or (iii) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed)), unless Parent shall otherwise agree in writing, the businesses of the Company and the its Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, shall be conducted only in, and the Company and the its Subsidiaries shall not take any action except in in, the ordinary course of business and in a manner consistent with past practice; practice and the Company and each of its Subsidiaries shall use its their reasonable best efforts to (A) preserve substantially intact the their existing assets, (B) preserve substantially intact their business organization of the Company and the Subsidiariesorganization, to (C) keep available the services of the their current officers, employees and consultants of the Company consultants, (D) maintain and the Subsidiaries and to preserve the intact their current relationships of the Company and the Subsidiaries with customers, suppliers, distributors, creditors and other persons Persons with which the Company or any Subsidiary of its Subsidiaries has significant business relations; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, relations and (2E) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth comply in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. all material respects with applicable Law. (b) By way of amplification and not limitation, except as expressly contemplated by this Agreement and set forth in Section 6.01 of the Company Disclosure LetterSchedule, neither as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company nor any Subsidiary shallwill not and will not permit its Subsidiaries, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any earlier of the following without Effective Time and the prior written consent termination of Parentthis Agreement pursuant to Article IX, to: (ai) amend or otherwise change its Certificate memorandum and articles of Incorporation association or By-Laws or other equivalent organizational documents; (bii) adopt a plan of complete or partial liquidation, dissolution, scheme of arrangement, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger); (iii) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any of its Subsidiaries; (iv) (A) issue, sell, pledge, terminate or dispose of, (B) grant an Encumbrance on or encumberpermit an Encumbrance to exist on, or (C) authorize the issuance, sale, pledge, disposition, grant termination or encumbrance disposition of, (i) or granting or placing of an Encumbrance on, any shares or units (if applicable) of any class of share capital stock or other type of equity interests ownership interests, of the Company or any Subsidiaryof its Subsidiaries, or any agreement, contract or instrument amounting to control over, or enabling control of, the Company or any of its Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares share capital or units (as applicable) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, including any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiaryof its Subsidiaries; (v) (A) sell, pledge or dispose of, (B) grant an Encumbrance on or permit an Encumbrance to exist on, or (C) authorize the sale, pledge or disposition of, or granting or placing of an Encumbrance on, any material assets of the Company or any of its Subsidiaries having a current value in excess of US$1 million, except in the ordinary course of business and in a manner consistent with past practice; (cvi) declare, set aside, make or pay any dividend or other distribution, payable in cash, stockshare, property or otherwise, with respect to any of its capital stockshare capital, except for dividends by any of the Company’s direct or indirect wholly owned Subsidiary Subsidiaries to the Company or any of its other Subsidiarywholly owned Subsidiaries; (dvii) adjust, reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant of the Company or any Subsidiaryshare capital; (eviii) (iA) acquire (including, without limitation, including by merger, consolidation, consolidation or acquisition of stock share or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets (other than (A) those with a value or purchase price not in excess of US$1 million in any license transaction or a related series of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and transactions; (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) incur any indebtedness for borrowed money Indebtedness or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any personPerson, or make any loans or advances (including loans or advances to capital contribution to, or investment in, any director, officer, employee, agent or consultant of the Company or any Subsidiary)Person, except for advances of business expenses Indebtedness incurred in the ordinary course of business and consistent with past practice)in an amount not to exceed US$2 million in the aggregate, or grant including any security interest in any of its assets (including Intellectual Property) except short-term borrowings to fund working capital needs, and such other actions taken in the ordinary course of business and consistent with past practice; (iiiC) enter into authorize, or make any contract commitment with respect to, any single capital expenditure which is in excess of US$1 million or agreement other than capital expenditures which are, in the ordinary course aggregate, in excess of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of US$1 million for the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or and its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, taken as a whole; or (viD) enter into or amend any contract, agreement, commitment or arrangement Contract with respect to any matter set forth in this Section 6.01(e6.01(b)(viii); (fix) hire additional employeescreate any new Subsidiary; (x) engage in the conduct of any new line of business material to the Company and its Subsidiaries, taken as a whole; (xi) make any changes with respect to accounting policies or procedures materially affecting the reported consolidated assets, liabilities or results of operations of the Company and its Subsidiaries, except hiring as required by changes in applicable generally accepted accounting principles or Law; (xii) revalue in any material respect any of its assets, including, without limitation, writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary and usual course of business and consistent with past practicepractice or as required by GAAP; (xiii) waive the benefits of, or increase agree to modify in any manner, any standstill or similar agreement with respect to any class of equity securities of the compensation payable Company or to become payable any of its Subsidiaries; (xiv) commence or the benefits provided to its directorssettle any Action, officers or employees, except for increases other than settlements (A) in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of and (B) requiring the Company and its Subsidiaries to pay monetary damages not exceeding US$200,000; (xv) enter into, amend, modify or consent to the termination of any Subsidiary who are not directors Material Contract, or officers enter into, amend, waive, modify or consent to the termination of the Company, ’s or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any actionits Subsidiaries’ material rights thereunder, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (jxvi) amend, modify make or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of change any material rights of the Company or Tax election, materially amend any Subsidiary thereunderTax Return (except as required by applicable Law), in a manner adverse in enter into any material closing agreement with respect to the CompanyTaxes, surrender any right to claim a material refund of Taxes, settle or finally resolve any material controversy with respect to Taxes or materially change any method of Tax accounting; (kxvii) commence (A) abandon, disclaim, dedicate to the public, sell, assign or settle grant any security interest in, to or under any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandonedProperty, dedicated, or disclaimed, fail including failing to perform or make any cause to be performed all applicable filings, recordings or and other similar actions or filingsacts, or fail to pay or cause to be paid all required fees and taxes required or advisable Taxes, to maintain and protect its interest in each the material Company Intellectual Property; (B) grant to any third party any license, or enter into any covenant not to sux, with respect to any material Company Intellectual Property, except non-exclusive licenses in the ordinary course of business consistent with past practice; (C) develop, create or invent any Intellectual Property jointly with any third party, except under existing arrangements that have been disclosed to Parent; (D) disclose or allow to be disclosed any confidential information or confidential Company Intellectual Property to any Person, other than employees of the Company or its Subsidiaries that are subject to a confidentiality or non-disclosure covenant protecting against further disclosure thereof, except under existing arrangements that have been disclosed to Parent; or (E) fail to notify Parent promptly of any infringement, misappropriation or other violation of or conflict with any material Company Intellectual Property of which the Company or any of its Subsidiaries becomes aware and every material item of to consult with Parent regarding the actions (if any) to take to protect such Company Registered Intellectual Property; (mxviii) adopt a plan except as required pursuant to existing written plans or Contracts in effect as of complete the date hereof or partial liquidationas otherwise required by applicable Law or carried out in the ordinary course of business consistent with past practice, dissolution(A) enter into any new employment or compensatory agreements (including the renewal of any consulting agreement) with any officer or director of the Company or any of its Subsidiaries with an annual base salary in excess of US$200,000, recapitalization (B) grant or provide any severance or termination payments or benefits to Service Providers in an amount in excess of US$200,000 in the aggregate, (C) increase the compensation, bonus or pension, welfare, severance or other reorganizationbenefits of, pay any bonus to by an amount in excess of US$1 million, or make any new equity awards to Service Providers in the aggregate, (D) establish, adopt, amend or terminate any Plan (except as required by Law) or amend the terms of any outstanding equity-based awards, (E) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Plan, to the extent not already required in any such Plan, (F) materially change any actuarial or other assumptions used to calculate funding obligations with respect to any 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 (G) forgive any loans to directors, officers or employees of the Company or any of its Subsidiaries; (xix) terminate or cancel, let lapse, or amend or modify in any material respect, other than renewals in the ordinary course of business, any insurance policies maintained by it which is not promptly replaced by a comparable amount of insurance coverage; (xx) fail to make in a timely manner any filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder; or (nxxi) agree, authorize, commit, announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing. (c) In addition, between the date of this Agreement and the Effective Time, the Company and its Subsidiaries shall (i) prepare and timely file all Tax Returns required to be filed in all material respects, (ii) timely pay all Taxes shown to be due and payable on such Tax Returns in all material respects, and (iii) promptly notify Parent of any notice of any material suit, claim, action, investigation, audit or proceeding in respect of any Tax matters (or any significant developments with respect to ongoing suits, claims, actions, investigations, audits or proceedings in respect of such Tax matters).

Conduct of Business by the Company Pending the Merger. (a) The Company covenants and agrees that, that between the date of this Agreement hereof and the Appointment Time (as defined in Section 7.03(c))Effective Time, unless Parent shall otherwise agree in writing, the businesses which agreement shall not be unreasonably withheld, conditioned or delayed (and except as set forth in Section 5.1 of the Company and the Subsidiaries shall, except Disclosure Letter or as otherwise expressly contemplated contemplated, permitted or required by this Agreement), be conducted only in, and the Company shall and shall cause each of its Subsidiaries to, (i) maintain its existence in good standing under applicable Law, (ii) subject to the Subsidiaries shall not take any action except restrictions and exceptions set forth in Section 5.1(b) or elsewhere in this Agreement, conduct its business and operations in all material respects only in the ordinary course of business and in a manner consistent with past practice; practice and the Company shall (iii) use commercially reasonable efforts to, in all material respects, (A) preserve intact its reasonable best efforts to preserve substantially intact the assets, properties, Contracts or other legally binding understandings and business organization of the Company and the Subsidiariesorganizations, to (B) keep available the services of the its current officers, officers and key employees and consultants of the Company and the Subsidiaries and to (C) preserve the current relationships of the Company and the its Subsidiaries with customers, suppliersvendors, distributors, lessors, licensors, licensees, creditors, employees, contractors and other persons Persons with which the Company or any Subsidiary of its Subsidiaries has significant business relations; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) amend or otherwise change its Certificate of Incorporation or By-Laws or equivalent organizational documents;. (b) issueWithout limiting the foregoing, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options covenants and Company Stock Awards outstanding on agrees that between the date hereof and the grant Effective Time, the Company shall not and shall cause each of a maximum its Subsidiaries not to (except as expressly contemplated, permitted or required by this Agreement, as set forth on the applicable subsection of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual PropertySection 5.1(b) of the Company Disclosure Letter or any Subsidiarywith the prior written approval of Parent, except in the ordinary course of business and in a manner consistent with past practice;which approval shall not be unreasonably withheld, conditioned or delayed): (ci) declare, set aside, establish a record date for, make or pay any dividend dividends or other distribution, payable distributions (whether in cash, stock, property stock or otherwise, with property) in respect to of any of its capital stockstock or other Equity Interests or enter into any agreement with respect to the voting of its capital stock or other Equity Interests, except for dividends by or other distributions from any direct or indirect wholly owned Subsidiary of the Company to the Company or any other Subsidiarywholly-owned Subsidiary of the Company; (dii) reclassify, combineadjust, split, subdivide combine or redeemreclassify any of its capital stock or that of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or purchase in substitution for shares of its capital stock or that of its Subsidiaries; (iii) repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its or its Subsidiaries’ capital stockstock or any Company Common Stock Rights or Subsidiary Stock Rights (except pursuant to restricted stock award agreements outstanding on the date hereof) or any other Equity Interests, except for the repurchase or reacquisition of securities to effect any withholding obligations in connection with the termination exercise of service Company Common Stock Options or the issuance of any employee, director or consultant of shares under the Company or any SubsidiaryESPP; (eiv) (i) acquire (includingissue, without limitationdeliver or sell, by merger, consolidationpledge or encumber any shares of its or its Subsidiaries’ capital stock, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets Company Common Stock Rights (other than (A) any license the issuance of Intellectual Property shares of Company Common Stock upon the exercise of Company Common Stock Options outstanding on the date hereof, upon the settlement of Company RSUs outstanding on the date hereof, or pursuant to the ESPP (in accordance with the terms of Section 1.7(f)), in connection with agreements in effect on the date of this Agreement or as contemplated in Section 5.1(b)(x)); (v) amend the Company and Certificate of Incorporation or the Subsidiaries that is not material to the business Company Bylaws or equivalent organizational documents of the Company and the Company’s Subsidiaries; (vi) incur, taken as a wholecreate, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) incur assume or otherwise become liable for any indebtedness Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorseguaranty, endorse or otherwise become liable or responsible for, for the obligations Indebtedness for borrowed money of any person, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary)other Person, except (A) for advances of business expenses trade payables incurred in the ordinary course of business and consistent with past practice), (B) for loans or grant advances by the Company to Subsidiaries of the Company or by any security interest in Subsidiary of the Company to the Company; (vii) (A) make any of its assets (including Intellectual Property) except in the ordinary course of business and consistent with past practice; (iii) enter into loans or advances to any contract or agreement other person other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice or in salaries, wages, bonuses, incentives or benefits of employees accordance with (x) the indemnification and expense advancement provisions of the Company Certificate of Incorporation or any Subsidiary who are not directors the Company Bylaws or officers of (y) the Company, indemnification agreements set forth on Section 3.15(a)(viii) or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee Section 3.15(a)(xviii) of the Company Disclosure Letter or of (B) make any Subsidiary, capital contributions to or establish, adopt, enter into or amend investments in any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect theretoPerson; (gviii) take merge or consolidate with any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies entity or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Company; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization; orreorganization or otherwise permit its corporate existence to be suspended, lapsed or revoked; (nix) announce change in any material respect its Tax accounting methods, principles or practices, except as required by GAAP or applicable Law; (x) alter, amend or create any obligations with respect to compensation, severance, benefits, change of control payments or any other payments to present or former employees, directors or Affiliates of the Company, other than alterations or amendments (A) made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company, (B) as expressly contemplated by Section 1.7, (C) required under applicable Law or by an intentionEmployment Agreement as in effect as of the date hereof or (D) pursuant to Company Benefit Plans and agreements with newly hired employees on terms consistent in all material respects with those provided to other employees of the Company or its Subsidiaries of comparable level; (xi) hire any new employees, other than non-officer employees (which for this purpose shall be employees with a title below the level of “vice president”), in the ordinary course of business consistent with past practice; (xii) sell, license, mortgage, transfer, lease, pledge or otherwise subject to any Encumbrance (including by merger, consolidation or sale of stock or assets) or otherwise dispose of any entity, business or material rights, properties or assets (including stock or other ownership interests of its Subsidiaries), other than Permitted Encumbrances, non-exclusive licenses, otherwise in the ordinary course of business consistent with past practice or any capital expenditures permitted by (or approved by Parent) under Section 5.1(b)(xvi); (xiii) except for entering into any non-exclusive license agreements in the ordinary course of business, sell, assign, license, abandon, let lapse, transfer or grant to any third party any rights with respect to, or encumber or subject (or allowed to become subject) to any lien, other than Permitted Encumbrances, or otherwise dispose of any Company Intellectual Property; (xiv) acquire (by merger, consolidation or acquisition of stock or assets) any business for which the aggregate amount to be paid in respect of such business would exceed $1,000,000; (xv) make any material Tax election not consistent with past practice, enter into a closing agreement relating to any formal material Tax or informal settle or compromise any income Tax refund or Liability or fail to file any material Tax Return when due or fail to cause such Tax Returns when filed to be complete and accurate in all material respects or amend any material Tax Return; (xvi) incur or commit to incur any capital expenditures, or any obligations or liabilities in connection therewith that are in excess of $750,000 individually in any fiscal quarter or $1,500,000 in the aggregate in any fiscal quarter, except in the ordinary course of business consistent with past practice, or materially delay any approved material capital expenditures; (xvii) pay, discharge, settle, cancel, incur or satisfy any material Liabilities, other than the payment, discharge, settlement, cancellation, incurrence or satisfaction of Liabilities in the ordinary course of business consistent with past practice, as required by any applicable Law, as accrued for in the Company Financial Statements or as required by the terms of any Contract of the Company, as in effect on the date hereof; (xviii) enter into, modify, amend or terminate (A) any Contract that if so entered into, modified, amended or terminated would reasonably be likely to (x) have a Company Material Adverse Effect or (y) prevent or materially delay the consummation of the transactions contemplated by this Agreement or (B) any Company Material Contract, except (x) in the ordinary course of business, (y) for expirations or renewals in accordance with their terms or (z) as otherwise permitted pursuant other clauses of this Section 5.1(b); (xix) terminate any officer (which for this purpose shall be employees with a title of “vice president” or more senior) of the Company or any of its Subsidiaries other than for good reason or for cause; (xx) engage in any transaction with, or enter into any agreement, arrangement or understanding with any Affiliate of the Company or other Person covered by Item 404 of Regulation S-K promulgated under the Exchange Act that would be required to be disclosed under such Item 404; (xxi) compromise, release, waive or settle any Action having a value or in an amount, individually or in the aggregate, in excess of $1,000,000; (xxii) effectuate a “plant closing” or “mass layoff,” as those terms are defined in WARN, affecting in whole or in part any site of employment, facility, operating unit or employee of the Company or any of its Subsidiaries; (xxiii) knowingly commit, authorize, agree to take or enter into any letter of intent or similar agreement or otherwise make a commitment, arrangement with respect to do any of the foregoingactions described in this Section 5.1(b). (c) 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 of its Subsidiaries 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 Subsidiaries’ respective operations.

Conduct of Business by the Company Pending the Merger. (a) The Company covenants and agrees that, that during the period between the date of this Agreement and the Appointment earlier of the termination of this Agreement pursuant to Article VII hereof and the Effective Time (as defined in Section 7.03(c)the “Pre-Closing Period”), unless Parent shall otherwise agree in writing, the businesses writing and except as set forth in Section 5.1 of the Company and the Subsidiaries shall, except Disclosure Letter or as otherwise expressly contemplated contemplated, permitted or required by this Agreement, be conducted only inthe Company shall use commercially reasonable efforts to, and shall use commercially reasonably efforts to cause each of its Subsidiaries to, (i) maintain its existence in good standing under applicable Law, (ii) subject to the Company restrictions and the Subsidiaries shall not take any action except exceptions set forth in Section 5.1(b) or elsewhere in this Agreement, conduct its business and operations, in all material respects, in the ordinary and usual course of business and in a manner consistent with past prior practice; , and (iii) (A) preserve intact its assets, including the Company shall use its reasonable best efforts to preserve substantially intact the Intellectual Property, properties, contracts or other legally binding understandings, licenses and business organization of the Company and the Subsidiariesorganizations, to (B) keep available the services of the its current officers, officers and key employees and consultants of the Company and the Subsidiaries and to preserve (C) preserve, in all material respects, the current relationships of the Company and the its Subsidiaries with customers, suppliers, distributors, lessors, licensors, licensees, creditors, employees, contractors and other persons Persons with which the Company or any Subsidiary of its Subsidiaries has significant material business relations; provided. (b) Without limiting the foregoing, howeverthe Company covenants and agrees that during the Pre-Closing Period, that (1) the Company shall not be required and shall cause each of its Subsidiaries not to take any action pursuant to this Section 6.01 that would cause any representation (except as expressly contemplated, permitted or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach ofAgreement, or inaccuracy in, any of the representations and warranties of the Company as set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) amend or otherwise change its Certificate of Incorporation or By-Laws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant applicable subsection of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual PropertySchedule 5.1(b) of the Company Disclosure Letter or any Subsidiarywith the prior written approval of Parent (such prior written approval not to be unreasonably withheld, except conditioned or delayed in the ordinary course case of business (vii), (viii), (ix), (xiv), (xvi), (xviii), (xix), (xx), (xxvi), and in a manner consistent with past practice; (cxxx)): (i) declare, set aside, establish a record date for, make or pay any dividend dividends or other distribution, payable distributions (whether in cash, stock, property stock or otherwise, with property) in respect to of any of its capital stock, except for dividends by stock or enter into any direct or indirect wholly owned Subsidiary agreement with respect to the Company voting of its capital stock or any other Subsidiary; that of its Subsidiaries; (dii) reclassify, combineadjust, split, subdivide combine or redeemreclassify any of its capital stock or that of its Subsidiaries or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or purchase in substitution for shares of its capital stock; (iii) repurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or that of its Subsidiaries (except pursuant to restricted stock award agreements outstanding on the date hereof); (iv) issue, deliver or sell, pledge or encumber any shares of its or its Subsidiaries’ capital stock, except for or any Company Common Stock Rights (other than the repurchase issuance of shares of Company Common Stock upon the exercise of Company Common Stock Options, RSUs, or reacquisition pursuant to the ESPP); (v) other than subject to the terms hereof with respect to Acquisition Proposals and Superior Proposals, take any action that would reasonably be expected to and that are intended to result in any of securities the conditions set forth in connection with Article VI not being satisfied or that would impair the termination of service of any employee, director or consultant ability of the Company to consummate the Merger in accordance with the terms hereof or any Subsidiary; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets materially delay such consummation (other than (A) any license of Intellectual Property than, to the Company and extent arising out of or relating to disputes among the Subsidiaries that is not material parties to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practicethis Agreement); (iivi) incur amend the Company Articles of Incorporation or Company Bylaws or equivalent organizational documents of the Company’s Subsidiaries; (vii) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or issue any debt securities other Indebtedness in excess of $250,000 or assume, guarantee or endorseguaranty, endorse or otherwise become liable or responsible for, for the obligations Indebtedness of any person, or other Person; (viii) make any loans loans, advances or advances (including loans capital contributions to or advances to investments in any director, officer, employee, agent or consultant of the Company or any Subsidiary)other Person, except for travel advances of business expenses in the ordinary course of business and consistent with past practice)practices to employees of the Company or its Subsidiaries; (ix) sell, license, mortgage, lease, transfer, encumber or pledge any Company Intellectual Property, or grant create or suffer to exist any security interest in any lien thereupon (other than Permitted Encumbrances or the sale or license of its assets (including Intellectual Property) except Company products in the ordinary course of business and consistent with past practicebusiness); (iiix) enter into merge or consolidate with any contract other entity or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Company; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganizationreorganization or otherwise permit its corporate existence to be suspended, lapsed or revoked; (xi) change its material Tax accounting methods, principles or practices, except as required by GAAP or applicable Laws; (xii) alter, amend or create (A) any Change of Control Obligation or (B) other obligations with respect to compensation, severance, benefits or any other payments to present or former employees, directors or Affiliates of the Company, other than (solely with respect this clause (B)), alterations or amendments (x) made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company, (y) as expressly contemplated by Section 1.7 of this Agreement or (z) required under applicable Laws; (xiii) hire any new employees other than non-officer employees in the ordinary course of business; (xiv) sell, license, mortgage, transfer, lease, pledge or otherwise subject to any Encumbrance (including by merger, consolidation, or sale of stock or assets) or otherwise dispose of any entity, business, rights, material properties or assets (including stock or other ownership interests of its Subsidiaries), other than other than Permitted Encumbrances or in the ordinary course of business consistent with prior practice; (xv) acquire any material business or securities; (xvi) make any material Tax election not consistent with prior practice or settle or compromise any income Tax Liability or fail to file any material Tax Return when due or fail to cause such Tax Returns when filed to be complete and accurate in all material respects or file any material amended Tax Return; (xvii) incur or commit to incur any capital expenditures, or any obligations or liabilities in connection therewith that individually or in the aggregate, are in excess of $500,000, except in the ordinary course of business consistent with past practices; (xviii) pay, discharge, settle, cancel, incur or satisfy any Liabilities, other than the payment, discharge or satisfaction of Liabilities in the ordinary course of business, consistent with past practice, as required by any applicable Law, as accrued for in the Company Financial Statements or as required by the terms of any contract of the Company as in effect on the date of this Agreement; (xix) waive, release, grant or transfer any right of material value, other than in the ordinary course of business, consistent with past practice, or waive any material benefits of, or agree to modify in any material adverse respect, or , subject to the terms hereof, fail to enforce, or consent to any material matter with respect to which its consent is required under, any material confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is a party; (nxx) announce an intentionother than subject to the terms hereof with respect to Acquisition Proposals and Superior Proposals, enter into into, modify, amend or terminate (A) any formal contract which if so entered into, modified, amended or informal agreement terminated would be reasonably likely to (x) have a Company Material Adverse Effect, (y) impair in any material respect the ability of the Company to perform its obligations under this Agreement or otherwise make a commitment(z) and is intended to prevent or materially delay the consummation of the transactions contemplated by this Agreement or (B) except in the ordinary course of business, to do any Company Material Contract; (xxi) terminate any officer or key employee of the Company or any of the foregoing.its Subsidiaries other than for good reason or for reasonable cause (or upon voluntary termination of any officer of key employee);

Conduct of Business by the Company Pending the Merger. (a) The Company agrees that, between the date of this Agreement and the Appointment Effective Time or the earlier termination of this Agreement, except (1) as defined expressly contemplated by any other provision of this Agreement or any Ancillary Agreement (including the issuance by the Company of any Company Notes in an amount not to exceed $50,000,000), (2) as set forth in Section 7.03(c)6.01 of the Company Disclosure Schedule, or (3) as required by Law (including COVID-19 Measures or as may be requested or compelled by any Governmental Authority), unless Parent the SPAC shall otherwise agree consent in writingwriting (which consent shall not be unreasonably conditioned, the businesses of withheld or delayed): (i) the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, be conducted only in, and the Company and the Subsidiaries shall not take any action except conduct its business in the ordinary course of business and in a manner consistent with past practicebusiness; and and (ii) the Company shall use its commercially reasonable best efforts to preserve substantially intact the business organization of the Company and the SubsidiariesCompany, to keep available the services of the current officers, key employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers, suppliers and other persons with which the Company or any Subsidiary has significant business relations; provided, however, that . (1b) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except (1) as expressly contemplated by any other provision of this Agreement, any Ancillary Agreement and (including the issuance by the Company of any Company Notes in an amount not to exceed $50,000,000), (2) as set forth in Section 6.01 of the Company Disclosure LetterSchedule, neither and (3) as required by Law (including COVID-19 Measures or as may be requested or compelled by any Governmental Authority), the Company nor any Subsidiary shallshall not, between the date of this Agreement and the Appointment TimeEffective Time or the earlier termination of this Agreement, directly or indirectly, do, or propose to do, do any of the following without the prior written consent of Parent:the SPAC (which consent shall not be unreasonably conditioned, withheld or delayed): (ai) amend or otherwise change its Certificate certificate of Incorporation incorporation or By-Laws or equivalent organizational documentsbylaws; (bii) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (iA) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any SubsidiaryCompany, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interestsstock, or any other ownership interest (including, without limitation, any phantom interest), of the Company, other than (1) the exercise or settlement of any Company Options, Company Warrants or any Subsidiary (except for Company Notes, grants of Company Options or Company RSUs within the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) limits of the Company Option Plan share reserve and (2) the conversion of Company Preferred Stock in accordance with the Company Certificate of Incorporation; or (B) any Subsidiary, except in material assets of the ordinary course of business and in a manner consistent with past practiceCompany; (ciii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any direct or indirect wholly owned Subsidiary to the Company or any other Subsidiary; (div) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for other than redemptions of equity securities from former employees upon the repurchase or reacquisition of securities terms set forth in connection with the termination of service of any employee, director or consultant of the Company or any Subsidiaryunderlying agreements governing such equity securities; (ev) (iA) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof in an amount in excess of $5,000,000; or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) incur any indebtedness for borrowed money in excess of $5,000,000 or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any person, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and consistent with past practice)advances, or intentionally grant any security interest in any of its assets assets, in each case, except with respect to accounts payable or indebtedness otherwise incurred in the ordinary course of business; (including Intellectual PropertyA) except in the ordinary course of business and consistent with past practice; (iii) or as required by a Plan, enter into any contract new, or materially amend any existing employment or severance or termination agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget director or executive officer of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; Company, (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (viB) enter into or amend any contract, agreement, commitment collective bargaining agreement or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional other labor agreements covering the Company’s employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or (C) make any change to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonusesemployee compensation, incentives or benefits after the filing of employees the Registration Statement that would reasonably be expected to require an amendment or supplement to the Registration Statement under Law; (vii) other than as required by Law, by a Plan or pursuant to the terms of an agreement entered into prior to the date of this Agreement and reflected on Section 4.10(a) of the Company or any Subsidiary who are not directors or officers of the CompanyDisclosure Schedule, or that the Company is not prohibited from entering into after the date of this Agreement, grant any severance or termination pay to, any director or enter into any employment or severance agreement with, any director, officer or other employee of the Company or Company, other than in the ordinary course of any Subsidiary, or establish, business; (viii) adopt, enter into or materially amend and/or terminate any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, material Plan except for such amendments as may be required by Law, as is necessary in order to consummate the Transactions, or desirable to cause any such plan, agreement, trust, fund, policy health and welfare plan renewals or arrangement to comply with Section 409A modifications in the ordinary course of the Code so as to avoid the imposition of additional tax with respect theretobusiness; (gix) take any action, materially amend other than reasonable and usual actions amendments in the ordinary course of business and consistent with past practicebusiness, with respect to accounting policies or procedures, other than changes that are made in accordance with PCAOB standards or GAAP; (hx) make any material tax election election, amend a material Tax Return or settle or compromise any material United States federal, state, local or non-United States income tax liability; (ixi) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) materially amend, or modify or consent to the termination (which for the avoidance of doubt shall not include the excluding any expiration of any Material Contract in accordance with its terms) of any Material Contract, Contract or amend, waive, modify or consent to the termination (excluding any expiration in accordance with its terms) of any the Company’s material rights of the Company or any Subsidiary thereunder, in each case in a manner that is adverse in any material respect to the Company, taken as a whole, except in the ordinary course of business; (kxii) commence or settle any material Action; (l) intentionally permit any material item of Company Registered Intellectual Property Company-Owned IP to lapse or to be abandoned, dedicatedinvalidated, dedicated to the public, or disclaimed, or otherwise become unenforceable or fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganizationCompany-Owned IP; or (nxiii) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, binding commitment to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company agrees that, between from the date of this Agreement until the earlier of the Effective Time and the Appointment Time termination of this Agreement pursuant to Article VIII, except as (as defined x) required by applicable Law, (y) set forth in Section 7.03(c))5.01 of the Company Disclosure Schedule or (z) expressly contemplated or permitted by this Agreement, unless Parent shall otherwise agree consent in writingwriting (such consent not to be unreasonably withheld, conditioned or delayed), (i) the businesses of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, Group Companies shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in the ordinary course of business and in a manner consistent with past practice; and (ii) the Company shall use its reasonable best efforts to preserve substantially intact the assets and the business organization of the Company and the SubsidiariesGroup Companies, to keep available the services of the current officers, officers and key employees and consultants of the Company and the Subsidiaries Group Companies and to preserve maintain in all material respects the current relationships of the Company and the Subsidiaries Group Companies with existing customers, suppliers, suppliers and other persons with which the Company or any Subsidiary Group Companies has significant material business relations; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty relations as of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by date hereof. Without limiting the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any generality of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitationforegoing paragraph, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between from the date of this Agreement until the earlier of the Effective Time and termination of this Agreement pursuant to Article VIII, except as (x) required by applicable Law, (y) set forth in Section 5.01 of the Appointment TimeCompany Disclosure Schedule or (z) expressly contemplated or permitted by this Agreement, the Company shall not and shall not permit any other Group Company to, directly or indirectly, do, do or propose to do, do any of the following without the prior written consent of Parent:Parent (such consent not to be unreasonably withheld, conditioned or delayed): (a) amend or otherwise change its Certificate memorandum and articles of Incorporation or By-Laws association or equivalent organizational documents, other than those changes to the registered address or business scope of a Group Company as reasonably needed within the ordinary course of business of such Group Company; (b) issue, sell, transfer, lease, sublease, license, pledge, dispose of, grant or encumber, or authorize the issuance, sale, transfer, lease, sublease, license, pledge, disposition, grant or encumbrance of, as appropriate, (i) any shares or units (if applicable) of any class of capital stock any Group Company (other than in connection with (A) the exercise of any Company Options or other type of equity interests of Company RSUs in accordance with the Company Share Plans, (B) the withholding of Company securities to satisfy tax obligations with respect to Company Options or any SubsidiaryCompany RSUs (C) the acquisition by the Company of its securities in connection with the forfeiture of Company Options or Company RSUs, (D) the acquisition by the Company of its securities in connection with the net exercise of Company Options in accordance with the terms thereof, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicableE) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum Class A Shares to holders of 6,628,083 Class B Shares issuable pursuant to Company Stock Options in connection with the conversion of such Class B Shares in accordance with the memorandum and Company Stock Awards outstanding on articles of association of the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or Company, (ii) any property or assets (whether real, personal or mixed, and including Intellectual Propertyleasehold interests and intangible property) of any Group Company with a value or purchase price (including the Company value of assumed liabilities) in excess of US$10,000,000, except in the ordinary course of business, or (iii) any Subsidiarymaterial Intellectual Property owned by or licensed to any Group Company, except in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stockshares, property or otherwise, with respect to any of its capital stock, except for shares (other than dividends by or other distributions from any direct or indirect wholly owned Subsidiary of the Company to the Company or any of its other SubsidiarySubsidiaries consistent with past practice); (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its share capital stockor securities or other rights exchangeable into or convertible or exercisable for any of its share capital (other than (i) the purchase of Shares to satisfy obligations under the Company Share Plans, except for including the repurchase or reacquisition withholding of securities Shares in connection with the termination exercise of service Company Options or Company RSUs in accordance with the terms and conditions of any employeesuch Company Options or Company RSUs (as applicable) and (ii) the cancellation, director repurchase and redemption or consultant re-designation and reclassification of Class B Shares in connection with the conversion thereof to Class A Shares in accordance with the memorandum and articles of association of the Company or any SubsidiaryCompany); (e) (i) acquire (includingeffect or commence any liquidation, without limitationdissolution, by scheme of arrangement, merger, consolidation, amalgamation, restructuring, reorganization, public offering or similar transaction involving any Group Company, or create any new Subsidiary, other than the Transactions; (f) acquire, whether by purchase, merger, spin off, consolidation, scheme of arrangement, amalgamation or acquisition of stock or assets or otherwise, any other business combinationassets, securities or properties, in aggregate, with a value or purchase price (including the value of assumed liabilities) in excess of US$50,000,000 in any transaction or related series of transactions; (g) make any capital contribution or investment in any corporation, partnership, other business organization or any division thereof in excess of US$50,000,000 in aggregate; (h) incur, assume, alter, amend or acquire modify any material Indebtedness, or guarantee any Indebtedness, or issue any debt securities, except for (i) the incurrence or guarantee of Indebtedness under any Group Company’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 or (ii) not in an aggregate amount in excess of assets US$50,000,000; (i) other than expenditures necessary to maintain assets in good repair consistent with the past practice, authorize, or make any commitment with respect to, any single capital expenditure which is in excess of US$5,000,000 or capital expenditures which are, in the aggregate, in excess of US$10,000,000 for the Group Companies taken as a whole; (Aj) except as required pursuant to any license Company Employee Plan or this Agreement, (i) enter into any new employment or compensatory agreements (excluding the renewal of Intellectual Property any such agreements), or terminate any such agreements, with any Employee of any Group Company other than the hiring or termination of employees with an aggregate annual compensation of less than US$150,000, (ii) grant or provide any severance or termination payments or benefits to any Employee of any Group Company, (iii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to any Employee of any Group Company and except such increases or payments, in the Subsidiaries that is aggregate, do not material to cause an increase in the business labor costs of the Company and the SubsidiariesGroup Companies, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) incur any indebtedness for borrowed money or issue any debt securities or assumeby more than 4%, guarantee or endorse, or otherwise become responsible for, the obligations of any person, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and consistent with past practice), or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize make any capital expenditure in new equity awards to any manner not reflected in the capital budget Employee of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; any Group Company, (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into amend or terminate any Company Employee Plan or materially amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit terms of any directoroutstanding Company Options, officer (vi) take any action to accelerate the vesting or employeepayment, of compensation or benefits under the Company Employee Plan, or (vii) forgive any loans to any Employee of any Group Company; (k) issue or grant any Company Option, Company RSUs or awards of other types to any person under the Company Share Plans; (l) make any changes with respect to financial accounting policies or procedures, including changes affecting the reported consolidated assets, liabilities or results of operations of the Group Companies, except for such amendments as may be necessary required by changes in statutory or desirable to cause any such plan, agreement, trust, fund, policy regulatory accounting rules or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax GAAP or regulatory requirements with respect thereto; (gm) take enter into, amend, modify, consent to the termination of, or waive any actionmaterial rights under, any Material Contract (or any Contract that would be a Material Contract if such Contract had been entered into prior to the date hereof) that calls for annual aggregate payments of US$50,000,000 or more or with a term longer than one (1) year which cannot be terminated without material surviving obligations or material penalty upon notice of ninety (90) days or less; (n) enter into any Contract between a Group Company or any of its Subsidiaries, on the one hand, and any “related party” (as such term is defined in Item 404 of Regulation S-K promulgated under the Exchange Act) of any Group Company, one the other than reasonable hand, except for (i) Contracts solely between the Company and/or its wholly-owned Subsidiaries, (ii) Contracts, with due approval following the Company’s internal governance rules and usual actions policies, entered into on an arm’s length basis and to be carried out in the ordinary course of business the Company’s business, and consistent with past practice, with respect to accounting policies or procedures(iii) Contracts permitted under Section 5.01(j); (ho) make terminate or cancel, let lapse, or amend or modify in any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)respect, other than the payment, discharge or satisfaction, renewals in the ordinary course of business and consistent with past practicebusiness, any material insurance policies maintained by it which are not promptly replaced by a comparable amount of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practiceinsurance coverage; (jp) amendcommence any Action for a claim of more than US$1,000,000 (excluding any Action seeking for an injunctive relief or other similar equitable remedies) or settle, modify release, waive or consent compromise any pending or threatened Action of or against any Group Company (A) for an amount in excess of US$1,000,000, (B) that would impose any material restrictions on the business or operations of any Group Company, or (C) that is brought by or on behalf of any current, former or purported holder of any share capital or debt securities of any Group Company relating to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the CompanyTransactions; (k) commence or settle any material Action; (lq) permit any material item of Company Registered Intellectual Property owned by any Group Company to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes Taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered material Intellectual PropertyProperty owned by any Group Company, or grant or license or transfer to any Third Party any material Intellectual Property owned by any Group Company; (mr) adopt fail to make in a plan timely manner any filings or registrations with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder; (s) enter into, or propose to enter into, any transaction involving any earn-out or similar payment payable by any Group Company, to any Third Party, other than payments in connection with purchases of complete vehicles, plant, equipment, supplies or partial liquidationcomputers in the ordinary course of business; (t) engage in the conduct of any new line of business material to the Company and its Subsidiaries, dissolutiontaken as a whole; (u) (i) amend any Tax Return, recapitalization enter into any closing agreement or other reorganizationseek any ruling from any Governmental Authority with respect to material Taxes, surrender any right to claim a material refund of Taxes, settle or finally resolve any material controversy with respect to Taxes, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, change any method of Tax accounting or Tax accounting period, or initiate any voluntary Tax disclosure to any Governmental Authority or (ii) outside of the ordinary course of business, incur any material amount of Taxes or make or change any material Tax election; (v) grant any fixed or floating security interests of the Company; or (nw) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between prior to the date of this Agreement and the Appointment Time (as defined in Section 7.03(c))Effective Date, unless Parent shall otherwise agree in writingwriting (which agreement shall not be unreasonably withheld) or except in connection with the transactions contemplated by this Agreement: (a) Except as set forth in Section 4.1 of the Company Disclosure Letter, the businesses of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, shall be conducted only inin the ordinary and usual course of business (as qualified below) and consistent with past practices, and the Company shall use all reasonable efforts to maintain and preserve intact its business organization, to maintain beneficial business relationships and good will with suppliers, contractors, distributors, customers, licensors, licensees and others having business relationships with it and keep available the services of its current key officers and employees. For all purposes of this Article 4, as applied to the Company or Parent or any of their subsidiaries, “ordinary and usual course of business” shall include a sale of uranium assets to sxr Uranium One and continuing the activities contemplated by the letter agreement with Kobex Resources Ltd. and the Subsidiaries acquisition of mineral properties. (b) Without limiting the generality of the foregoing Section 4.1(a), except as set forth in Section 4.1 of the Company Disclosure Letter, the Company shall not take directly or indirectly do any action except of the following: (i) other than as disclosed in or contemplated by the Company and Parent SEC filings, acquire, sell, encumber, lease, transfer or dispose of any assets, rights or securities that are material to the Company or terminate, cancel, materially modify or enter into any material commitment, transaction, line of business or other agreement, in each case other than in the ordinary course of business and in a manner consistent with past practice; and , or acquire by merging or consolidating with or by purchasing a substantial equity interest in or a substantial portion of the Company shall use its reasonable best efforts to preserve substantially intact the assets of, or by any other manner, any business, corporation, partnership, association or other business organization or division thereof; (ii) amend or propose to amend its articles of incorporation or bylaws or, in the case of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers, and other persons with which the Company or any Subsidiary has significant business relations; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) amend or otherwise change its Certificate of Incorporation or By-Laws or equivalent organizational their respective constituent documents; (biii) issuesplit, sell, pledge, dispose combine or reclassify any outstanding shares of, grant or encumberinterests in, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of any class of its capital stock or other type of equity interests of the Company or any Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practicestock; (civ) declare, set aside, make aside or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any direct or indirect wholly owned Subsidiary to the Company or any other Subsidiary; (dv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectlyoffer to redeem, purchase or otherwise acquire, any shares of its capital stockstock or any options, except for the repurchase warrants or reacquisition of securities in connection with the termination of service of any employee, director or consultant rights to acquire capital stock of the Company or any SubsidiaryCompany; (evi) (i) acquire (includingissue, without limitationsell, by mergerpledge, consolidationdispose of or encumber, or acquisition authorize, propose or agree to the issuance, sale, pledge or disposition or encumbrance by the Company 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, its capital stock or assets of any class, or any other business combination) securities in respect of, in lieu of, or in substitution for any corporation, partnershipclass of its capital stock outstanding on the date hereof, other business organization than issuances of common stock upon exercise of any Company Stock Options outstanding on the date hereof; (vii) modify the terms of any existing indebtedness for borrowed money or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) incur any indebtedness for borrowed money or issue any debt securities or securities; (viii) assume, guarantee or endorseguarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other person, or make any loans or advances advances; (including loans ix) authorize, recommend or advances propose any change in its capitalization; (x) take any action with respect to any director, officer, employee, agent the grant of or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and consistent with past practice), or grant any security interest increase in any of its assets severance or termination pay; (including Intellectual Propertyxi) except in the ordinary course of business and consistent with past practice; adopt or establish any new employee benefit plan; (iiixii) enter into settle or compromise any contract or agreement liability for taxes, other than in the ordinary course of business and consistent with past practice; business; (ivxiii) authorize make or commit to make capital expenditures.; (xiv) make any capital expenditure material changes in tax accounting methods except as required by GAAP or applicable Law; (xv) other than in the ordinary course of business, pay or discharge any claims, liens or liabilities involving more than $25,000 individually or $50,000 in the aggregate, which are not reserved for on the balance sheet included in the Company Financial Statements; (xvi) write off any accounts or notes receivable except in the ordinary course of business; (xvii) knowingly take, or agree to commit to take, any action that would or is reasonably likely to result in any manner of the conditions to the Merger not reflected in the capital budget being satisfied, or would make any representation or warranty of the Company attached contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Date, or that would materially impair the ability of the Company, Parent, Subsidiary or the holders of shares of Company Common Stock to consummate the Merger in accordance with the terms hereof or materially delay such consummation; or (xviii) take any action that would, or is reasonably likely to, prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 6.01(e)(iv368(a) of the Disclosure LetterCode; or (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vixix) enter into or amend modify any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Company; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization; or (n) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the Appointment earlier of the Effective Time and the date, if any, on which this Agreement is terminated in accordance with Section 7.1, except (i) as defined may be required by Law, (ii) as may be agreed in writing by Parent (which consent, in the case of Section 7.03(c)5.1(e), unless Parent Section 5.1(f), Section 5.1(g), Section 5.1(m), Section 5.1(o), Section 5.1(q) and Section 5.1(r) shall otherwise agree in writingnot be unreasonably withheld, delayed or conditioned), (iii) as may be expressly permitted or required pursuant to this Agreement or (iv) as set forth on Section 5.1 of the businesses Company Disclosure Letter, (A) the Company shall, and shall cause its Subsidiaries to, conduct the business of the Company and the its Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, be conducted only in, and the Company and the Subsidiaries shall not take any action except in the ordinary course of business and in a manner consistent with past practice; practice (including with respect to billing, collection and credit policies) and, to the Company shall extent consistent therewith, use its reasonable best efforts to preserve substantially intact the its assets and business organization of the Company and the Subsidiariesmaintain its existing relationships with material customers, suppliers, distributors, Governmental Authorities and business partners, and to keep available the services of the current officersits directors, officers and key employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers, and other persons with which the Company or any Subsidiary has significant business relations; provided, however, that (1B) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracynot, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and cause its Subsidiaries not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Timeto, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) amend or otherwise change its (i) the Certificate of Incorporation Incorporation, (ii) the Bylaws or By-Laws or (iii) such equivalent organizational documentsor governing documents of any of its Subsidiaries, in the case of such documents of any of its Subsidiaries, in a manner that would be material to Parent or Merger Sub or would, or would reasonably be expected to, have the effect of delaying or preventing the consummation of any of the Merger or the other transactions contemplated by this Agreement; (b) issuesplit, sellreverse split, pledgecombine, dispose ofsubdivide, grant reclassify, redeem, repurchase or encumberotherwise acquire or amend the terms of the Company’s or any of its Subsidiaries’ capital stock, or authorize the issuance, sale, pledge, disposition, grant other equity or encumbrance of, (i) any shares or units (if applicable) of any class of capital stock voting securities or other type of equity interests of the Company or any Subsidiaryinterests, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of the Company’s or units (as applicable) any of such its Subsidiaries’ capital stock or other type equity or voting securities or other equity interests; provided that the Company may repurchase or otherwise acquire shares in connection with (i) the acceptance of shares of Company Common Stock as payment for the per share exercise price of the Company Stock Options or as payment for Taxes incurred in connection with the exercise, vesting or settlement of Company Equity Awards, in each case in accordance with the applicable Company Equity Plan or (ii) the forfeiture of Company Equity Awards; (c) issue, sell, pledge, dispose of, encumber, grant or authorize the same with respect to, any shares of the Company’s or its Subsidiaries’ capital stock, or other equity or voting securities or other equity interests, or any options, warrants, convertible securities or other ownership interest rights of any kind to acquire any shares of the Company’s or any of its Subsidiaries’ capital stock or other equity or equity-based compensation, or other equity or voting securities or other equity interests; provided that the Company may issue the foregoing (includingi) upon the exercise, without limitationvesting or settlement of Company Equity Awards, any phantom interest)in each case in accordance with the applicable Company Equity Plan outstanding as of the date of this Agreement, (ii) pursuant to the terms of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant ESPP in effect immediately prior to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) this Agreement or (iiiii) any assets (including Intellectual Property) of to the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practiceextent permitted by Section 5.1(e); (cd) declare, set aside, authorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to the Company’s or any of its Subsidiaries’ capital stockstock or other equity interests, except for other than cash dividends and distributions paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or any other Subsidiarydirect or indirect wholly owned Subsidiary of the Company; (de) reclassifyexcept to the extent required pursuant to any Company Benefit Plan as in effect on the date of this Agreement, combine(i) establish, splitadopt, subdivide or redeementer into, amend, terminate, or purchase or otherwise acquire, directly or indirectlytake any action to accelerate rights under, any Company Benefit Plan or plan, program, policy, practice, agreement or arrangement that would be a Company Benefit Plan if it had been in effect on the date of its capital stockthis Agreement; (ii) grant or pay, except for the repurchase or reacquisition of securities in connection with the termination of commit to grant or pay, any bonus, incentive or profit-sharing award or payment to any current or former director, employee or individual service of any employee, director or consultant provider of the Company or any Subsidiaryof its Subsidiaries; (iii) increase, or commit to increase, the amount of the wages, salary, bonuses, commissions, fringe benefits, severance or other compensation (including equity or equity-based compensation, whether payable in stock, cash or other property), benefits or remuneration payable to any current or former director, employee or individual service provider of the Company or any of its Subsidiaries, except for increases in base salaries in the ordinary course of business with respect to employees at a level below vice president with less than $300,000 in annual base salary, including in connection with promotions permitted by Section 5.1(f); (iv) take any action (other than actions contemplated by this Agreement) to accelerate any payment or benefit, the vesting of any equity or equity-based award or the funding of any payment or benefit, payable or to become payable to any current or former director, employee or individual service provider of the Company or any of its Subsidiaries; (v) enter into any employment, severance, change in control, retention, individual consulting or similar agreement with any current or former director, employee or individual service provider of the Company or any of its Subsidiaries (other than entering into offer letters in the ordinary course of business that provide for “at-will” employment or employment, if at-will employment is not permitted by applicable Law in the relevant jurisdiction without any severance); (vi) communicate with employees of the Company or any Subsidiary of the Company regarding the compensation, benefits or other treatment they will receive following the Effective Time, unless such communications are consistent with the terms provided herein; or (vii) except as may be required by GAAP, materially change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan, make any voluntary contributions to a Company Benefit Plan that are outside the ordinary course of business or materially change the manner in which contributions to such Company Benefit Plans are made or the basis on which such contributions are determined; (ef) hire, engage, promote or terminate (other than for cause) any employee or other individual service provider at a level of vice president or above or who is or would be entitled to receive annual base salary of $300,000 or more; (g) make any loan or advance (other than travel and similar advances to its employees in the ordinary course of business) to any employee of the Company or any of its Subsidiaries in excess of $25,000 in the aggregate; (h) forgive any loans or advances to any officers, employees or directors of the Company or its Subsidiaries, or any of their respective Affiliates, or change its existing borrowing or lending arrangements for or on behalf of any of such Persons pursuant to an employee benefit plan or otherwise; (i) acquire (including, without limitation, including by merger, consolidation, consolidation or acquisition of stock or assets or any other business combinationotherwise) any corporation, partnership, limited liability company, joint venture, other business organization organization, business or assets of any other Person constituting a business or any division thereof or acquire portion of a business for consideration in excess of $1,000,000 in the aggregate; (j) sell, pledge, dispose of, transfer, abandon, lease, license, mortgage, incur any material amount of assets (Lien other than Permitted Liens (Aincluding pursuant to a sale-leaseback transaction or an asset securitization transaction) on or otherwise transfer or encumber any license portion of Intellectual Property to the tangible or intangible assets, business, properties or rights of the Company or any of its Subsidiaries having a fair market value in excess of $250,000 individually or $1,000,000 in the aggregate, except (i) sales of inventory and accounts receivable in the ordinary course of business, (ii) transfers solely among the Company and its direct or indirect wholly owned Subsidiaries, (iii) disposition of obsolete tangible assets or expired inventory or (iv) with respect to immaterial leases, licenses or other similar grants of real property, any immaterial grant, amendment, extension, modification, or renewal in the ordinary course of business; (k) cancel any material Indebtedness (individually or in the aggregate) or, except in the ordinary course of business, settle, waive or amend any claims or rights of substantial value; (l) (i) except as between or among the Company or one or more direct or indirect wholly owned Subsidiaries that is not material to the business of the Company and the SubsidiariesCompany, taken as a wholeincur, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) incur create, assume or otherwise become liable for any indebtedness Indebtedness for borrowed money or issue or sell any debt securities or assumeoptions, guarantee warrants, calls or endorse, or otherwise become responsible for, the obligations of other rights to acquire any person, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant debt securities of the Company or any Subsidiaryof its Subsidiaries, (ii) except in the ordinary course of business, incur or assume any other form of Indebtedness and (iii) make any loans, advances or capital contributions to, or investments in, any other Person; (m) terminate, enter into, agree to any material amendment, supplement or modification of or renew or waive, release or assign any material rights (“Certain Restricted Contract Actions”) under any Company Material Contract, any Contract that would have been a Company Material Contract had it been entered into prior to the date of this Agreement or any Company Lease, except that the Company and its Subsidiaries may undertake the Certain Restricted Contract Actions in the ordinary course of business for Contracts of the type described in Section 3.14(a)(i), Section 3.14(a)(ii), Section 3.14(a)(iv), Section 3.14(a)(v), Section 3.14(a)(vi) (only with respect to the types of Indebtedness specified in clauses (iii) and (v) of the definition of Indebtedness), Section 3.14(a)(viii) or Section 3.14(a)(xiv) (only insofar as it relates to distribution agreements); provided, however, that the foregoing exception shall not apply to any Contract that requires or provides for consent, acceleration, termination or any other material right or consequence triggered in whole or in part by the Merger or any of the other transactions contemplated by this Agreement; (n) make any material change to its methods of financial accounting, except as required by GAAP (or any interpretation thereof) or Regulation S-X of the Exchange Act; (o) for each period set forth in Section 5.1(o) of the Company Disclosure Letter, make aggregate capital expenditures during such period in excess of 110% of the budgeted amount set forth in Section 5.1(o) of the Company Disclosure Letter for such period; (p) write up, write down or write off the book value of any material assets, except to the extent required by GAAP; (q) release, compromise, assign, settle or agree to settle any Proceeding (excluding (i) any Proceeding relating to Taxes, which shall be governed exclusively by Section 5.1(t) and (ii) any Proceeding governed by Section 5.16), other than settlements that result solely in monetary obligations of the Company or its Subsidiaries (without the admission of wrongdoing or a nolo contendere or similar plea, the imposition of injunctive or other equitable relief, or restrictions on the future activity or conduct, by, of or on Parent, the Company or any of their respective Subsidiaries) involving payment by the Company or any of its Subsidiaries of an amount not greater than $250,000 individually or $2,500,000 in the aggregate (provided, however, the foregoing exceptions shall not apply to any Proceeding involving an employee of the Company or its Subsidiaries at the level of vice president or above); (r) fail to use commercially reasonable efforts to maintain in effect the existing material insurance policies covering the Company and its Subsidiaries and their respective properties, assets and businesses; (i) sell, transfer, assign, lease, license or otherwise dispose of (whether by merger, stock or asset sale or otherwise) to any Person any rights to any Company Owned IP (except for advances of business expenses licensing non-exclusive rights) (A) to customers or suppliers in their capacities as such in the ordinary course of business and consistent with past practice)(B) pursuant to material transfer agreements, or grant any security interest the primary purpose of which is to provide tangible materials as between the parties thereto, and clinical research agreements, the primary purpose of which is conducting clinical research activities on behalf of a party thereto, in any of its assets (including Intellectual Property) except each case entered into in the ordinary course of business business; (ii) fail to use all reasonable efforts not to cancel, dedicate to the public, disclaim, forfeit, reissue, reexamine or abandon without filing a substantially identical counterpart in the same jurisdiction with the same priority or allow to lapse (except with respect to patents expiring in accordance with their terms) any Intellectual Property, other than those of immaterial value to the Company (including by failing to take necessary actions to prosecute and consistent with past practicemaintain in full force and effect any registrations or applications therefor); or (iii) enter into any contract Contract or agreement amendment to any Contract that would, or would purport to, assign or grant a covenant not to xxx or exclusivity obligation on any material Intellectual Property owned by Parent or its Affiliates (excluding the Company or its Subsidiaries), or subject Parent or any of its Affiliates (excluding the Company and its Subsidiaries) to any non-compete or other than in material restriction on the ordinary course conduct of business and consistent its business; (t) (i) make, change or revoke any material Tax election or change any material aspect of its method of Tax accounting; (ii) file any material amendment to a material Tax Return; (iii) settle or compromise any audit or Proceeding with past practicerespect to a material amount of Taxes; (iv) authorize any capital expenditure in any manner not reflected in the capital budget agree to an extension or waiver of the Company attached as Section 6.01(e)(iv) statute of the Disclosure Letterlimitations with respect to a material amount of Taxes; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, “closing agreement” within the operations meaning of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A 7121 of the Code so as to avoid the imposition (or any similar provision of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liabilityU.S. Law) with respect to any material Tax or request any material Tax ruling; or (vi) surrender any right to claim a material Tax refund; (iu) pay, discharge merge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of consolidate the Company or any Subsidiary thereunder, in a manner adverse in of its Subsidiaries with any material respect to the Company; (k) commence Person or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganizationreorganization of the Company or any of its Subsidiaries; or (nv) announce an intention, enter into any formal Contract to do, authorize or informal agreement adopt any resolutions approving, or otherwise make a commitmentannounce an intention to do, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. (a) The Company covenants and agrees that, between the date of this Agreement and the Appointment Time Effective Time, except (i) as defined in Section 7.03(c)contemplated or permitted by this Agreement, (ii) as required by applicable Law or (iii) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), unless Parent the Company shall otherwise agree in writing, use its reasonable best efforts to carry on the businesses of the Company and its Subsidiaries in the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, be conducted only in, ordinary course and in a manner consistent with past practice in all material respects and the Company and the each of its Subsidiaries shall use their reasonable best efforts, consistent with past practice, to preserve substantially intact their business organization, maintain in effect all material Company Permits, and maintain in all material respects their current relationships and goodwill with customers, suppliers, and distributors with which the Company or any of its Subsidiaries has material business relations as of the date hereof. (b) By way of amplification and not take limitation, except as (i) set forth in Section 6.01(b) of the Company Disclosure Schedule, (ii) as required by applicable Law, (iii) as contemplated or permitted by any other provision of this Agreement or (iv) with the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed, neither the Company nor any of its Subsidiaries shall, between the date of this Agreement and the Effective Time, directly or indirectly, do any of the following (it being understood and hereby agreed that if any action is expressly permitted by any of the following subsections, such action shall be expressly permitted under Section 6.01(a)): (i) amend or otherwise change its memorandum and articles of association or equivalent organizational documents; (ii) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant, or encumbrance of, or redeem, purchase or otherwise acquire, any shares of the Company or any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for such shares, or any options, warrants or other rights of any kind to acquire any shares or such convertible or exchangeable securities (including the Company Share Awards, share appreciation rights, phantom stock or similar instruments), other than in connection with (A) the exercise of Company Share Awards outstanding on the date hereof, in accordance with their terms on the date hereof or entered into or amended in compliance with this Agreement, (B) the acquisition by the Company of its securities in connection with the forfeiture of Company Share Awards outstanding on the date hereof, in accordance with their terms on the date hereof, (C) the acquisition by the Company of its securities in connection with the net exercise of Company Share Awards outstanding on the date hereof, in accordance with their terms on the date hereof, (D) the issuance of Company securities as required to perform any obligations of the Company outstanding as of the date hereof under which the Company is obligated to make such issuance for any earn-outs payable in connection with the acquisition of any Person or the assets or business of any Person pursuant to a Material Contract disclosed under Section 4.14(a)(v) for an aggregate value of not more than $6,000,000, or (E) the transfer or other disposition of securities between or among the Company and its direct or indirect wholly-owned Subsidiaries; (iii) (A) sell, transfer, lease, or otherwise dispose of, or authorize the sale, transfer, lease or other disposition of material assets of the Company or any of its Subsidiaries having a current value in excess of $10,000,000 in the aggregate, except (x) in the ordinary course of business and in a manner consistent with past practice or (y) any sale, transfer, lease, pledge or other disposition of securities between or among the Company and its direct or indirect wholly-owned Subsidiaries in the ordinary course of business and in a manner consistent with past practice; and the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers, and other persons with which the Company or any Subsidiary has significant business relations; provided, however, that (1B) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) amend or otherwise change its Certificate of Incorporation or By-Laws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant an Encumbrance on or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) permit an Encumbrance to exist on any shares or units (if applicable) of any class of capital stock or other type of equity interests material assets of the Company or any Subsidiaryof its Subsidiaries, or (C) adopt, pass any optionsresolution to approve or make any petition or similar proceeding or order in relation to, warrantsa plan of complete or partial liquidation, convertible securities dissolution, scheme of arrangement, merger, consolidation, restructuring, recapitalization or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practicereorganization; (civ) declare, set aside, make or pay any dividend or other distribution, payable in cash, stockshares, property or otherwise, with respect to any of its capital stockshares, except for dividends by any of the Company’s direct or indirect wholly wholly-owned Subsidiary Subsidiaries to the Company or any of its other Subsidiarywholly-owned Subsidiaries in the ordinary course of business and in a manner consistent with past practice, or enter into any agreement with respect to voting or registration of its share capital; (dv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, amend the terms of any of its shares or any share capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service other ownership interests of any employee, director or consultant of the Company or any SubsidiaryCompany’s Subsidiaries; (evi) (i) directly or indirectly acquire (including, without limitation, including by merger, consolidation, consolidation or acquisition of stock or assets shares or any other business combination) any corporation, partnership, other business organization or any division thereof thereof, or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business all or substantially all of the Company and the Subsidiariesassets of any corporation, taken as a wholepartnership, as currently conducted and or other business organization; (Bvii) acquisitions of inventory and supplies that are consistent with past practice); (ii) incur incur, issue, renew, prepay, syndicate, redeem, acquire, refinance or modify any indebtedness for borrowed money Indebtedness or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any personPerson, or make any loans or advances or capital contributions to, or investments in, any Person other than (including loans x) intercompany agreements or advances (y) a Contract in respect of any bank acceptance, cash collateralized letter of guarantees, letter of credit, pledge or deposit to secure the performance of bids, trade contracts, leases, surety and appeal bonds, performance bonds and other obligations of a similar nature provided that the aggregate outstanding amount of Indebtedness referred to in clause (y) shall not exceed $4,000,000; (viii) offer, place or arrange any director, officer, employee, agent issue of debt securities or consultant other credit facilities that would reasonably be expected to compete with or impede the Debt Financing or cause the breach of any provisions of the Company Debt Financing Commitment or cause any Subsidiary), except for advances of business expenses condition set forth in the ordinary course of business and consistent with past practice), or grant any security interest in any of its assets Debt Financing Commitment not to be satisfied; (including Intellectual Propertyx) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than expenditures necessary to maintain existing assets in the ordinary course good repair, authorize or make any commitment with respect to, any single capital expenditure which is individually in excess of business and consistent with past practice; $2,000,000 or (ivy) authorize or make any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfactioncapital expenditures which are, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunderaggregate, in a manner adverse in any material respect to the Companyexcess of $12,000,000; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization; or (n) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company agrees that, between from the date of this Agreement until the earlier of the Effective Time and the Appointment Time termination of this Agreement pursuant to Article VIII, except as (as defined in Section 7.03(c))x) required by applicable Law, or (y) expressly contemplated or permitted by this Agreement, unless Parent shall otherwise agree consent in writing, (i) the businesses of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, Group Companies shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in the ordinary course of business and in a manner consistent with past practice; and (ii) the Company shall use its reasonable best efforts to preserve substantially intact the assets and the business organization of the Company and the SubsidiariesGroup Companies, to keep available the services of the current officers, officers and key employees and consultants of the Company and the Subsidiaries Group Companies and to preserve maintain in all material respects the current relationships of the Company and the Subsidiaries Group Companies with existing customers, suppliers, suppliers and other persons with which the Company or any Subsidiary Group Companies has significant material business relations; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty relations as of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by date hereof. Without limiting the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any generality of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitationforegoing paragraph, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between from the date of this Agreement until the earlier of the Effective Time and termination of this Agreement pursuant to Article VIII, except as (x) required by applicable Law, or (y) expressly contemplated or permitted by this Agreement, the Appointment TimeCompany shall not and shall not permit any other Group Company to, directly or indirectly, do, do or propose to do, do any of the following without the prior written consent of Parent: (a) amend or otherwise change its Certificate memorandum and articles of Incorporation or By-Laws association or equivalent organizational documents; (b) issue, sell, transfer, lease, sublease, license, pledge, dispose of, grant or encumber, or authorize the issuance, sale, transfer, lease, sublease, license, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any SubsidiaryGroup Company, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any property or assets (whether real, personal or mixed, and including Intellectual Propertyleasehold interests and intangible property) of any Group Company with a value or purchase price (including the Company value of assumed liabilities) in excess of US$100,000, except in the ordinary course of business, or (iii) any Subsidiarymaterial Intellectual Property owned by or licensed to any Group Company, except in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stockshares, property or otherwise, with respect to any of its capital stock, except for shares (other than dividends by or other distributions from any direct or indirect wholly owned Subsidiary of the Company to the Company or any of its other SubsidiarySubsidiaries consistent with past practice); (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except shares or securities or other rights exchangeable into or convertible or exercisable for the repurchase or reacquisition any of securities in connection with the termination of service of any employee, director or consultant of the Company or any Subsidiaryits shares; (e) (i) acquire (includingeffect or commence any liquidation, without limitationdissolution, by scheme of arrangement, merger, consolidation, amalgamation, restructuring, reorganization, public offering or similar transaction involving any Group Company, or create any new Subsidiary, other than the Transactions; (f) acquire, whether by purchase, merger, spin off, consolidation, scheme of arrangement, amalgamation or acquisition of stock or assets or otherwise, any other business combinationassets, securities or properties, in aggregate, with a value or purchase price (including the value of assumed liabilities) in excess of US$250,000 in any transaction or related series of transactions; (g) make any capital contribution or investment in any corporation, partnership, other business organization or any division thereof in excess of US$100,000 in aggregate; (h) incur, assume, alter, amend or acquire modify any material Indebtedness, or guarantee any Indebtedness, or issue any debt securities, except for (i) the incurrence or guarantee of Indebtedness under any Group Company’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 or (ii) not in an aggregate amount in excess of assets US$1,000,000; (i) other than expenditures necessary to maintain assets in good repair consistent with the past practice, authorize, or make any commitment with respect to, any single capital expenditure which is in excess of US$500,000 or capital expenditures which are, in the aggregate, in excess of US$3,000,000 for the Group Companies taken as a whole; (Aj) except as required pursuant to this Agreement, (i) enter into any license new employment or compensatory agreements (including the renewal of Intellectual Property any such agreements), or terminate any such agreements, with any Employee of any Group Company other than the hiring or termination of employees with an aggregate annual compensation of less than US$150,000, (ii) grant or provide any severance or termination payments or benefits to any Employee of any Group Company, (iii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to any Employee of any Group Company and except such increases or payments, in the Subsidiaries that is aggregate, do not material to cause an increase in the business labor costs of the Company and the SubsidiariesGroup Companies, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) incur any indebtedness for borrowed money or issue any debt securities or assumeby more than 1%, guarantee or endorse, or otherwise become responsible for, the obligations of any person, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and consistent with past practice), or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize make any capital expenditure in new equity awards to any manner not reflected in the capital budget Employee of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; any Group Company, (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into amend or amend terminate any collective bargainingCompany Employee Plan, bonus(vi) take any action to accelerate the vesting or payment, profit-sharingof compensation or benefits under the Company Employee Plan, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or (vii) forgive any loans to any Employee of any Group Company; (k) adopt any employee share option plan or other planemployee incentive plan or issue, agreementgrant or announce any options or incentive awards thereunder; (l) make any changes with respect to financial accounting policies or procedures, trustincluding changes affecting the reported consolidated assets, fund, policy liabilities or arrangement for results of operations of the benefit of any director, officer or employeeGroup Companies, except for such amendments as may be necessary required by changes in statutory or desirable to cause any such plan, agreement, trust, fund, policy regulatory accounting rules or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax GAAP or regulatory requirements with respect thereto; (gm) take enter into, amend, modify, consent to the termination of, or waive any actionmaterial rights under, any Material Contract (or any Contract that would be a Material Contract if such Contract had been entered into prior to the date hereof); (n) enter into any Contract between a Group Company or any of its Subsidiaries, on the one hand, and any “related party” (as such term is defined in Item 404 of Regulation S-K promulgated under the Exchange Act) of any Group Company, one the other hand, except for (i) Contracts solely between the Company and/or its wholly-owned Subsidiaries and (ii) Contracts permitted under Section 5.01(j); (o) terminate or cancel, let lapse, or amend or modify in any material respect, other than reasonable and usual actions renewals in the ordinary course of business and consistent with past practicebusiness, with respect to accounting any material insurance policies or proceduresmaintained by it which are not promptly replaced by a comparable amount of insurance coverage; (hp) make commence any material tax election Action for a claim of more than US$1,000,000 (excluding any Action seeking for an injunctive relief or settle other similar equitable remedies) or settle, release, waive or compromise any pending or threatened Action of or against any Group Company (A) for an amount in excess of US$1,000,000, (B) that would impose any material United States federalrestrictions on the business or operations of any Group Company, stateor (C) that is brought by or on behalf of any current, local former or non-United States income tax liabilitypurported holder of any shares or debt securities of any Group Company relating to the Transactions; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Company; (k) commence or settle any material Action; (lq) permit any material item of Company Registered Intellectual Property owned by any Group Company to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes Taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual PropertyProperty owned by any Group Company, or grant or license or transfer to any Third Party any material Intellectual Property owned by any Group Company; (mr) adopt fail to make in a plan timely manner any filings or registrations with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder; (s) enter into, or propose to enter into, any transaction involving any earn-out or similar payment payable by any Group Company, to any Third Party, other than payments in connection with purchases of complete vehicles, plant, equipment, supplies or partial liquidationcomputers in the ordinary course of business; (t) engage in the conduct of any new line of business material to the Company and its Subsidiaries, dissolutiontaken as a whole; (u) make or change any material Tax election, recapitalization amend any Tax Return, enter into any closing agreement or other reorganizationseek any ruling from any Governmental Authority with respect to material Taxes, surrender any right to claim a material refund of Taxes, settle or finally resolve any material controversy with respect to Taxes, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of material Taxes, change any method of Tax accounting or Tax accounting period, initiate any voluntary Tax disclosure to any Governmental Authority, or incur any material amount of Taxes outside of the ordinary course of business; (v) grant any fixed or floating security interests; or (nw) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the Appointment earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1 (the “Interim Period”), except (a) as defined may be required by Law, (b) as may be agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (c) as may be expressly contemplated or permitted pursuant to this Agreement, (d) as set forth in Section 7.03(c))6.1 of the Company Disclosure Letter or (e) as reasonably required to comply with, unless Parent establish or implement COVID-19 Measures: (x) the Company shall, and shall otherwise agree in writingcause its Subsidiaries to, conduct the businesses business of the Company and the Subsidiaries shallits Subsidiaries, except as otherwise expressly contemplated by this Agreementapplicable, be conducted only in, and the Company and the Subsidiaries shall not take any action except in the ordinary course of business and in a manner consistent with past practice; practice in all material respects and the Company shall use its reasonable best efforts to preserve substantially intact its business organization, maintain in effect all material licenses and permits required to carry on its business, maintain in effect any exemptive orders or exemptive relief which it has received from the SEC and which are currently in effect and preserve its material business organization relationships (provided that (1) no action by the Company or its Subsidiaries with respect to any of the Company and matters specifically addressed by any other provisions of this Section 6.1 will be deemed a breach of this clause (x), unless such action would constitute a breach of one or more of such other provisions, (2) the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers, and other persons with which failure by the Company or any Subsidiary has significant business relationsof its Subsidiaries to take any action prohibited by clauses (a) through (m) below will not be deemed to be a breach of this clause (x), and (3) acquisitions and dispositions of investments in Company Portfolio Companies in accordance with the Company’s investment objectives, policies, and restrictions in effect as of the date hereof will not be deemed to be a breach of this clause (x)); provided, however, that and (1y) the Company shall not, and shall not be required permit any of its Subsidiaries to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth (provided that, notwithstanding anything in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracythe contrary, and (2) no failure by none of the Company or its Subsidiaries shall be restricted or encumbered from taking any action, or be required or permitted to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach ofaction, if such restriction, encumbrance, requirement or inaccuracy in, permission would contravene any provision of the representations and warranties Existing Credit Facility or any related loan documents or any provision of the Company set forth in this Agreement if and to Existing Notes or the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent:Existing Notes Indenture): (a) amend or otherwise change its Certificate of Incorporation change, in any material respect, the Company’s Charter or By-Laws the Company’s Bylaws (or such equivalent organizational documentsor governing documents of any of its Subsidiaries); (b) except for transactions solely among the Company and its wholly-owned Subsidiaries, split, combine, reclassify, redeem, repurchase or otherwise acquire or amend the terms of any capital stock or other equity interests or rights; (c) except for transactions solely among the Company and its wholly-owned Subsidiaries, issue, sell, pledge, dispose ofdispose, encumber or grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any (i) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company Company’s or any Subsidiaryits Subsidiaries’ capital stock, or any (ii) options, warrants, convertible securities or other rights of any kind to acquire any shares of the Company’s or units (as applicable) of such its Subsidiaries’ capital stock or other type of (iii) appreciation rights, phantom equity interestsor similar rights with respect to, or any other ownership interest (includingvalued in whole or in part in reference to, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practiceits Subsidiaries; (cd) (i) declare, set aside, authorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to the Company’s or any of its Subsidiaries’ capital stockstock or other equity interests, except for other than (A) dividends and distributions paid by any direct or indirect wholly wholly-owned Subsidiary of the Company to the Company or any other Subsidiary; of its wholly-owned Subsidiaries, (dB) reclassifyregular quarterly cash distributions payable by the Company on a quarterly basis consistent with past practices and the Company’s investment objectives and policies as publicly disclosed (provided that, combinethe Company may only pay a quarterly cash dividend under this subsection (B) if such dividend is less than or equal to 95% of its estimated net investment income for such quarter; provided, splitfurther, subdivide that prior to declaring any such dividend, the Company shall provide Parent with its good faith calculation of estimated net investment income for such quarter, and Parent shall have a reasonable opportunity to review and comment thereon), (C) the payment of the dividends set forth on Section 6.1(d) of the Company Disclosure Letter, (D) the authorization and payment of any dividend or redeemdistribution necessary for the Company to maintain its qualification as a RIC, as reasonably determined by the Company, or purchase (E) a Tax Dividend; or (ii) purchase, redeem or otherwise acquire, directly acquire shares of capital stock or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant other equity interests of the Company or its Subsidiaries (other than any Subsidiarywholly-owned Subsidiaries) or any options, warrants, or rights to acquire any such shares or other equity interests; (e) (i) directly or indirectly acquire (including, without limitation, including by merger, consolidation, consolidation or acquisition of stock or assets or assets), except in respect of any other merger, consolidation, business combination) combination among the Company and its wholly-owned Subsidiaries, any corporation, partnership, limited liability company, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property thereof, except with respect to acquisitions with collective purchase prices not exceeding $2 million in the Company aggregate and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) except for acquisitions of inventory Company Portfolio Company investments in accordance with the Company’s investment objectives, policies and supplies that are consistent with past practice); restrictions; (iif) incur any long-term indebtedness for borrowed money in an amount in excess of $2 million or issue guarantee any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations such indebtedness of any person, or make any loans or advances Person (including loans or advances to any director, officer, employee, agent or consultant other than a wholly-owned Subsidiary) in an amount in excess of the Company or any Subsidiary)$2 million, except for advances indebtedness or guarantees (i) incurred to replace, renew, extend, refinance or refund any existing indebtedness, (ii) for borrowed money incurred pursuant to agreements in effect prior to the execution of business expenses this Agreement, (iii) incurred under letters of credit in the ordinary course of business and consistent with past practice)or (iv) as otherwise required in the ordinary course of business; provided, that the Company may amend the Existing Loan Agreement to extend the maturity date, to the extent necessary or grant appropriate to maintain the Company’s status as a RIC; (g) amend, enter into or terminate any security interest in any of its assets Company Material Contract other than (including Intellectual Propertyi) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the all material respects and (ii) which would not have a Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or proceduresMaterial Adverse Effect; (h) make any material tax election change to its methods of accounting, except as required by GAAP (or settle any interpretation thereof), Regulation S-X of the Exchange Act or compromise a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any material United States federalsimilar organization), state, local or non-United States income tax liabilityas otherwise required by Applicable Law; (i) pay(i) make or change any material Tax election, discharge or satisfy (ii) change any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), material method of Tax accounting other than the payment, discharge or satisfaction, in the ordinary course of business and consistent business, (iii) amend any material Tax Return, (iv) settle or compromise any Tax audit or other proceeding relating to a material amount of Taxes or (v) agree to any extension or waiver of the statute of limitations with past practice, respect to a material amount of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practiceTax; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waiveterminate, modify or consent to the termination of waive any material rights of under the Company or any Subsidiary thereunderInvestment Advisory Agreement; provided, in a manner adverse in any material respect to that the CompanyCompany Investment Advisory Agreement shall be terminated effective upon the Closing; (k) commence or settle enter into a new line of business outside of the Company’s investment objective as described in the Company SEC Documents (provided, that the foregoing shall not apply in any material Actionway to any Company Portfolio Company); (l) permit directly or indirectly sell, lease, license or otherwise subject to any material item Lien or otherwise dispose in whole or in part of any of its properties, assets or rights or any interest therein, except for dispositions of Company Registered Intellectual Property to lapse or to be abandonedPortfolio Company investments in accordance with the Company’s investment objectives, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees policies and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Propertyrestrictions; (m) adopt a plan directly or indirectly (1) acquire (including by merger, consolidation or acquisition of complete stock or partial liquidationassets) any corporation, dissolutionpartnership, recapitalization limited liability company, other business organization or any division or amount of assets thereof or (2) make any equity, debt or other reorganizationinvestment in, either by purchase of stock or securities, contributions to capital, property transfers or purchase of any property or assets of, any other Person (in the case of each of clauses (1) and (2), other than wholly owned Subsidiaries) (the foregoing, “Acquisitions”). Notwithstanding the foregoing, the Company and its Subsidiaries may make the following Acquisitions: (i) acquisitions of new Level 3 assets issued by Company Portfolio Companies (x) with a value, individually or in the aggregate, equal to less than 2.5% of the Company’s net asset value as of September 30, 2020 or (y) as contractually obligated under the Company’s existing investment documents with Company Portfolio Companies (i.e., undrawn commitments); (ii) acquisitions of Level 2 assets with four or more quotes on Bloomberg from different market makers or rated BB- or higher, in each case at a purchase price not to exceed par value and not lower than 95% of par value; (iii) acquisitions of U.S. treasury securities or similar cash-equivalent assets; or (n) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. (a) The Company agrees that, between the date of this Agreement and the Appointment Time (Effective Time, except as defined required by applicable Law or as set forth in Section 7.03(c))5.01 of the Company Disclosure Schedule, unless Parent shall otherwise agree in writingprovide its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed): (i) the businesses of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, Group Companies shall be conducted only in, and the no Group Company and the Subsidiaries shall not take any action except in, a lawfully permitted manner in the ordinary course of business and in a manner consistent with past practice; and and (ii) the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Group Companies, maintain in effect all Material Company and the SubsidiariesPermits, to keep available the services of the current officers, employees key employees, and key consultants and contractors of the Company Group Companies and the Subsidiaries and to preserve the current material relationships and goodwill of the Company Group Companies with Governmental Authorities, key customers and the Subsidiaries with customers, suppliers, and any other persons with which the any Group Company or any Subsidiary has significant material business relations; provided. (b) In furtherance and without limitation of Section 5.01(a), however, that (1except as set forth in Section 5.01(b) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth Disclosure Schedule, or as required by applicable Law or as expressly provided in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracySection 6.14, the Company will not, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, will not permit any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shallits Subsidiaries to, between the date of this Agreement and the Appointment Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld, conditioned or delayed): (ai) amend or otherwise change its Certificate the memorandum and articles of Incorporation or By-Laws association or equivalent organizational documentsdocuments of the Company, or make any material amendments to the memorandum and articles of association or equivalent organizational documents of any other Group Company; (bii) issue, sell, transfer, lease, sublease, license, pledge, dispose of, grant or encumber, or authorize the issuance, sale, transfer, lease, sublease, license, pledge, disposition, grant or encumbrance of, (iA) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any SubsidiaryGroup Company, or any options, warrants, convertible securities or other rights of any kind (including any Company Share Award) to acquire any shares or units (as applicable) of such capital stock or other type of equity interestsshares, or any other ownership interest (including, without limitation, any phantom interest), of any Group Company (other than (x) in connection with the exercise or settlement of any Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Share Awards outstanding on the date hereof in accordance with the applicable Share Incentive Plan and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) applicable award agreement or (iiy) in transactions solely among the Company’s wholly-owned Subsidiaries or between the Company and any of its wholly-owned Subsidiaries), or (B) any material property or assets (whether real, personal or mixed, and including leasehold interests, intangible property and Intellectual Property) of the Company or any SubsidiarySubsidiary (other than (x) sale of such property or assets or non-exclusive licenses, except in each case, in the ordinary course of business and in a manner consistent with past practicepractice or (y) in transactions solely among the Company’s wholly-owned Subsidiaries or between the Company and any of its wholly-owned Subsidiaries); (ciii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stockshares, property or otherwise, with respect to any of its capital stockshares, except for other than dividends by or other distributions from any direct or indirect wholly owned Subsidiary Group Company to the Company or any other Subsidiaryanother Group Company which is wholly-owned by the Company; (div) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stockshares, except or any options, warrants, convertible securities or other rights exchangeable into or convertible or exercisable for the repurchase or reacquisition any of securities its share capital, in each case other than in connection with the termination of service settlement of any employee, director or consultant of Company Share Awards in accordance with the Company or any Subsidiaryapplicable Share Incentive Plans and this Agreement; (ev) (iA) effect or commence any liquidation, dissolution, scheme of arrangement, merger, consolidation, amalgamation, recapitalization, restructuring, reorganization or similar transaction involving any Group Company (other than the Merger or any merger or consolidation among wholly-owned Subsidiaries of the Company), or (B) create any new Subsidiaries; (vi) (A) acquire (including, without limitation, by merger, consolidation, scheme of arrangement, amalgamation or acquisition of stock or assets or any other business combination) or make any capital contribution or investment in any corporation, partnership, other business organization or any division thereof (other than a wholly-owned Subsidiary of the Company), or (B) acquire any material amount of assets (other than (Ax) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) 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, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and consistent with past practicepractice or (y) assets of a wholly-owned Subsidiary of the Company); (vii) (A) incur, assume, alter, amend or modify any Indebtedness, guarantee any Indebtedness, or issue any debt securities, in each case, in excess of US$7,000,000 individually or US$15,000,000 in the aggregate, or (B) make (x) any loans or advances to any director or executive officer of the Company or (y) any loans or advances in excess of US$500,000 individually or US$2,000,000 in the aggregate to any other person, in each case, other than Indebtedness receivable or payable solely between or among the Company’s wholly-owned Subsidiaries (including, for the purposes of this Section 5.01(b)(vii), the Operating Subsidiaries) or between or among the Company and any of its wholly-owned Subsidiaries (including, for the purposes of this Section 5.01(b)(vii), the Operating Subsidiaries); (viii) create or grant any security interest in Lien on any of its material assets (including material Intellectual Property) except in of the ordinary course Company or any Subsidiaries of business and consistent with past practice; (iii) enter into any contract or agreement the Company other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (jix) amend(A) authorize, modify or make any commitment with respect to, any single capital expenditure which is in excess of US$3,000,000, unless included in the Company’s current budget and operating plan approved by the Company Board, or (B) authorize or make any commitment with respect to capital expenditures which are, in the aggregate (including capital expenditures included in the Company’s budget and operating plan), in excess of US$20,000,000 for the Group Companies taken as a whole, in each case other than ordinary course expenditures necessary to maintain existing assets in good repair; or (x) guarantee the performance or other obligations of any person (other than guarantees in connection with any Indebtedness as permitted by the foregoing clause (vii)); (xi) except as otherwise required by Law or pursuant to any Company Employee Plan in existence as of the date hereof, (A) enter into any new employment or compensatory agreements in connection with employment or service (including the renewal of any such agreements), or terminate or amend any such agreements, with any director or officer of any Group Company or any other employee or individual service provider of any Group Company who has an annual base salary in excess of US$100,000, (B) grant or provide any severance or termination payments or benefits to any director, officer, employee or individual service provider of any Group Company, (C) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or grant, issue or make any new equity awards to any director, officer, employee or individual service provider of any Group Company, except annual base salary increases to non-officer employees of any Group Company made in the ordinary course consistent with past practice, (D) establish, adopt, amend or terminate any Company Employee Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Employee Plan if it were in existence as of the date of this Agreement or amend the terms of any outstanding Company Share Awards, (E) take any action to accelerate or otherwise alter the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under the Company Employee Plan, to the extent not already required in any such plan, including voluntarily accelerating the vesting of any Company Share Award in connection with the Merger, or (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Employee 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; (xii) make any material changes with respect to any method of financial accounting, or financial accounting policies or procedures, except as required by changes in GAAP or applicable Law; (xiii) enter into, or materially amend or modify, or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of (or any Contract that would be a Material ContractContract if such Contract had been entered into prior to the date hereof), or amend, waive, modify or consent to the termination of the Company’s or any Subsidiary’s material rights of the Company or any Subsidiary thereunder, in a manner adverse or fail to comply with or breach in any material respect to the CompanyInvestment Documents; (kxiv) enter into any Contract between any of the Group Companies, on the one hand, and any of their respective directors or officers, on the other hand, in each case required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (except as permitted under Section 5.01(b)(xi)); (xv) terminate or cancel, let lapse, or amend or modify in any material respect, other than renewals in the ordinary course of business, any material insurance policies maintained by it which is not promptly replaced by a comparable amount of insurance coverage with reputable independent insurance companies or underwriters; (xvi) commence any material Action (other than in respect of collection of amounts owed in the ordinary course of business) or settle any material ActionAction other than any settlement involving only the payment of monetary damages not in excess of US$1,000,000 not relating to this Agreement or the Transactions; (lxvii) engage in the conduct of any new line of business material to the Group Companies, taken as a whole; (xviii) permit any material item of Company Registered material Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, other than (i) with respect to such Intellectual Property that is no longer used or useful in any of the Company’s or its Subsidiaries’ respective businesses and (ii) as required pursuant to Contracts in effect prior to the date hereof which have been provided or otherwise made available to Parent, fail to perform or make any applicable filings, recordings or other similar actions or filingsfilings with respect to material Intellectual Property, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (mxix) adopt fail to make in a plan timely manner any filings or registrations with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder; (xx) make or change any material Tax election, amend any material Tax Return, enter into any material closing agreement with respect to Taxes, surrender any right to claim a material refund of complete Taxes, settle or partial liquidationfinally resolve any material controversy with respect to Taxes, dissolutionconsent to any extension or waiver of the statute of limitations applicable to any Tax claim or assessment relating to the Group Companies, recapitalization or other reorganizationchange any method of Tax accounting; or (nxxi) announce an intentionauthorize or agree to take any of the foregoing actions, or enter into any formal letter of intent (binding or informal nonbinding) or similar written agreement or otherwise make a commitment, arrangement with respect to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company agrees that, between the date of this Agreement and the Appointment Time (earlier of the termination of this Agreement pursuant to Section 9.01 hereof or the Effective Time, except as defined set forth in Section 7.03(c))6.01 of the Disclosure Schedule, unless Parent shall otherwise agree in writing, the businesses of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in in, the ordinary course of business and in a manner consistent with past practice; and the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers, suppliers and other persons with which the Company or any Subsidiary has significant business relations; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure LetterSchedule, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment earlier of the termination of this Agreement pursuant to Section 9.01 hereof or the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) amend or otherwise change its Certificate of Incorporation or By-Laws laws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant or grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interestsstock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 3,841,026 Shares issuable pursuant to Company Stock Options and Company Stock Awards options outstanding on the date hereof and under the grant of a maximum of 71,310 Company Stock Awards Option Plans and Company Stock Options 801,497 Shares issuable pursuant to new hires) the Warrants, or rights to purchase Shares pursuant to the ESPP in each case as set forth in Section 4.03 of the Disclosure Schedule), or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any direct or indirect wholly owned Subsidiary to the Company or any other Subsidiary; (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant of the Company or any Subsidiary; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice)assets; (ii) 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, or make any loans or advances (including loans or except for the extension of advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses employees in the ordinary course of business and consistent with past practice), or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course of business and consistent with past practiceassets; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize authorize, or make any commitment with respect to, any single capital expenditure which is in any manner not reflected excess of $50,000 or capital expenditures which are, in the capital budget aggregate, in excess of $250,000 for the Company attached and the Subsidiaries taken as Section 6.01(e)(iv) of the Disclosure Lettera whole; (v) renew make or enter into direct to be made any noncompete, exclusivity capital investments or similar agreement that would restrict or limit, equity investments in any material respectentity, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, other than a wholly owned Subsidiary; or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or Intentionally deleted. (g) increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives salaries or benefits wages of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or hire any new officer, or hire any new employee other than employees hired in the ordinary course of business and consistent with past practice, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; employee (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or proceduresunless required by law); (h) change any accounting methods used by it unless required by GAAP; (i) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (ij) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, (A) in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 2000 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice, (B) of any liabilities under the existing employment or executive bonus agreements of the Company set forth in Section 4.10(a) of the Disclosure Schedule, and (C) of fees and expenses in connection with the transition of control of the Company's business to Parent and Purchaser; (jk) pay or delay the payment of accounts payable or accelerate the collection of accounts receivable, in either case outside of the ordinary course of business and consistent with past practice other than the payment of fees and expenses in connection with the transition of control of the Company's business to Parent or Purchaser; (l) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company Company's or any Subsidiary Subsidiary's rights thereunder, other than in a manner adverse in any material respect to the Companyordinary course of business and consistent with past practice; (km) commence or settle any material ActionAction other than, with the prior written consent of Parent (which consent shall not be unreasonably withheld or delayed) the Actions set forth in Section 4.09 of the Disclosure Schedule; (ln) permit amend or modify any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Propertythe Amended Employment Agreements; (mo) adopt a plan accelerate the vesting or exercisability of complete or partial liquidationany Options, dissolution, recapitalization or other reorganizationthan as and to the extent expressly set forth in Section 4.03 of the Disclosure Schedule; or (np) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the Appointment Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (i) as defined required by applicable Law, (ii) as agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (iii) as may be expressly required or contemplated pursuant to this Agreement or (iv) as set forth in Section 7.03(c)), unless Parent shall otherwise agree in writing6.1 of the Company Disclosure Letter, the businesses business of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, its subsidiaries shall be conducted only in, and the Company and the Subsidiaries such entities shall not take any action except in the ordinary course of business and in a manner consistent with past practice; and the Company and its subsidiaries shall use its their commercially reasonable best efforts to preserve substantially intact the Company’s business organization of the Company and the Subsidiariesorganization, to keep available the services of the their current officers, key employees and consultants of the Company and the Subsidiaries key consultants, and to preserve the current relationships of the Company maintain existing relations and the Subsidiaries goodwill with Governmental Authorities, material customers, material suppliers, material creditors and other persons with which the Company or any Subsidiary has significant business relationsmaterial lessors; provided, however, that no action by the Company or its subsidiaries with respect to matters specifically addressed by any provision of this Section 6.1 shall be deemed a breach of this sentence unless such action would constitute a breach of such specific provision. Furthermore, the Company agrees with Parent that, except (1) as required by applicable Law, (2) as agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (3) as may be expressly required or contemplated pursuant to this Agreement or (4) as set forth in Section 6.1 of the Company Disclosure Letter, the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parentnot: (a) amend or otherwise change change, or permit any of its subsidiaries to amend of otherwise change, the Restated Certificate of Incorporation or By-Laws laws of the Company or equivalent such similar applicable organizational documentsdocuments of any of its subsidiaries; (b) split, combine, subdivide, reclassify, purchase, redeem or otherwise acquire, issue, sell, pledge, dispose ofdispose, encumber or grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of its or units (if applicable) of any class of its subsidiaries’ capital stock or other type of equity interests of the Company or any Subsidiarystock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of its or units (as applicable) its subsidiaries’ capital stock, except for any such transaction by a wholly owned subsidiary which remains a wholly owned subsidiary after consummation of such capital stock or other type of equity intereststransaction; provided, or any other ownership interest however that (including, without limitation, any phantom interest), of i) the Company or may issue shares upon exercise of any Subsidiary (except for the issuance Company Option outstanding as of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiarymay acquire shares of capital stock in connection with tax withholdings and exercise price settlements upon the exercise of Company Options and vesting of Unvested Restricted Shares, except in each case, existing on the ordinary course of business and in a manner consistent with past practicedate hereof; (c) declare, set asideauthorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to the Company’s or any of its subsidiaries’ capital stock, except for other than (i) dividends paid by any direct or indirect wholly owned Subsidiary subsidiary of the Company to the Company or any other Subsidiarywholly owned subsidiary of the Company and (ii) the Company quarterly dividend of $0.31 per share, payable on or about January 15, 2014 to the holders of record of Common Stock as of December 31, 2013; (d) reclassifyexcept as required pursuant to any Company Benefit Plan in effect as of the date hereof or as required by applicable Law, combine(i) increase the compensation or other benefits payable or to become payable to directors, splitexecutive officers, subdivide employees or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant independent contractors of the Company or any Subsidiary; (e) (i) acquire (includingof its subsidiaries, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) 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, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and consistent with past practice), or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, with any director, officer executive officer, employee or independent contractor of the Company or any of its subsidiaries, other than payments of severance benefits pursuant to any Company Benefit Plan in effect as of the date hereof in the ordinary course of business consistent with past practice, (iii) enter into any employment, severance, retention or change of control agreement with any employee of the Company or any of any Subsidiaryits subsidiaries (except for employment agreements on customary terms that are terminable on less than thirty (30) days’ notice without payment of severance benefits or penalty or similar payments), or (iv) establish, adopt, enter into into, amend or amend terminate any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance Company Benefit Plan or other plan, agreement, trust, fund, policy policy, agreement or arrangement for the benefit of any directorcurrent or former directors, officer officers, employees or employeeindependent contractors or any of their beneficiaries, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practicepractice that do not (A) in any manner increase the cost to the Company or its subsidiaries or (B) obligate the Company or its subsidiaries beyond December 31, with respect 2014, (v) take any action to accounting policies fund the payment of compensation or proceduresbenefits under any Company Benefit Plan, (vi) adopt, enter into, amend or terminate any collective bargaining agreement or other arrangement relating to union or organized employees, (vii) terminate the employment of any executive officer of the Company, other than for cause, or (viii) hire any employee having total annual compensation in excess of $250,000; (he) make grant, confer or award options, convertible securities, restricted stock, restricted stock units or other rights to acquire any material tax election of its or settle its subsidiaries’ capital stock or compromise take any material United States federal, state, local action not otherwise contemplated by this Agreement to accelerate the vesting of or noncause to be exercisable any otherwise unvested or unexercisable option or other equity or equity-United States income tax liabilitybased award (except as otherwise provided by the terms of any unexercisable options or other equity awards outstanding on the date hereof); (if) payacquire or permit its subsidiaries to acquire (including by merger, discharge consolidation, or satisfy acquisition of stock or assets) any claimentity, liability business or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than material portion of the payment, discharge or satisfaction, assets of any person except for inventory in the ordinary course of business and consistent with past practicepractices; (g) create, incur, guarantee or assume (or permit its subsidiaries to create, incur, guarantee or assume) any indebtedness of liabilities reflected or reserved against any person constituting “Debt” as defined in the 2007 Balance Sheet Notes Indenture, except for indebtedness consisting of intercompany loans and guarantees of indebtedness for borrowed money incurred in compliance with this Section 6.1(g); (h) terminate, modify or subsequently incurred amend any Company Material Contract or Company Lease other than the expiration or renewal of any Company Material Contract or Company Lease in accordance with its terms, or enter into any contract, agreement, or arrangement that would have been a Company Material Contract or Company Lease if entered into prior to the date hereof; (i) make any material change to its methods of accounting in effect at December 31, 2012, except (i) as required by GAAP (or any interpretation thereof), Regulation S-X of the Exchange Act or a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization), or (ii) as required by a change in applicable Law; (j) except for transactions among the Company and its wholly owned subsidiaries or among the Company’s wholly owned subsidiaries, sell, lease, license, transfer, exchange or swap, mortgage or otherwise encumber or subject to any Lien (other than Permitted Liens) or otherwise dispose of any material portion of its properties or assets, other than in the ordinary course of business and consistent with past practice; (jk) amendmake any loans, modify advances or consent capital contributions to the termination or investments in any other person (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of other than the Company or any Subsidiary thereunder, wholly owned subsidiary of the Company in a manner adverse the ordinary course of business consistent with past practice and other than employee expense advancements in any material respect to accordance with Company policies existing as of the Company; (kdate hereof and in the ordinary course of business consistent with past practice) commence or settle any material Actionin excess of $1,000,000 in the aggregate; (l) permit except to the extent otherwise required by applicable Law, make or change any material item Tax election, change any method of Company Registered Intellectual Property to lapse or to be abandonedTax accounting, dedicatedfile any material amended Tax Return, or disclaimed, fail settle or compromise any audit or proceeding relating to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every a material item amount of Company Registered Intellectual PropertyTaxes; (m) make or agree to make, or permit any of its subsidiaries to make or agree to make, capital expenditures totaling in the aggregate more than $5,000,000; (n) adopt or enter into, or permit to be adopted or entered into, a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganizationreorganization of the Company or any of its subsidiaries; (o) release, withdraw, concur with the dismissal of, or settle any claim, action, suit or proceeding by the Company or any of its subsidiaries, other than routine, immaterial matters in the ordinary course of business; (p) settle, pay, discharge or satisfy any claim, action, suit, proceeding or investigation against or regarding the Company or any of its subsidiaries, whether civil, criminal, administrative or investigative, other than settlements that involve only the payment of monetary damages not in excess of $250,000 individually or $750,000 in the aggregate, (excluding from such dollar thresholds amounts covered by any insurance policy of the Company or any of its subsidiaries); (q) take, or omit to take (or permit any of its subsidiaries to take, or omit to take), any action which would reasonably be expected to cause a default or event of default under the Notes; or (nr) announce an intentionauthorize or enter into, or permit any of its subsidiaries to authorize or enter into into, any formal or informal written agreement or otherwise make a commitment, any commitment to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the Appointment earliest to occur of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (i) as defined may be required by Law, (ii) as may be agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned, and with respect to Contracts referenced in Section 7.03(c)6.1(i)(A) only, shall be deemed given if Parent has not responded to the Company’s request for such consent within five (5) Business Days), unless Parent shall otherwise agree (iii) as may be permitted or required pursuant to this Agreement, or (iv) as set forth in writing, the businesses Section 6.1 of the Company and Disclosure Letter, (x) the Subsidiaries Company shall, except as otherwise expressly contemplated by this Agreementand shall cause each of its Subsidiaries to, be conducted only in, and the Company and the Subsidiaries shall not take any action except carry on its business in all material respects in the ordinary course of business and in a manner consistent with past practice; , and the Company shall and shall cause its Subsidiaries to use its commercially reasonable best efforts to preserve substantially intact the their respective business organization of the Company organizations, preserve their respective assets (including, without limitation, Intellectual Property Rights), rights and the Subsidiariesproperties in good repair and condition, to keep available the services of the their respective current officers, employees and consultants of the Company and the Subsidiaries preserve their respective goodwill and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers, licensors, licensees, distributors and other persons others having business dealings with which the Company or any Subsidiary has significant business relationseach of them; provided, however, that no action by the Company or its Subsidiaries with respect to matters specifically addressed by any provision of this Section 6.1 shall be deemed a breach of clause (1x) unless such action would constitute a breach of such specific provision; and (y) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent and shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, not permit any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parentits Subsidiaries to: (a) amend or otherwise change its Certificate of Incorporation or By-Laws or the Charter or, in any material respect, the Bylaws (or, in any material respect, such equivalent organizational documentsor governing documents of any of the Subsidiaries of the Company); (b) except for transactions among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, issue, sell, pledge, dispose ofdispose, encumber or grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any Subsidiaryof its Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any such shares or units (as applicable) of such capital stock or other type of equity interestsstock; provided, or any other ownership interest (including, without limitation, any phantom interest), of however that the Company may issue shares upon the exercise of any Company Option or the vesting of any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) Restricted Share Unit or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practicePerformance Unit; (c) (i) declare, set asideauthorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to the Company’s or any of its Subsidiaries’ capital stock, except for other than dividends paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or any wholly owned Subsidiary of the Company; (ii) split, combine or reclassify or amend the terms of any shares of capital stock or other Subsidiaryequity interests of the Company or any of its Subsidiaries; or (iii) redeem, purchase or otherwise acquire any shares of the Company’s capital stock or other securities except for repurchase of Company Common Stock of an employee prior to the lapse of any vesting period upon termination of such employee’s employment or any other repurchases, in each case, to the extent required by any Company Plan; (d) reclassify, combine, split, subdivide except as and to the extent required pursuant to existing written agreements or redeemCompany Benefit Plans or Foreign Benefit Plans in effect as of the date of this Agreement, or purchase written agreements for newly hired employees entered into in the ordinary course of business, or as otherwise acquirerequired by Law, directly (i) increase the compensation or indirectly, any of its capital stock, except for the repurchase other benefits payable or reacquisition of securities in connection with the termination of service of any employee, director or consultant to become payable to employees of the Company or any Subsidiary; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the its Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) 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, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and consistent with past practice), or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for merit increases in the ordinary course of business and consistent with past practice in salaries(including, wagesfor this purpose, the normal salary and bonus compensation review process conducted each year and the award and payment of customary annual bonuses), incentives (ii) increase the compensation or other benefits of employees payable or to become payable to directors or executive officers of the Company or any Subsidiary who are not directors or officers of its Subsidiaries, except for merit increases and annual incentive bonuses in the Companyordinary course of business consistent with past practice, or (iii) grant any severance or termination pay to, or enter into any employment or severance agreement with, any directoremployee, director or executive officer or other employee of the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice, (iv) enter into any Subsidiaryemployment agreement (other than offer letters to new hires in the United States or customary employment agreements for internationally located new hires in the ordinary course of business) with any employee or executive officer of the Company (except (x) to the extent necessary to replace a departing employee who is not an executive officer and who receives compensation and benefits consistent with that provided to the departing employee, (y) for employment agreements terminable on less than thirty (30) days’ notice without penalty or in accordance with applicable Law, and (z) for extension of employment agreements in the ordinary course of business consistent with past practice), (v) 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 directorcurrent or former directors, officer officers or employeeemployees or any of their beneficiaries, except for such amendments except, in each case, as may be necessary or desirable would not result in a material increase to cause any the Company in the cost of maintaining such plan, agreement, trust, fund, policy or arrangement arrangement, or (vi) forgive any loans or issue any loans to comply with Section 409A directors, officers, or employees of the Code so Company or any of its Subsidiaries; (e) grant, confer or award, or accelerate the vesting or settlement of, options, convertible securities, restricted stock, restricted stock units or other rights to acquire any capital stock of the Company or any of its Subsidiaries or take any action not otherwise contemplated by this Agreement to cause to be exercisable any otherwise unexercisable option under any existing stock plan (except as to avoid otherwise provided by the imposition terms of additional tax any unexercisable options or other equity awards outstanding on the date of this Agreement; (f) acquire (including by merger, consolidation, or acquisition of stock or assets) any ownership interests in any corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof, except with respect theretoto (i) acquisitions of majority interests in any corporation, partnership, limited liability company, other business organization or of any division or material amount of assets with collective purchase prices not exceeding $5,000,000 in the aggregate and (ii) any merger, consolidation, business combination among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries; (g) take dispose of, transfer, lease, license, mortgage, pledge or encumber any actionmaterial assets (other than Intellectual Property Rights, which are covered in Section 6.1(n) below) of the Company and its Subsidiaries, taken as a whole, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect practice or pursuant to accounting policies or proceduresexisting Contracts; (h) make incur any material tax election long-term indebtedness for borrowed money or settle or compromise guarantee any material United States federal, state, local or non-United States income tax liability; such indebtedness for any Person except for indebtedness (i) payincurred under the Company’s existing credit facilities (including revolving credit facilities) or incurred to replace, discharge renew, extend, refinance or satisfy refund any claimexisting indebtedness, liability or obligation (absoluteii) for borrowed money incurred pursuant to agreements in effect prior to the execution of this Agreement, accrued(iii) incurred under letters of credit in the ordinary course of business, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, (iv) as otherwise required in the ordinary course of business and consistent with past practicepractice in all material respects or (v) among the Company and any of its wholly owned Subsidiaries or among any of such Subsidiaries; provided, of liabilities reflected or reserved against that any indebtedness incurred under clauses (i) through (iii) above shall not, at any time outstanding, exceed, in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practiceaggregate, $20,000,000; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Company; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization; or (n) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company agrees that, between the date of this Agreement and the Appointment Time (Effective Time, except as defined expressly contemplated by this Agreement, as set forth in Section 7.03(c)), unless Parent shall 5.01 of the Company Disclosure Schedule or otherwise agree consented to in writingwriting by Parent, the businesses of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in in, the ordinary course of business and in a manner consistent with past practice; practice and in compliance in all material respects with applicable Law, and the Company shall, and shall cause each of the Subsidiaries to, use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, to keep available preserve the services of the current officers, employees assets and consultants properties of the Company and the Subsidiaries in good repair and to preserve condition, in each case in the current relationships ordinary course of the Company business and the Subsidiaries in a manner consistent with customers, suppliers, and other persons with which the Company or any Subsidiary has significant business relations; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01past practice. By way of amplification and not limitation, except as expressly contemplated by any other provision of this Agreement and or as set forth in Section 6.01 5.01 of the Company Disclosure LetterSchedule, the Company agrees that neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent:, which shall respond to a request for consent promptly but not later than five (5) days after receipt of a request, (provided, however, that with respect to Sections 5.01(h) pertaining to settlements or compromises, 5.01(i), 5.01(j), 5.01(k) and 5.01(l) such written consent shall not be unreasonably withheld): (a) amend or otherwise change its Certificate Articles of Incorporation Incorporation, Bylaws or By-Laws or equivalent other similar organizational documents; (b) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except assets (other than Leased Properties) that are not material in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends or other distributions by any Subsidiary only to the Company or any direct or indirect wholly owned Subsidiary to the Company or any other Subsidiary; (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant stock of the Company or any Subsidiary; (e) (i) acquire (including, without limitation, including by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization (or any division thereof thereof) or acquire any material amount of property or asset, except assets (other than (Aincluding assets or accounts from suppliers, vendors or dealers) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) 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, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and in a manner consistent with past practice); (ii) authorize, or grant make any security interest in commitment with respect to, any of its assets (including Intellectual Property) except capital expenditure, other than maintenance expenditures at existing Leased Properties in the ordinary course of business and consistent with past practice; (iii) enter into any contract new line of business; or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure make investments in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e)persons other than existing Subsidiaries; (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or (i) increase the compensation payable or to become payable or the benefits provided to its current or former directors, officers or employees, except for increases in compensation for employees in the ordinary course of business and in a manner consistent with past practice practice, except for the payment of bonuses to employees relating to bonus, incentive plans or employment agreements as in salarieseffect on the date hereof, wagescopies of which have been previously provided to Parent, bonusesand except for the renewal of such bonus or incentive plans in the ordinary course of business consistent with past practices if such plans can be terminated without penalty at the Effective Time (other than for the payment of incentive compensation or bonus compensation earned as of the time of such termination); provided, incentives however, in no event shall bonuses of stock, stock options, stock appreciation rights or benefits any items whose value is tied to the stock price of employees the Company be awarded pursuant to such plans; (ii) grant any retention, severance or termination pay (other than pursuant to the severance policy of the Company or any Subsidiary who its Subsidiaries as in effect on the date hereof, copies of which are not directors or officers set forth in Section 5.01(f) of the Company, or grant any severance or termination pay Company Disclosure Schedule) to, or enter into any employment employment, bonus, change of control or severance agreement with, any current or former director, officer or other employee of the Company or of any Subsidiary, or ; (iii) establish, adopt, enter into into, terminate or amend any collective bargainingPlan or establish, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance adopt or other enter into any plan, agreement, program, policy, trust, fund, policy fund or other arrangement that would be a Plan if it were in existence as of the date of this Agreement for the benefit of any director, officer or employeeemployee except as required by Law; or (iv) loan or advance any money or other property to any current or former director, except for such amendments as may be necessary officer or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A employee of the Code so as to avoid Company or the imposition of additional tax with respect theretoSubsidiaries; (g) take make any actionchange (or file for such change) in any method of Tax accounting; (h) make, change or rescind any material Tax election, file any amended Tax Return, except as described in Section 3.13(a) and as required by applicable Law, enter into any closing agreement relating to Taxes, waive or extend the statute of limitations in respect of Taxes (other than reasonable and usual actions pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (hbusiness) make any material tax election or settle or compromise any material United States federal, statestate or local income Tax liability, local audit, claim or non-United States income tax liabilityassessment, or surrender any right to claim for a Tax Refund; (i) pay, discharge discharge, waive, settle or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)that is not an Action, other than the payment, discharge discharge, waiver, settlement or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (j) waive, release, assign, settle or compromise any pending or threatened Action; (k) other than in the ordinary course of business and in a manner consistent with past practice, (i) enter into, amend, modify or consent to the termination of (which for the avoidance of doubt shall not include the expiration of any Material Contract other than a termination in accordance with its terms) of any Material Contract, or (ii) amend, waive, modify or consent to the termination of (other than a termination in accordance with its terms) the Company’s or any material Subsidiary’s rights of thereunder; A-18 provided, however, in no event shall the management services agreement between the Company and RPC Financial Advisors, LLC be amended or any Subsidiary thereundermodified, even if such amendment or modification is in a manner adverse in any material respect to the Company; (k) commence or settle any material Actionordinary course of business and consistent with past practice; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filingsexpenditure in connection with any advertising or marketing, recordings or other similar actions or filings, or fail to pay all required fees than in the ordinary course of business and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Propertya manner consistent with past practice; (m) adopt fail to maintain in full force and effect the existing insurance policies covering the Company and the Subsidiaries and their respective properties, assets and businesses; (n) enter into, amend, modify or consent to the termination of any Contract that would be a plan Material Contract or transaction that would be required to be set forth in Section 3.15(a) of complete the Company Disclosure Schedule if in effect on the date of this Agreement; (o) effectuate a “plant closing” or partial liquidation“mass layoff”, dissolutionas those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988; (p) repurchase, recapitalization repay or incur any Indebtedness (other reorganizationthan in connection with the lease of new vehicles or letters of credit in the ordinary course of business), or issue any debt securities or assume or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, or grant any security interest in any of its assets, except for repayments of Indebtedness, in amounts and at times determined by the Company in its discretion, under that certain Credit Agreement dated as of June 7, 2005, as amended, among the Company and Wachovia Bank, National Association (the “Credit Agreement”), and except in the ordinary course of business and consistent with past practice; (q) file any insurance claim except in the ordinary course of business and consistent with past practice; or (nr) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between during the period from the date of this Agreement until the earlier of the Effective Time and the Appointment Time (as defined termination of this Agreement in Section 7.03(c))accordance with its terms, unless Parent shall otherwise agree consent in writingwriting or except as expressly permitted or required pursuant to this Agreement: (a) The Company and the Company Subsidiaries shall (i) conduct their business only in the ordinary and usual course of business and consistent with past practices, and (ii) use reasonable best efforts (consistent with the businesses Company’s past practices from May 5, 2009 to the date of this Agreement) to maintain and preserve intact their respective business organizations, to maintain their significant beneficial business relationships with suppliers, contractors, distributors, customers, licensors, licensees and others having material business relationships with them, to retain the services of their present officers and key employees and to comply in all material respects with all applicable Laws and the requirements of all Contracts that are material to the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, be conducted only in, and the Company and the Subsidiaries shall not take any action except in the ordinary course of business and in a manner consistent with past practice; and the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Subsidiaries, taken as a whole, in each case, to keep available the services of end that their goodwill and ongoing business shall be materially unimpaired at the current officers, employees and consultants of the Company and the Subsidiaries and to preserve the current relationships of the Company and the Subsidiaries with customers, suppliers, and other persons with which the Company or any Subsidiary has significant business relationsEffective Time; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty failure of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this requiring the consent of Parent under Section 6.01 shall be deemed to constitute a breach of6.1(b), or inaccuracy in, any of the representations and warranties of after the Company set forth in this Agreement if and to the extent that Parent shall has requested Parent’s consent in writing to such failure action pursuant to this Section 6.01. By way 6.1 and Parent has failed to consent within five Business Days of amplification and such request, shall not limitationconstitute a breach by the Company of this Section 6.1(a). (b) Without limiting the generality of the foregoing Section 6.1(a), except as expressly contemplated by this Agreement Section 3.4 and Section 6.01 of the Disclosure Letter3.5 or otherwise hereby, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, shall not directly or indirectly, doand shall not permit any of the Company Subsidiaries to, or propose to do, do any of the following without the prior written consent of Parent: (ai) amend or otherwise change its Certificate of Incorporation or By-Laws or equivalent organizational documents; (bA) issueacquire, sell, pledgelease, transfer, encumber or permit to be subject to any Lien or dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of any class assets, rights or securities that are material to the Company and the Company Subsidiaries, taken as a whole, except for the sale or transfer of capital stock or other type of equity interests inventory of the Company or any Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except Subsidiaries in the ordinary course of business and business, or (B) terminate, cancel or materially modify in a manner adverse to the Company and the Company Subsidiaries, taken as a whole, any Material Contract (other than extensions of existing credit facilities on terms reasonably consistent with past practiceprior extensions) or enter into any Contract that would have been a Material Contract if entered into prior to the date hereof; (cii) acquire by merging or consolidating with or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business, corporation, partnership, joint venture, association or other business organization or division thereof; (iii) amend or propose to amend the Company Charter Documents or the Subsidiary Documents, except as may be required in connection with the consummation of the Transactions; (iv) declare, set aside, make or pay any dividend or other distribution, distribution payable in cash, capital stock, property or otherwise, otherwise with respect to any shares of its capital stock; (v) 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, except for dividends pursuant to the terms of such options, warrants or other rights (including the Convertible Notes) that are outstanding as of the date hereof; (vi) adjust, recapitalize, split, combine, subdivide or reclassify any outstanding shares of its capital stock; (vii) issue, sell, encumber, dispose of or authorize, propose or agree to the issuance, sale, encumbrance or disposition by any direct or indirect wholly owned Subsidiary to the Company or any of the Company Subsidiaries of, any shares of, or any options, warrants, convertible notes or other Subsidiaryrights of any kind to acquire any shares of, or any securities convertible into or exchangeable for any shares of, its capital stock of any class, or any other securities in respect of, in lieu of, or in substitution for any class of its capital stock outstanding on the date hereof, except pursuant to the terms of any options, warrants or rights of any kind to acquire any shares of, or any securities convertible into or exchangeable for any shares of, its capital stock that are outstanding as of the date hereof; (dviii) reclassify, combine, split, subdivide or redeemincur, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities modify in connection with the termination of service of any employee, director or consultant of the Company or any Subsidiary; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property to respect the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiariesterms of, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) incur any indebtedness for borrowed money or issue any debt securities money, or assume, guarantee or endorseendorse any such indebtedness of another Person, except for any incurrence, assumption, guarantee or otherwise become responsible for, endorsement of indebtedness in the obligations ordinary course of business pursuant to any person, or credit facility of the Company existing on the date hereof; (ix) make any loans or advances (including loans advances, except to or advances for the benefit of the Company Subsidiaries or to any director, officer, employee, agent or consultant employees of the Company or any Subsidiary), except the Company Subsidiaries for advances of business expenses in the ordinary course of business and consistent not to exceed $5,000 in the aggregate with past practicerespect to any individual employee; (x) other than to the extent required by a Company Employee Benefit Plan or in a written contract or agreement in existence as of the date of this Agreement and disclosed in Section 4.10 of the Company Disclosure Letter or as required by applicable Law: (A) grant any awards under any Company Employee Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock or the removal of existing restrictions in any Company Employee Benefit Plan or awards made thereunder), (B) grant or grant increase any security interest severance or termination pay to any current or former director, executive officer, employee, consultant or independent contractor of the Company or any Company Subsidiary, (C) execute any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any such individual, except for (1) standard offer letters offering at-will employment and (2) employment agreements in the Company’s customary form and providing for compensation not exceeding the equivalent of $100,000 annually with employees outside the United States, in each case in the ordinary course of business, (D) increase the benefits payable under any existing severance or termination pay policies or employment agreements, (E) hire any officers (or promote an employee into an officer position) or increase the compensation, bonus or other benefits of current or former directors, executive officers, employees, consultants or independent contractors of the Company or any Company Subsidiary, (F) adopt or establish any plan, policy, program or arrangement that would be considered a Company Employee Benefit Plan if such plan, policy, program or arrangement were in effect as of the date of this Agreement, or amend in any material respect any existing Company Employee Benefit Plan, except for (1) standard offer letters offering at-will employment and (2) employment agreements in the Company’s customary form and providing for compensation not exceeding the equivalent of its assets $100,000 annually with employees outside the United States, in each case in the ordinary course of business, (including Intellectual PropertyG) provide any material financial benefit to a current or former director, executive officer, employee, consultant or independent contractor of the Company or any Company Subsidiary not required by any existing agreement or Company Employee Benefit Plan, except for compensation or other benefits provided to newly hired employees or newly retained consultants in the ordinary course of business, or (H) take any action to accelerate the vesting or payment of any compensation or benefit under any Company Employee Benefit Plan or to fund or in any other way secure the payment of compensation or benefits under any Company Employee Benefit Plan or make any material determinations not in the ordinary course of business and consistent with past practice; under any Company Employee Benefit Plan; (iiixi) enter into any contract execute or agreement amend (other than as required by existing employee benefit plans or employment agreements or by applicable Law) in any material respect any employment, consulting, severance, termination or indemnification agreement between the Company or any of the Company Subsidiaries and any of their respective directors, officers, agents, consultants, independent contractors or employees, except for (1) standard offer letters offering at-will employment and (2) employment agreements in the Company’s customary form and providing for compensation not exceeding the equivalent of $100,000 annually with employees outside the United States, in each case in the ordinary course of business and consistent with past practice; (iv) authorize business, or any capital expenditure in collective bargaining agreement or other obligation to any manner not reflected in labor organization or employee incurred or entered into by the capital budget Company or any of the Company attached Subsidiaries; (xii) make any changes in its reporting for Taxes or accounting methods other than as Section 6.01(e)(iv) of the Disclosure Letterrequired by GAAP or applicable Law; (v) renew make or rescind any Tax election; file any amended Tax Return with respect to any material Tax; make any change to its method or reporting income, deductions, or other Tax items for Tax purposes; settle or compromise any Tax liability or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement transaction with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in an Affiliate outside the ordinary course of business and consistent with past practice, or increase the compensation payable or if such transaction would give rise to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any a material tax election or settle or compromise any material United States federal, state, local or non-United States income tax Tax liability; (ixiii) paysettle, compromise or otherwise resolve any litigation or other legal proceedings material to the Company and the Company Subsidiaries taken as a whole or as would result in any liability in excess of the amount reserved therefor or reflected on the balance sheets included in the Company Financial Statements; (xiv) pay or discharge any claims, Liens or satisfy any claim, liability liabilities which are not reserved for or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)reflected on the balance sheets included in the Company Financial Statements, other than the paymentany claims, discharge Liens or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected that are reserved for or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practiceafter the Balance Sheet Date; (j) amend, modify or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Company; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (mxv) adopt a plan of complete or partial liquidation (or resolutions providing for or authorizing such liquidation), dissolution, merger, consolidation, restructuring, recapitalization or reorganization of the Company or any of the Company Subsidiaries (other reorganizationthan the Merger); (xvi) abandon, cease to prosecute, fail to maintain, sell, license, assign or encumber any material Permit or other material assets; (xvii) with respect to Intellectual Property, except in the ordinary course of business, (A) sell, assign, license, sublicense, encumber, impair, abandon, fail to maintain, transfer or otherwise dispose of any right, title or interest of the Company or any of the Company Subsidiaries in any Company Intellectual Property, (B) grant, extend, amend, waive, cancel or modify any rights in or to the Company Intellectual Property, or (C) divulge, furnish to or make accessible any Trade Secrets within Company Intellectual Property to any Person who is not subject to an enforceable written agreement to maintain the confidentiality of such Trade Secrets; (xviii) enter into any Contract that would result in the grant to the Company or any of the Company Subsidiaries of any right or license in the Intellectual Property of any Person, or amend, assign, terminate or fail to exercise a right of renewal or extension under Contract related to Company Intellectual Property, except in the ordinary course of business; (xix) authorize any new capital expenditures, except (A) for the replacement of broken but necessary equipment of the Company and the Company Subsidiaries and not to exceed $100,000 in the aggregate and (B) for other new capital expenditures not to exceed $50,000 in the aggregate; (xx) fail to use reasonable best efforts to keep in full force and effect all insurance policies maintained by the Company and the Company Subsidiaries; (xxi) enter into any agreement, arrangement or commitment that materially limits or otherwise materially restricts the Company or any Company Subsidiary, or that would reasonably be expected to, after the Effective Time, materially limit or restrict Parent or any of its Subsidiaries or any of their respective Affiliates or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic area material to the business or operations of Parent or any of its Subsidiaries; or (nxxii) announce an intention, enter into any formal take or informal agreement agree in writing or otherwise make a commitment, to do take any of the foregoingactions precluded by Section 6.1(b).

Conduct of Business by the Company Pending the Merger. The Company agrees that, between the date of this Agreement and the Appointment Time (Effective Time, except as defined set forth in Section 7.03(c))5.01 of the Company Disclosure Schedule or as contemplated by any other provision of this Agreement, unless Parent shall otherwise agree consent in writing, : (i) the businesses of the Company and the Company Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in in, the ordinary course of business and in a manner consistent with past practice; and and (ii) the Company shall use its reasonable best efforts to preserve substantially intact the its business organization of the Company and the Subsidiariesorganization, to keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with customers, suppliers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and or as set forth in Section 6.01 5.01 of the Company Disclosure LetterSchedule, neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Appointment Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) amend or otherwise change its Certificate Articles of Incorporation or By-Laws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant or grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of its capital stock of any class of capital stock or other type of equity interests of the Company or any Subsidiaryclass, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interestsstock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Subsidiary (Company Subsidiary, except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hiresas contemplated by Section 5.01(f) or (ii) any material assets (including Intellectual Property) of the Company or any Company Subsidiary, except except, in the case of this clause (ii) only, in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any direct or indirect wholly owned Subsidiary to the Company or any other Subsidiary; (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant of the Company or any Subsidiary; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or assets) any other business combination) material interest in any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); assets; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary)advances, except for advances of business expenses indebtedness incurred in the ordinary course of business and consistent with past practice)practice and other indebtedness with a maturity of not more than one year in a principal amount not, or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course aggregate, in excess of business and consistent with past practice; $2,000,000; (iii) enter into any contract or agreement material to the business, results of operations or financial condition of the Company and the Company Subsidiaries taken as a whole other than in the ordinary course of business and business, consistent with past practice; ; (iv) authorize any capital expenditure in any manner not expenditure, other than capital expenditures reflected in the Company's 1999 Business Plan delivered to Parent on November 8, 1999 and other capital budget expenditures which are not, in the aggregate, in excess of $50,000 for the Company attached and the Company Subsidiaries taken as Section 6.01(e)(iv) of the Disclosure Lettera whole; or (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in that, if fully performed, would not be permitted under this Section 6.01(e5.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent accordance with past practice in salaries, wages, bonuses, incentives salaries or benefits wages of employees of the Company or any Company Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary (except that Parent shall not unreasonably withhold its consent with respect to the hiring of any Subsidiarynew employees and the Company entering into employment agreements or arrangements with such new employees in the ordinary course of business consistent with past practice), or establish, adopt, enter into or amend any collective bargaining, bonus, profit-profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply employee other than in the ordinary course of business consistent with Section 409A of the Code so as to avoid the imposition of additional tax with respect theretopast practice; (g) enter into any licensing, distribution, sponsorship, advertising, merchant program or other similar contracts, agreements, or obligations involving payments by the Company in excess of $100,000 which may not be cancelled without penalties by the Company upon notice of 30 days or less other than in the ordinary course of business consistent with past practice; (h) take any action to cause, or fail to take any material action to prevent, the accelerated vesting and exercisability of the Company Stock Options except as provided by the terms of such Company Stock Options or the employment agreement or arrangements of the employee and except as contemplated by Section 2.05; (i) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make procedures except for any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, such action required by a concurrent change in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice;GAAP; or (j) amendmake, modify change or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of revoke any material rights of the Company or any Subsidiary thereunder, in a manner adverse in any material respect to the Company; (k) commence or settle any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform Tax election or make any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (m) adopt a plan of complete or partial liquidation, dissolution, recapitalization or other reorganization; or (n) announce an intention, enter into agreement regarding Taxes with any formal or informal agreement or otherwise make a commitment, to do any of the foregoingtaxing authority.

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the Appointment Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (i) as defined required by applicable Law, (ii) as consented to in writing by Parent, which consent shall not be unreasonably withheld, conditioned or delayed, (iii) as may be expressly required or expressly contemplated pursuant to this Agreement or (iv) as set forth in Section 7.03(c)), unless Parent shall otherwise agree in writing6.1 of the Company Disclosure Letter, the businesses business of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, its subsidiaries shall be conducted only in, and the Company and the Subsidiaries such entities shall not take any action except in the ordinary course of business and in a manner consistent with past practice; and the Company and its subsidiaries shall use its their reasonable best efforts to (a) preserve substantially intact the Company’s business organization and the assets of the Company and the Subsidiariesits subsidiaries, (b) to keep available the services of the their current officers, key employees and consultants of the Company key consultants, and the Subsidiaries (c) to maintain existing relationships and to preserve the current relationships of the Company and the Subsidiaries goodwill with Governmental Authorities, material customers, material suppliers, material creditors and material lessors and other persons with which the Company or any Subsidiary of its subsidiaries has significant business relations; provided. Furthermore, howeverthe Company agrees with Parent that, that except (1) as required by applicable Law, (2) as consented to in writing by Parent, which consent shall not be unreasonably withheld, conditioned or delayed, (3) as may be expressly required or expressly contemplated pursuant to this Agreement or (4) as set forth in Section 6.1 of the Company Disclosure Letter, the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parentnot: (a) amend or otherwise change change, or permit any of its subsidiaries to amend or otherwise change, the Certificate of Incorporation or By-Laws laws of the Company or equivalent such similar applicable organizational documentsdocuments of any of its subsidiaries; (b) split, combine, subdivide, reclassify, purchase, redeem, repurchase or otherwise acquire, issue, sell, pledge, dispose ofdispose, encumber or grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of its or units (if applicable) its subsidiaries’ capital stock, any right to receive cash based on the value of any class of its or its subsidiaries’ capital stock or other type of equity interests of the Company or any Subsidiarystock, or any options, warrants, convertible securities or exchangeable securities, stock-based performance units, equity awards denominated in shares of the Company’s capital stock or other rights of any kind to acquire any shares of its or units (as applicable) of such its subsidiaries’ capital stock or other type rights to receive any economic interest of equity interestsa nature accruing to the holders of Common Stock; provided, however, that (i) the Company may issue shares upon exercise or settlement of any other ownership interest (including, without limitation, any phantom interest), Equity Award or Company ESPP purchase right outstanding as of the date hereof, and (ii) the Company or any Subsidiary (except for may acquire shares of capital stock in connection with tax withholdings and exercise price settlements upon the issuance exercise of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and vesting of Company Stock Awards outstanding RSU Awards, in each case, existing on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practicehereof; (c) declare, set aside, authorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to the Company’s or any of its subsidiaries’ capital stock, except for other than (i) dividends or other distributions paid by any direct or indirect wholly wholly-owned Subsidiary subsidiary of the Company to the Company or any subsidiary of the Company to its parent or (ii) dividends or other Subsidiarydistributions paid by any direct or indirect non-wholly-owned subsidiary of the Company to the Company or any non-wholly-owned subsidiary of the Company to its parent, provided that such dividend or distribution is required under the organizational documents of such non-wholly-owned subsidiary; (d) reclassifyexcept as required pursuant to any Company Benefit Plan in effect as of the date hereof or as required by applicable Law, combine(i) increase the compensation or other benefits payable or to become payable to directors, splitexecutive officers, subdivide employees or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant independent contractors of the Company or any Subsidiary; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnershipits subsidiaries, other business organization or any division thereof or acquire any material amount of assets (other than (A) any license of Intellectual Property increases up to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) 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, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses 6% on an individual basis in the ordinary course of business and consistent with past practice), or grant any security interest in any of its assets (including Intellectual Property) except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salariesto employees below the level of senior vice president, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or (ii) grant any severance or termination pay to, or enter into any employment or severance agreement with, with any director, officer executive officer, employee or other employee independent contractor of the Company or any of its subsidiaries, other than payments of severance benefits pursuant to (x) any SubsidiaryCompany Benefit Plan (excluding the Severance Guidelines) in effect as of the date hereof and set forth on Section 4.12(a) of the Company Disclosure Letter or (y) the Severance Guidelines (with the base salary component of such severance payments or benefits not to exceed 12 months of base salary for employees at or below the vice president level or 18 months of base salary for employees at the senior vice president or executive vice president level, if applicable), in each case, in the ordinary course of business consistent with past practice, (iii) enter into any employment, severance, retention or change of control agreement with any employee or new hire of the Company or any of its subsidiaries (except for employment agreements on customary terms that are terminable on less than thirty (30) days’ notice without payment of severance benefits or penalty or similar payments), (iv) establish, adopt, enter into into, amend or amend terminate any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance Company Benefit Plan or other plan, agreement, trust, fund, policy policy, agreement or arrangement for the benefit of any directorcurrent or former directors, officer officers, employees or employeeindependent contractors or any of their beneficiaries, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practicepractice that do not (A) in any manner materially increase the cost to the Company or its subsidiaries or (B) obligate the Company or its subsidiaries beyond December 31, with respect 2015, (v) take any action to accounting policies fund in a nonqualified trust the payment of compensation or procedures; benefits under any Company Benefit Plan, (hvi) make adopt, enter into, establish, amend or terminate any material tax election collective bargaining agreement or settle other arrangement relating to union or compromise organized employees, (vii) terminate the employment of any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise)executive officer of the Company, other than the paymentfor cause, discharge or satisfaction, (viii) hire or promote any employee other than hires or promotions in the ordinary course of business and consistent with past practicepractice below the level of senior vice president with a total annual cash compensation (base salary plus annual target bonus opportunity) below $350,000; (e) grant, confer or award options, convertible securities, restricted stock, restricted stock units or other rights to acquire any of liabilities reflected its or reserved against in its subsidiaries’ capital stock or any right to receive cash based on the 2007 Balance Sheet value of its subsidiaries’ capital stock, or subsequently incurred take any action not otherwise expressly contemplated by this Agreement to accelerate the vesting of or cause to be exercisable any otherwise unvested or unexercisable option or other equity or equity-based award (except as otherwise provided by the terms of any unexercisable Company Options or other Equity Awards outstanding on the date hereof and set forth on Section 4.3(b) of the Company Disclosure Letter); (f) acquire or permit its subsidiaries to acquire (including by merger, consolidation, or acquisition of stock or assets) any entity, business or material portion of the assets of any person except for inventory in the ordinary course of business consistent with past practices; (g) (i) incur any indebtedness for borrowed money, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, except for (A) debt incurred pursuant to the Credit Agreement in the ordinary course of business consistent with past practice, and in no event in excess of $5,000,000 in the aggregate, and (B) any indebtedness among the Company and its subsidiaries, or (ii) redeem, repurchase, prepay, defease, guarantee, cancel or otherwise acquire for value any such indebtedness, debt securities or warrants or other rights; (h) (i) subject to Section 6.18, terminate, modify or amend any Company Material Contract or material Company Lease other than the expiration or renewal of any Company Material Contract or material Company Lease in accordance with its terms, or enter into any contract, agreement, or arrangement that would have been a Company Material Contract or material Company Lease if entered into prior to the date hereof, (ii) waive in any material respect any term of, or waive any material default under any Material Contract, or (iii) enter into any contract which contains a change of control or similar provision that would require a payment to the other party or parties thereto in connection with the Offer Closing, the Merger, or the other transactions contemplated herein (including in combination with any other event or circumstance); (i) make any material change to its methods of accounting for financial accounting purposes in effect at December 31, 2014, except (i) as required by GAAP (or any interpretation thereof), Regulation S-X of the Exchange Act or a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization), or (ii) as required by a change in applicable Law; (j) except for transactions among the Company and its wholly-owned subsidiaries or among the Company’s wholly-owned subsidiaries, sell, lease, license, transfer, exchange or swap, mortgage or otherwise encumber or subject to any Lien (other than Permitted Liens) or otherwise dispose of any material portion of its properties or assets, other than advertising inventory in the ordinary course of business consistent with past practice; (jk) amendmake any loans, modify advances or consent capital contributions to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights of the Company or any Subsidiary thereunder, in a manner adverse investments in any material respect to other person (other than its subsidiaries) in excess of $5,000,000 in the Company; (k) commence or settle any material Actionaggregate; (l) permit except to the extent otherwise required by applicable Law, make or change or revoke any material item Tax election, change any existing or implement new transfer price methods, change any method of Tax accounting, change any Tax accounting period, file any material amended Tax Return, make or change any method in which the Company Registered Intellectual Property and its subsidiaries xxxx, withhold or surcharge any material Taxes to lapse its customers with respect to Company Products in the ordinary course of business, settle or compromise any audit or proceeding relating to be abandoneda material amount of Taxes, dedicatedenter into any closing agreement within the meaning of Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) with respect to any material Tax, or disclaimed, fail to perform or make surrender any applicable filings, recordings or other similar actions or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every claim for a refund of a material item amount of Company Registered Intellectual PropertyTaxes; (m) make or agree to make, or permit any of its subsidiaries to make or agree to make, capital expenditures totaling in the aggregate more than $10,000,000; (n) adopt or enter into, or permit to be adopted or entered into, a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganizationreorganization of the Company or any of its subsidiaries, other than the Merger; (o) settle, pay, discharge or satisfy any claim, action, suit, proceeding or investigation against or regarding the Company or any of its subsidiaries, whether civil, criminal, administrative or investigative, other than routine immaterial matters in the ordinary course of business or settlements that involve only the payment of monetary damages not in excess of $500,000 individually or $5,000,000 in the aggregate (excluding from such dollar thresholds amounts covered by any third-party indemnification provision in favor of the Company or any of its subsidiaries to the extent supported by available escrowed funds or covered by any insurance policy of the Company or any of its subsidiaries); (p) permit to lapse or intentionally cancel any material Intellectual Property Rights of the Company and any of its Subsidiaries, except Intellectual Property Rights which the Company reasonably determines no longer have commercial value; (q) amend in a manner that adversely impacts in any material respect the ability to conduct its business, or allow to lapse, any material Company Permits; (r) fail to maintain in full force and effect insurance policies of the Company and its properties, businesses, assets and operations in a form and amount consistent with past practice in all material respects; (s) take, or omit to take (or permit any of its subsidiaries to take, or omit to take), any action which would reasonably be expected to cause a default or event of default under the Credit Agreement or the Notes; (t) make any material change to its privacy or data security policies or practices; or (nu) announce an intentionintention to enter into, authorize or enter into into, or permit any formal of its subsidiaries to authorize or informal enter into, any written agreement or otherwise make a commitment, any commitment to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. (a) The Company agrees that, between the date of this Agreement and the Appointment Time (Effective Time, except as defined required by applicable Law or as set forth in Section 7.03(c))5.01 of the Company Disclosure Schedule or as expressly provided by any other provision of this Agreement, unless Parent shall otherwise agree in writingprovide its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed): (i) the businesses of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, Group Companies shall be conducted only in, and the no Group Company and the Subsidiaries shall not take any action except in, a lawfully permitted manner in the ordinary course of business and in a manner consistent with past practice; and and (ii) the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Group Companies, maintain in effect all Material Company and the SubsidiariesPermits, to keep available the services of the current officers, employees key employees, and key consultants and contractors of the Company Group Companies and the Subsidiaries and to preserve the current material relationships and goodwill of the Company Group Companies with Governmental Authorities, key customers and the Subsidiaries with customers, suppliers, and any other persons with which the any Group Company or any Subsidiary has significant business relations; provided. (b) In furtherance and without limitation of Section 5.01(a), however, that (1except as set forth in Section 5.01(b) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in Disclosure Schedule, or as required by applicable Law or as expressly provided by any other provision of this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracyAgreement, the Company will not, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, will not permit any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shallits Subsidiaries to, between the date of this Agreement and the Appointment Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld, conditioned or delayed): (ai) amend or otherwise change its Certificate the memorandum and articles of Incorporation or By-Laws association or equivalent organizational documentsdocuments of the Company, or make any material amendments to the memorandum and articles of association or equivalent organizational documents of any other Group Company; (bii) issue, sell, transfer, lease, sublease, license, pledge, dispose of, grant or encumber, or authorize the issuance, sale, transfer, lease, sublease, license, pledge, disposition, grant or encumbrance of, (iA) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any SubsidiaryGroup Company, or any options, warrants, convertible securities or other rights of any kind (including any Company Share Award) to acquire any shares or units (as applicable) of such capital stock or other type of equity interestsshares, or any other ownership interest (including, without limitation, any phantom interest), of any Group Company (other than (x) in connection with the exercise or settlement of any Company Share Awards outstanding on the date hereof in accordance with the applicable Share Incentive Plan and applicable award agreement or (y) in transactions solely among the Company’s wholly-owned Subsidiaries or between the Company and any of its wholly-owned Subsidiaries), or (B) any material property or assets (whether real, personal or mixed, and including leasehold interests and intangible property) of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hiresother than (x) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practicepractice or (y) in transactions solely among the Company’s wholly-owned Subsidiaries or between the Company and any of its wholly-owned Subsidiaries); (ciii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stockshares, property or otherwise, with respect to any of its capital stockshares, except for other than dividends by or other distributions from any direct or indirect wholly owned Subsidiary Group Company to the Company or any other Subsidiaryanother Group Company which is wholly-owned by the Company; (div) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stockshares, except or any options, warrants, convertible securities or other rights exchangeable into or convertible or exercisable for the repurchase or reacquisition any of securities its share capital, in each case other than in connection with the termination of service settlement of any employee, director or consultant of Company Share Awards in accordance with the Company or any Subsidiaryapplicable Share Incentive Plans and this Agreement; (ev) (iA) effect or commence any liquidation, dissolution, scheme of arrangement, merger, consolidation, amalgamation, recapitalization, restructuring, reorganization or similar transaction involving any Group Company (other than the Merger or any merger or consolidation among wholly-owned Subsidiaries of the Company), or (B) create any new Subsidiaries; (vi) (A) acquire (including, without limitation, by merger, consolidation, scheme of arrangement, amalgamation or acquisition of stock or assets or any other business combination) or make any capital contribution or investment in any corporation, partnership, other business organization or any division thereof (other than a wholly-owned Subsidiary of the Company), or (B) acquire any material amount of assets (other than (Ax) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) 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, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and consistent with past practicepractice or (y) assets of a wholly-owned Subsidiary of the Company); (vii) (A) incur, assume, alter, amend or modify any Indebtedness, guarantee any Indebtedness, or issue any debt securities, in each case, in excess of US$1,000,000 individually or US$2,000,000 in the aggregate, or (B) make (x) any loans or advances to any director or executive officer of the Company or (y) any loans or advances in excess of US$1,000,000 individually or US$2,000,000 in the aggregate to any other person; (viii) create or grant any security interest in Lien on any of its material assets (including material Intellectual Property) except in of any Subsidiaries of the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement Company other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (jix) amend(A) authorize, or make any commitment with respect to, any single capital expenditure which is in excess of US$1,000,000, unless specifically included in the Company’s current budget and operating plan approved by the Company Board, or (B) authorize or make any commitment with respect to capital expenditures which are, in the aggregate (including capital expenditures included in the Company’s budget and operating plan), in excess of US$5,000,000 for the Group Companies taken as a whole; or (x) guarantee the performance or other obligations of any person (other than guarantees in connection with any Indebtedness as permitted by the foregoing clause (viii)); (xi) except as otherwise required by Law or pursuant to any Company Employee Plan in existence as of the date hereof, (A) enter into any new employment or compensatory agreements in connection with employment (including the renewal of any such agreements), or terminate or amend any such agreements, with any director or officer of any Group Company or any other employee of any Group Company who has an annual base salary in excess of US$80,000, (B) grant or provide any severance or termination payments or benefits in excess of US$5,000 individually or US$50,000 in the aggregate to any director, officer, employee or consultant of any Group Company, (C) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or grant, issue or make any new equity awards to any director, officer, employee or consultant of any Group Company, except annual base salary increases to non-officer employees of any Group Company made in the ordinary course consistent with past practice, (D) establish, adopt, amend or terminate any Company Employee Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Employee Plan if it were in existence as of the date of this Agreement or amend the terms of any outstanding Company Share Awards, (E) take any action to accelerate or otherwise alter the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under the Company Employee Plan, to the extent not already required in any such plan, including voluntarily accelerating the vesting of any Company Share Award in connection with the Merger, or (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Employee 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; (xii) make any material changes with respect to any method of financial accounting, or financial accounting policies or procedures, including material changes affecting the reported consolidated assets, liabilities or results of operations of any Group Companies except as required by changes in GAAP or applicable Law; (xiii) (A) enter into, materially amend or modify (other than extensions at the end of the term in the ordinary course of business), or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of (or any Contract that would be a Material ContractContract if such Contract had been entered into prior to the date hereof), or (B) amend, waive, modify or consent to the termination of the Company’s or any Subsidiary’s material rights of the Company or any Subsidiary thereunder, in each case of (A) and (B) which would reasonably be expected to adversely impact the Group Companies, taken as a manner adverse whole, in any material respect, or (C) fail to comply with or breach in any material respect to any Material Contract (including the CompanyInvestment Documents); (kxiv) enter into any Contract between any of the Group Companies, on the one hand, and any of their respective directors or officers, on the other hand, in each case required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (except as permitted under Section 5.01(b)(xii)); (xv) terminate or cancel, let lapse, or amend or modify in any material respect, other than renewals in the ordinary course of business, any material insurance policies maintained by it which is not promptly replaced by a comparable amount of insurance coverage with reputable independent insurance companies or underwriters; (xvi) commence any material Action (other than in respect of collection of amounts owed in the ordinary course of business) or settle any material ActionAction other than any settlement involving only the payment of monetary damages not in excess of US$200,000 not relating to this Agreement or the Transactions; (lxvii) engage in the conduct of any new line of business material to the Group Companies, taken as a whole; (xviii) permit any material item of Company Registered material Intellectual Property to lapse or to be abandoned, dedicated, or disclaimeddisclaimed (other than expiration of Intellectual Property), or fail to perform or make any applicable filings, recordings or other similar actions or filingsfilings required to maintain and protect its interest in material Intellectual Property, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (mxix) adopt fail to make in a plan timely manner any filings or registrations with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder; (xx) make or change any material Tax election, amend any material Tax return (except as required by applicable Law), enter into any material closing agreement with respect to Taxes, surrender any right to claim a material refund of complete Taxes, settle or partial liquidation, dissolution, recapitalization finally resolve any material controversy with respect to Taxes or other reorganizationchange any material method of Tax accounting; or (nxxi) announce an intentionauthorize or agree to take any of the foregoing actions, or enter into any formal letter of intent (binding or informal non-binding) or similar written agreement or otherwise make a commitment, arrangement with respect to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. (a) The Company agrees that, between the date of this Agreement and the Appointment Time (Effective Time, except as defined required by applicable Law or as set forth in Section 7.03(c))5.01 of the Company Disclosure Schedule or as expressly provided by any other provision of this Agreement, unless Parent shall otherwise agree in writingprovide its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed): (i) the businesses of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, Group Companies shall be conducted only in, and the no Group Company and the Subsidiaries shall not take any action except in, a lawfully permitted manner in the ordinary course of business and in a manner consistent with past practice; and and (ii) the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Group Companies, maintain in effect all Material Company and the SubsidiariesPermits, to keep available the services of the current officers, employees key employees, and key consultants and contractors of the Company Group Companies and the Subsidiaries and to preserve the current material relationships and goodwill of the Company Group Companies with Governmental Authorities, key customers and the Subsidiaries with customers, suppliers, and any other persons with which the any Group Company or any Subsidiary has significant business relations; provided. (b) In furtherance and without limitation of Section 5.01(a), however, that (1except as set forth in Section 5.01(b) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in Disclosure Schedule, or as required by applicable Law or as expressly provided by any other provision of this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracyAgreement, the Company will not, and (2) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, will not permit any of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 6.01 of the Disclosure Letter, neither the Company nor any Subsidiary shallits Subsidiaries to, between the date of this Agreement and the Appointment Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld, conditioned or delayed): (ai) amend or otherwise change its Certificate the memorandum and articles of Incorporation or By-Laws association or equivalent organizational documentsdocuments of the Company, or make any material amendments to the memorandum and articles of association or equivalent organizational documents of any other Group Company; (bii) issue, sell, transfer, lease, sublease, license, pledge, dispose of, grant or encumber, or authorize the issuance, sale, transfer, lease, sublease, license, pledge, disposition, grant or encumbrance of, (iA) any shares or units (if applicable) of any class of capital stock or other type of equity interests of the Company or any SubsidiaryGroup Company, or any options, warrants, convertible securities or other rights of any kind (including any Company Share Award) to acquire any shares or units (as applicable) of such capital stock or other type of equity interestsshares, or any other ownership interest (including, without limitation, any phantom interest), of any Group Company (other than (x) in connection with the exercise or settlement of any Company Share Awards outstanding on the date hereof in accordance with the applicable Share Incentive Plan and applicable award agreement or (y) in transactions solely among the Company’s wholly-owned Subsidiaries or between the Company and any of its wholly-owned Subsidiaries), or (B) any material property or assets (whether real, personal or mixed, and including leasehold interests and intangible property) of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hiresother than (x) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiary, except in the ordinary course of business and in a manner consistent with past practicepractice or (y) in transactions solely among the Company’s wholly-owned Subsidiaries or between the Company and any of its wholly-owned Subsidiaries); (ciii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stockshares, property or otherwise, with respect to any of its capital stockshares, except for other than dividends by or other distributions from any direct or indirect wholly owned Subsidiary Group Company to the Company or any other Subsidiaryanother Group Company which is wholly-owned by the Company; (div) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stockshares, except or any options, warrants, convertible securities or other rights exchangeable into or convertible or exercisable for the repurchase or reacquisition any of securities its share capital, in each case other than in connection with the termination of service settlement of any employee, director or consultant of Company Share Awards in accordance with the Company or any Subsidiaryapplicable Share Incentive Plans and this Agreement; (eA) effect or commence any liquidation, dissolution, scheme of arrangement, merger, consolidation, amalgamation, recapitalization, restructuring, reorganization or similar transaction involving any Group Company (other than the Merger or any merger or consolidation among wholly-owned Subsidiaries of the Company), or (B) create any new Subsidiaries; (vi) (iA) acquire (including, without limitation, by merger, consolidation, scheme of arrangement, amalgamation or acquisition of stock or assets or any other business combination) or make any capital contribution or investment in any corporation, partnership, other business organization or any division thereof (other than a wholly-owned Subsidiary of the Company), or (B) acquire any material amount of assets (other than (Ax) any license of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) 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, or make any loans or advances (including loans or advances to any director, officer, employee, agent or consultant of the Company or any Subsidiary), except for advances of business expenses in the ordinary course of business and consistent with past practicepractice or (y) assets of a wholly-owned Subsidiary of the Company); (vii) (A) incur, assume, alter, amend or modify any Indebtedness, guarantee any Indebtedness, or issue any debt securities, in each case, in excess of US$1,000,000 individually or US$2,000,000 in the aggregate, or (B) make (x) any loans or advances to any director or executive officer of the Company or (y) any loans or advances in excess of US$1,000,000 individually or US$2,000,000 in the aggregate to any other person; (viii) create or grant any security interest in Lien on any of its material assets (including material Intellectual Property) except in of any Subsidiaries of the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement Company other than in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (jix) amend(A) authorize, or make any commitment with respect to, any single capital expenditure which is in excess of US$1,000,000, unless specifically included in the Company’s current budget and operating plan approved by the Company Board, or (B) authorize or make any commitment with respect to capital expenditures which are, in the aggregate (including capital expenditures included in the Company’s budget and operating plan), in excess of US$5,000,000 for the Group Companies taken as a whole; or (x) guarantee the performance or other obligations of any person (other than guarantees in connection with any Indebtedness as permitted by the foregoing clause (viii)); (xi) except as otherwise required by Law or pursuant to any Company Employee Plan in existence as of the date hereof, (A) enter into any new employment or compensatory agreements in connection with employment (including the renewal of any such agreements), or terminate or amend any such agreements, with any director or officer of any Group Company or any other employee of any Group Company who has an annual base salary in excess of US$80,000, (B) grant or provide any severance or termination payments or benefits in excess of US$5,000 individually or US$50,000 in the aggregate to any director, officer, employee or consultant of any Group Company, (C) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or grant, issue or make any new equity awards to any director, officer, employee or consultant of any Group Company, except annual base salary increases to non-officer employees of any Group Company made in the ordinary course consistent with past practice, (D) establish, adopt, amend or terminate any Company Employee Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Employee Plan if it were in existence as of the date of this Agreement or amend the terms of any outstanding Company Share Awards, (E) take any action to accelerate or otherwise alter the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under the Company Employee Plan, to the extent not already required in any such plan, including voluntarily accelerating the vesting of any Company Share Award in connection with the Merger, or (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Employee 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; (xii) make any material changes with respect to any method of financial accounting, or financial accounting policies or procedures, including material changes affecting the reported consolidated assets, liabilities or results of operations of any Group Companies except as required by changes in GAAP or applicable Law; (xiii) (A) enter into, materially amend or modify (other than extensions at the end of the term in the ordinary course of business), or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of (or any Contract that would be a Material ContractContract if such Contract had been entered into prior to the date hereof), or (B) amend, waive, modify or consent to the termination of the Company’s or any Subsidiary’s material rights of the Company or any Subsidiary thereunder, in each case of (A) and (B) which would reasonably be expected to adversely impact the Group Companies, taken as a manner adverse whole, in any material respect, or (C) fail to comply with or breach in any material respect to any Material Contract (including the CompanyInvestment Documents); (kxiv) enter into any Contract between any of the Group Companies, on the one hand, and any of their respective directors or officers, on the other hand, in each case required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act (except as permitted under Section 5.01(b)(xii)); (xv) terminate or cancel, let lapse, or amend or modify in any material respect, other than renewals in the ordinary course of business, any material insurance policies maintained by it which is not promptly replaced by a comparable amount of insurance coverage with reputable independent insurance companies or underwriters; (xvi) commence any material Action (other than in respect of collection of amounts owed in the ordinary course of business) or settle any material ActionAction other than any settlement involving only the payment of monetary damages not in excess of US$200,000 not relating to this Agreement or the Transactions; (lxvii) engage in the conduct of any new line of business material to the Group Companies, taken as a whole; (xviii) permit any material item of Company Registered material Intellectual Property to lapse or to be abandoned, dedicated, or disclaimeddisclaimed (other than expiration of Intellectual Property), or fail to perform or make any applicable filings, recordings or other similar actions or filingsfilings required to maintain and protect its interest in material Intellectual Property, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company Registered Intellectual Property; (mxix) adopt fail to make in a plan timely manner any filings or registrations with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder; (xx) make or change any material Tax election, amend any material Tax return (except as required by applicable Law), enter into any material closing agreement with respect to Taxes, surrender any right to claim a material refund of complete Taxes, settle or partial liquidation, dissolution, recapitalization finally resolve any material controversy with respect to Taxes or other reorganizationchange any material method of Tax accounting; or (nxxi) announce an intentionauthorize or agree to take any of the foregoing actions, or enter into any formal letter of intent (binding or informal non-binding) or similar written agreement or otherwise make a commitment, arrangement with respect to do any of the foregoing.

Conduct of Business by the Company Pending the Merger. (a) The Company covenants and agrees that, between the date of this Agreement and the Appointment earlier of the Effective Time and the termination of this Agreement pursuant to Article IX, except (i) as defined set forth in Section 7.03(c6.01 of the Company Disclosure Schedule, (ii) as expressly contemplated or permitted by this Agreement or (iii) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed)), unless Parent shall otherwise agree in writing, the businesses of the Company and the its Subsidiaries shall, except as otherwise expressly contemplated by this Agreement, shall be conducted only in, and the Company and the its Subsidiaries shall not take any action except in in, the ordinary course of business and in a manner consistent with past practice; practice and the Company and each of its Subsidiaries shall use its their reasonable best efforts to (A) preserve substantially intact the their existing assets, (B) preserve substantially intact their business organization of the Company and the Subsidiariesorganization, to (C) keep available the services of the their current officers, employees and consultants of the Company consultants, (D) maintain and the Subsidiaries and to preserve the intact their current relationships of the Company and the Subsidiaries with customers, suppliers, distributors, creditors and other persons Persons with which the Company or any Subsidiary of its Subsidiaries has significant business relations; provided, however, that (1) the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty of the Company set forth in this Agreement to be or become inaccurate unless Parent shall waive in writing such inaccuracy, relations and (2E) no failure by the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any of the representations and warranties of the Company set forth comply in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01. all material respects with applicable Law. (b) By way of amplification and not limitation, except as expressly contemplated by this Agreement and set forth in Section 6.01 of the Company Disclosure LetterSchedule, neither as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company nor any Subsidiary shallwill not and will not permit its Subsidiaries, between the date of this Agreement and the Appointment Time, directly or indirectly, do, or propose to do, any earlier of the following without Effective Time and the prior written consent termination of Parentthis Agreement pursuant to Article IX, to: (ai) amend or otherwise change its Certificate memorandum and articles of Incorporation association or By-Laws or other equivalent organizational documents; (bii) adopt a plan of complete or partial liquidation, dissolution, scheme of arrangement, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger); (iii) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any of its Subsidiaries; (iv) (A) issue, sell, pledge, terminate or dispose of, (B) grant an Encumbrance on or encumberpermit an Encumbrance to exist on, or (C) authorize the issuance, sale, pledge, disposition, grant termination or encumbrance disposition of, (i) or granting or placing of an Encumbrance on, any shares or units (if applicable) of any class of share capital stock or other type of equity interests ownership interests, of the Company or any Subsidiaryof its Subsidiaries, or any agreement, contract or instrument amounting to control over, or enabling control of, the Company or any of its Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares share capital or units (as applicable) of such capital stock or other type of equity interests, or any other ownership interest (including, without limitation, including any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) or (ii) any assets (including Intellectual Property) of the Company or any Subsidiaryof its Subsidiaries; (v) (A) sell, pledge or dispose of, (B) grant an Encumbrance on or permit an Encumbrance to exist on, or (C) authorize the sale, pledge or disposition of, or granting or placing of an Encumbrance on, any material assets of the Company or any of its Subsidiaries having a current value in excess of US$1 million, except in the ordinary course of business and in a manner consistent with past practice; (cvi) declare, set aside, make or pay any dividend or other distribution, payable in cash, stockshare, property or otherwise, with respect to any of its capital stockshare capital, except for dividends by any of the Company’s direct or indirect wholly owned Subsidiary Subsidiaries to the Company or any of its other Subsidiarywholly owned Subsidiaries; (dvii) adjust, reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities in connection with the termination of service of any employee, director or consultant of the Company or any Subsidiaryshare capital; (eviii) (iA) acquire (including, without limitation, including by merger, consolidation, consolidation or acquisition of stock share or assets or any other business combination) any corporation, partnership, other business organization or any division thereof or acquire any material amount of assets (other than (A) those with a value or purchase price not in excess of US$1 million in any license transaction or a related series of Intellectual Property to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and transactions; (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) incur any indebtedness for borrowed money Indebtedness or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any personPerson, or make any loans or advances (including loans or advances to capital contribution to, or investment in, any director, officer, employee, agent or consultant of the Company or any Subsidiary)Person, except for advances of business expenses Indebtedness incurred in the ordinary course of business and consistent with past practice)in an amount not to exceed US$2 million in the aggregate, or grant including any security interest in any of its assets (including Intellectual Property) except short-term borrowings to fund working capital needs, and such other actions taken in the ordinary course of business and consistent with past practice; (iiiC) enter into authorize, or make any contract commitment with respect to, any single capital expenditure which is in excess of US$1 million or agreement other than capital expenditures which are, in the ordinary course aggregate, in excess of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of US$1 million for the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or and its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, taken as a whole; or (viD) enter into or amend any contract, agreement, commitment or arrangement Contract with respect to any matter set forth in this Section 6.01(e6.01(b)(viii); (fix) hire additional employeescreate any new Subsidiary; (x) engage in the conduct of any new line of business material to the Company and its Subsidiaries, taken as a whole; (xi) make any changes with respect to accounting policies or procedures materially affecting the reported consolidated assets, liabilities or results of operations of the Company and its Subsidiaries, except hiring as required by changes in applicable generally accepted accounting principles or Law; (xii) revalue in any material respect any of its assets, including, without limitation, writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary and usual course of business and consistent with past practicepractice or as required by GAAP; (xiii) waive the benefits of, or increase agree to modify in any manner, any standstill or similar agreement with respect to any class of equity securities of the compensation payable Company or to become payable any of its Subsidiaries; (xiv) commence or the benefits provided to its directorssettle any Action, officers or employees, except for increases other than settlements (A) in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of and (B) requiring the Company and its Subsidiaries to pay monetary damages not exceeding US$200,000; (xv) enter into, amend, modify or consent to the termination of any Subsidiary who are not directors Material Contract, or officers enter into, amend, waive, modify or consent to the termination of the Company, ’s or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any actionits Subsidiaries’ material rights thereunder, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (jxvi) amend, modify make or consent to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of change any material rights of the Company or Tax election, materially amend any Subsidiary thereunderTax Return (except as required by applicable Law), in a manner adverse in enter into any material closing agreement with respect to the CompanyTaxes, surrender any right to claim a material refund of Taxes, settle or finally resolve any material controversy with respect to Taxes or materially change any method of Tax accounting; (kxvii) commence (A) abandon, disclaim, dedicate to the public, sell, assign or settle grant any security interest in, to or under any material Action; (l) permit any material item of Company Registered Intellectual Property to lapse or to be abandonedProperty, dedicated, or disclaimed, fail including failing to perform or make any cause to be performed all applicable filings, recordings or and other similar actions or filingsacts, or fail to pay or cause to be paid all required fees and taxes required or advisable Taxes, to maintain and protect its interest in each the material Company Intellectual Property; (B) grant to any third party any license, or enter into any covenant not to sxx, with respect to any material Company Intellectual Property, except non-exclusive licenses in the ordinary course of business consistent with past practice; (C) develop, create or invent any Intellectual Property jointly with any third party, except under existing arrangements that have been disclosed to Parent; (D) disclose or allow to be disclosed any confidential information or confidential Company Intellectual Property to any Person, other than employees of the Company or its Subsidiaries that are subject to a confidentiality or non-disclosure covenant protecting against further disclosure thereof, except under existing arrangements that have been disclosed to Parent; or (E) fail to notify Parent promptly of any infringement, misappropriation or other violation of or conflict with any material Company Intellectual Property of which the Company or any of its Subsidiaries becomes aware and every material item of to consult with Parent regarding the actions (if any) to take to protect such Company Registered Intellectual Property; (mxviii) adopt a plan except as required pursuant to existing written plans or Contracts in effect as of complete the date hereof or partial liquidationas otherwise required by applicable Law or carried out in the ordinary course of business consistent with past practice, dissolution(A) enter into any new employment or compensatory agreements (including the renewal of any consulting agreement) with any officer or director of the Company or any of its Subsidiaries with an annual base salary in excess of US$200,000, recapitalization (B) grant or provide any severance or termination payments or benefits to Service Providers in an amount in excess of US$200,000 in the aggregate, (C) increase the compensation, bonus or pension, welfare, severance or other reorganizationbenefits of, pay any bonus to by an amount in excess of US$1 million, or make any new equity awards to Service Providers in the aggregate, (D) establish, adopt, amend or terminate any Plan (except as required by Law) or amend the terms of any outstanding equity-based awards, (E) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Plan, to the extent not already required in any such Plan, (F) materially change any actuarial or other assumptions used to calculate funding obligations with respect to any 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 (G) forgive any loans to directors, officers or employees of the Company or any of its Subsidiaries; (xix) terminate or cancel, let lapse, or amend or modify in any material respect, other than renewals in the ordinary course of business, any insurance policies maintained by it which is not promptly replaced by a comparable amount of insurance coverage; (xx) fail to make in a timely manner any filings with the SEC required under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder; or (nxxi) agree, authorize, commit, announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing. (c) In addition, between the date of this Agreement and the Effective Time, the Company and its Subsidiaries shall (i) prepare and timely file all Tax Returns required to be filed in all material respects, (ii) timely pay all Taxes shown to be due and payable on such Tax Returns in all material respects, and (iii) promptly notify Parent of any notice of any material suit, claim, action, investigation, audit or proceeding in respect of any Tax matters (or any significant developments with respect to ongoing suits, claims, actions, investigations, audits or proceedings in respect of such Tax matters).

Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the Appointment Time (Effective Time, except as defined set forth in Section 7.03(c))6.01 of the Company Disclosure Schedule or as otherwise expressly provided for in this Agreement, unless Parent Merger Sub shall otherwise agree in writing, the businesses of the Company and the Subsidiaries shall, except as otherwise expressly contemplated by this Agreementand shall cause its subsidiaries, be conducted only in, and the Company and the Subsidiaries shall not take any action except to conduct its business in the ordinary course of business and in a manner consistent in all material respects with past practice; . The Company shall, and the Company shall cause its subsidiaries to, use its all commercially reasonable best efforts to (i) preserve substantially intact the its business organization of the Company and the Subsidiariesorganization, to (ii) keep available the services of the current officers, employees and consultants of the Company and the Subsidiaries and to its subsidiaries, (iii) preserve the current relationships of the Company and the Subsidiaries its subsidiaries with customers, distributors, suppliers, licensors, licensees, contractors and other persons with which the Company or any Subsidiary its subsidiaries has significant business relations; provided, however(iv) maintain all assets in good repair and condition (except for ordinary wear and tear) other than those disposed of in the ordinary course of business, that (1v) maintain all insurance necessary to the Company shall not be required to take any action pursuant to this Section 6.01 that would cause any representation or warranty conduct of the Company set forth Company's business as currently conducted, (vi) maintain its books of account and records in this Agreement to be or become inaccurate unless Parent shall waive the usual, regular and ordinary manner, (vii) maintain and protect all of its material Intellectual Property Rights in writing such inaccuracy, a manner consistent in all material respects with past practice and (2viii) no failure by complete the Company to take any action otherwise required by this Section 6.01 shall be deemed to constitute a breach of, or inaccuracy in, any implementation of the representations and warranties of the Company set forth in this Agreement if and to the extent that Parent shall consent in writing to such failure pursuant to this Section 6.01New System on or before June 30, 1999. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Agreement, or as set forth in Section 6.01 of the Company Disclosure LetterSchedule, neither the Company nor any Subsidiary shallshall not, and shall cause its subsidiaries not to, between the date of this Agreement and the Appointment Effective Time, directly or indirectly, indirectly do, or propose to do, any of the following without the prior written consent of ParentMerger Sub: (a) amend or otherwise change its Certificate Articles of Incorporation or By-Laws or equivalent organizational documentslaws, except to the extent contemplated by the Preference Amendment; (b) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares or units (if applicable) of capital stock of any class of capital stock or other type of equity interests of the Company (other than in connection with the Preference Exchange or any Subsidiarythe Equity Contribution) or its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares or units (as applicable) of such capital stock or other type of equity interestsstock, or any other ownership interest (including, without limitation, any phantom interestinterests), of the Company or any Subsidiary (except for the issuance of a maximum of 6,628,083 Shares issuable pursuant to Company Stock Options and Company Stock Awards outstanding on the date hereof and the grant of a maximum of 71,310 Company Stock Awards and Company Stock Options to new hires) its subsidiaries or (ii) any assets (including Intellectual Property) of the Company or any Subsidiaryits subsidiaries, except for sales in the ordinary course of business and in a manner consistent with past practicepractice and other asset sales for consideration or having a fair market value aggregating not more than $150,000; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except for dividends by any direct or indirect wholly owned Subsidiary to the Company or any other Subsidiary; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for the repurchase or reacquisition of securities other than in connection with the termination of service of any employee, director or consultant of the Company or any SubsidiaryPreference Exchange; (e) (i) acquire (including, without limitation, by merger, consolidation, consolidation or acquisition of stock or assets assets) or any other business combination) agree to acquire any corporation, partnership, limited liability company, or other business organization or any division thereof thereof; (f) (i) incur or acquire any material amount of assets (other than (A) any license of Intellectual Property agree to the Company and the Subsidiaries that is not material to the business of the Company and the Subsidiaries, taken as a whole, as currently conducted and (B) acquisitions of inventory and supplies that are consistent with past practice); (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans loans, advances, or advances (including loans capital contributions to or advances to investments in, any director, officer, employee, agent or consultant of the Company or any Subsidiary)other person, except for advances of business expenses in the ordinary course of business consistent with past practice and in an amount not in excess of $150,000; or (ii) authorize capital expenditures which are, in the aggregate, in excess of $500,000; (g) acquire, or agree to acquire, sell, lease or dispose of any Real Estate or other material assets, other than sales or leases of fixed assets (other than Real Estate) or sales of inventory, in each case, in the ordinary course of business consistent with past practice; (h) enter into, establish, adopt, amend or renew any material employment, consulting, severance or similar agreement or arrangements with any director, officer, or employee, or grant any salary or wage increase (other than in the ordinary course consistent with past practice); (i) establish, adopt, amend or grant increase benefits under any security interest in pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, welfare benefit contract, plan or arrangement (other than as may be required by applicable law); (j) enter into any labor or collective bargaining agreement, memorandum of its assets understanding, grievance settlement or any other agreement or commitment to or relating to any labor union; (including Intellectual Propertyk) discharge or satisfy any material Lien or pay or satisfy any material obligation or liability (fixed or contingent) except in the ordinary course of business and consistent with past practice; , or commence any voluntary petition, proceeding or action under any bankruptcy, insolvency or other similar law; (iiil) make or institute any change in accounting procedures or practices in its accounting procedures and practices unless mandated by GAAP; (m) take any action that, if taken after February 28, 1999 but prior to the date hereof, would have required to be disclosed in Section 3.07 of the Company Disclosure Statement (provided that, notwithstanding anything contained herein, no Company Material Adverse Effect which occurred prior to the date hereof would have to be listed on Section 3.07 of the Company Disclosure Statement); (n) enter into any contract agreement or agreement other than arrangement with any director, officer, employee or stockholder of the Company, its subsidiaries or any affiliate of the foregoing, except in the ordinary course of business and consistent with past practice; (iv) authorize any capital expenditure in any manner not reflected in the capital budget of the Company attached as Section 6.01(e)(iv) of the Disclosure Letter; (v) renew or enter into any noncompete, exclusivity or similar agreement that would restrict or limit, in any material respect, the operations of the Company or its Subsidiaries or, after the Acceptance Time, Parent or its subsidiaries, or (vi) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.01(e); (f) hire additional employees, except hiring in the ordinary course of business and consistent with past practice, or increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for increases in the ordinary course of business and consistent with past practice in salaries, wages, bonuses, incentives or benefits of employees of the Company or any Subsidiary who are not directors or officers of the Company, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except for such amendments as may be necessary or desirable to cause any such plan, agreement, trust, fund, policy or arrangement to comply with Section 409A of the Code so as to avoid the imposition of additional tax with respect thereto; (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures; (h) make any material tax election or settle or compromise any material United States federal, state, local or non-United States income tax liability; (i) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the 2007 Balance Sheet or subsequently incurred in the ordinary course of business and consistent with past practice; (jo) amend, modify enter into any agreement or consent other arrangement that is reasonably likely to be material to the termination (which for the avoidance of doubt shall not include the expiration of any Material Contract in accordance with its terms) of any Material Contract, or amend, waive, modify or consent to the termination of any material rights business of the Company or any Subsidiary thereunderits subsidiaries, except in a manner adverse in any material respect to the Companyordinary course of business consistent with past practice; (kp) commence make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any material ActionTax claim or assessment relating to the Company or its subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or its subsidiaries, fail to timely file any Tax Return, take a position on a Tax Return not in keeping with prior practice or take any other similar action, or omit to take any action relating to the filing of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action or omission could have the effect of increasing the present or future Tax liability or decreasing any present or future Tax asset of the Company or its subsidiaries; (lq) permit take any material item action or omit to take any action which would result in a violation of Company Registered Intellectual Property to lapse or to be abandoned, dedicated, or disclaimed, fail to perform or make any applicable filingsLaw or would cause a breach of any agreement, recordings contract or other similar actions commitment, which violation or filings, or fail to pay all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of breach would have a Company Registered Intellectual PropertyMaterial Adverse Effect; (mr) adopt a plan license, assign or otherwise transfer to any person or entity any rights to any material Intellectual Property Rights owned or used by the Company or its subsidiaries, except in the ordinary course of complete business consistent with past practice; (s) fail to maintain or partial liquidationenforce any material Intellectual Property Rights owned or used by the Company or its subsidiaries, dissolution, recapitalization or other reorganizationexcept in the ordinary course of business consistent with past practice; or (nt) announce an intentionauthorize or propose, enter into any formal or informal agreement or otherwise make a commitmentagree to take, to do any of the foregoingforegoing actions prohibited under Section 6.01.