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

Conduct of Business by the Company. Except for matters contemplated by this Agreement, from the date of this Agreement to the Effective Time, the Company shall, and shall cause each of the Company Subsidiaries to, conduct its business in the usual, regular and ordinary course of business and use all reasonable efforts to preserve intact its assets, Intellectual Property, business organization and relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of the Company Disclosure Schedule, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to do any of the following without the prior written consent of Parent: (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any of capital stock of the Company or any Company Subsidiary, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (B) split, combine or reclassify any of capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of capital stock of the Company or any Company Subsidiary or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls to acquire any such shares or other securities; (ii) issue, deliver, sell, grant, pledge, transfer or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1) the issuance of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Option; (iii) amend the Company Charter, Company By-laws or other comparable charter or organizational documents; (iv) directly or indirectly acquire or agree to acquire, by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, any person or any acquisition by the Company or any Company Subsidiary of any assets that are material to the Company and the Company Subsidiaries; (v) (A) grant to any current or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume or guarantee any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or finance; or (xviii) authorize, commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries), the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, During the period from the date of this Agreement to the Effective Time, except as set forth in Section 4.01(a) of the Company Disclosure Schedule or as consented to in writing in advance by Parent or as otherwise permitted or required by this Agreement, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct carry on its business in the usual, regular and ordinary course of business and consistent with past practice prior to the Closing and, to the extent consistent therewith, use all commercially reasonable efforts to preserve intact its assetscurrent business organizations, Intellectual Propertykeep available the services of its current officers, business organization employees and consultants and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Timeit. In addition, addition to and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of during the Company Disclosure Schedule, period from the date of this Agreement to the Effective Time, except as otherwise set forth in Section 4.01(a) of the Company Disclosure Schedule or as otherwise permitted or required pursuant to this Agreement, the Company shall not, and shall not permit any Company Subsidiary to do any of the following its Subsidiaries to, without the Parent’s prior written consent of Parentconsent: (i) (Ax) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property stock or otherwiseproperty) in respect of, any of its capital stock of the Company or any Company Subsidiarystock, other than (1) cash dividends payable by the Company in respect of shares of Company Common Stock consistent with past practice and not exceeding $0.10 per share of Company Common Stock per fiscal quarter, (2) dividends and distributions in connection with the Rights Agreement and (3) dividends or distributions by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parentshareholders, (By) split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary or (Cz) purchase, redeem or otherwise acquire any shares of its capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securities, except for purchases, redemptions or other acquisitions of capital stock or other securities (1) required by the terms of the Company Stock Plans or the ESPP or (2) required by the terms of any plans, arrangements or Contracts existing on the date hereof between the Company or any of its Subsidiaries and any director or employee of the Company or any of its Subsidiaries (to the extent complete and accurate copies of which have been heretofore delivered to Parent); (ii) issue, deliver, sell, grant, pledge, transfer pledge or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) securities or any securities convertible into or exchangeable forinto, or any optionsrights, warrants or rights of any kind options to acquire, any such shares, Voting Company Debt, voting securities or convertible securities, or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-stock based performance units, including pursuant to Contracts as in effect on the date hereof (other than (1x) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and or in connection with Company Stock Based Awards, in each case in accordance with their current terms on the date hereof, and (2) the y)the issuance of Company Common Stock Rights and shares of the Company’s capital stock pursuant to the Top-Up OptionCompany Rights or the Rights Agreement); (iii) amend (x) the Company Charter, Articles or the Company By-laws or other comparable charter or organizational documentsdocuments of any of the Company’s Subsidiaries or (y) the Indenture dated as of January 18, 1996 between the Company and Citibank, N.A., with respect to the 6.15% Senior Unsecured Notes due February 15, 2006 of the Company (the “Company Notes”), in each case except as may be required by applicable Law or the rules and regulations of the SEC or the NYSE; (iv) directly or indirectly acquire or agree to acquire, (x) by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, by making an investment in or capital contribution to, or by any other manner, any person or any acquisition by the Company division, business or any Company Subsidiary equity interest of any assets that are material person or (y) any asset or assets, except for (1) capital expenditures, which shall be subject to the Company limitations of clause (vii) below, (2) purchases of components, raw materials or supplies in the ordinary course of business consistent with past practice and (3) acquisitions of material intellectual property rights in respect of cross-licenses permitted in connection with the Company Subsidiariesdischarge, settlement or satisfaction of claims and litigation under clause (viii) below; (v) (Ax) grant sell, lease, license, mortgage, sell and leaseback or otherwise encumber or subject to any current Lien or former director, officer otherwise dispose of any of its material properties or employee of the Company other material assets or any Company Subsidiary any increase in compensation or pay any bonusinterests therein (including securitizations), except for increases (1) sales of cash compensation inventory and used equipment in the ordinary course of business consistent with past practice and (2) licenses of Intellectual Property Rights permitted in connection with the discharge, settlement or to the extent required satisfaction of claims and litigation under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Scheduleclause (viii) below, or (By) grant to any such current or former directorenter into, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into modify or amend any lease of material property, except for modifications or amendments that are not materially adverse to the Company Benefit Agreementand its Subsidiaries, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Optiontaken as a whole; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (viix) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume or guarantee incur any indebtedness for borrowed moneymoney or guarantee any such indebtedness of another person, issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities of the Company or any Company Subsidiaryof its Subsidiaries, guarantee any debt securities of another person, enter into any “keep well” or other agreement Contract to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances foregoing (other than advances to nonshort-officer employees term borrowings in the ordinary course of businessbusiness consistent with past practice under the Company’s commercial paper program, in an aggregate amount not to exceed $800,000,000 at any time outstanding) or capital contributions to, (y) make any loans or investments in, advances to any other person, other than to the Company or any direct or indirect wholly owned subsidiary employees in respect of the Company; (ix) engage travel expenses in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of businessbusiness consistent with past practice, which would result in the aggregate principal amount of all of the outstanding foregoing loans and advances of the Company and its Subsidiaries exceeding $25,000,000; (xvii) incur or agree to incur make any new capital expenditure or expenditures that, exceeding the amounts set forth in Section 4.01(a)(vii) of the aggregate, are in excess of $1,000,000 in any calendar quarterCompany Disclosure Schedule; (xiviii) make except as required by Law or change any material Tax election or settle or compromise any material Tax liability or refund; judgment by a court of competent jurisdiction, (xii) (Av) pay, discharge, settle or satisfy any material claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities disclosed, reflected or reserved against in, or contemplated by, in the most recent consolidated audited financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business or consistent with past practice, (Bw) cancel any indebtedness that is materialmaterial indebtedness, individually (x) waive or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive assign any claims or rights of substantial material value, (y) waive any benefits of, or agree to modify in any respect, or, subject to the terms hereof, knowingly fail to enforce, or consent to any matter with respect to which consent is required under, any standstill or similar Contract to which the Company or any of its Subsidiaries is a party or (z) waive any material benefits of, or agree to modify in any material respect, or, subject to the terms hereof, knowingly fail to enforce in any material respect, or consent to any matter with respect to which consent is required under, any material confidentiality or similar Contract to which the Company or any of its Subsidiaries is a party; (xiiiix) adopt enter into (1) any material Contract that would be of a plan type referred to in Section 3.01(i)(2)(A) or agreement (2) any other material Contract that would be of a type referred to in Section 3.01(i)(2)(B) or (C) and, in the case of this clause (2), that (A) would reasonably be expected to impair in any material respect the ability of the Company and its Subsidiaries to conduct their business as currently conducted or (B) would reasonably be expected to have a material adverse effect on the reasonably expected benefits of the Merger to Parent; (x) enter into, modify, amend or terminate any Contract or waive, release or assign any material rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned would reasonably be expected to (A) have a Material Adverse Effect, (B) impair in any material respect the ability of the Company to perform its obligations under this Agreement or (C) prevent or materially impede, interfere with, hinder or delay the consummation of the transactions contemplated by this Agreement; (xi) enter into any material Contract to the extent consummation of the transactions contemplated by this Agreement or compliance by the Company with the provisions of this Agreement could reasonably be expected to conflict with, or result in a violation or breach of, or resolutions providing for default (with or authorizingwithout notice or lapse of time, complete or partial liquidationboth) under, dissolutionor give rise to a right of, mergeror result in, consolidationtermination, restructuringcancelation or acceleration of any obligation or to the loss of a benefit under, recapitalization or result in the creation of any Lien in or upon any of the properties or other reorganization assets of the Company or any of its Subsidiaries under, or require Parent to license or transfer any of its Intellectual Property Rights or other than for the liquidation material assets under, or give rise to any increased, additional, accelerated, or guaranteed right or entitlements of any Company Subsidiary into the Companythird party under, or result in any material alteration of, any provision of such Contract; (xivxii) makeexcept as required to ensure that any Company Benefit Plan or Company Benefit Agreement is not then out of compliance with applicable Law or to comply with any Company Benefit Plan, Company Benefit Agreement or other Contract entered into prior to the date hereof (to the extent complete and accurate copies of which have been heretofore delivered to Parent), (A) adopt, enter into into, terminate or renewamend (I) any collective bargaining Contract or Company Benefit Plan or (II) any Company Benefit Agreement or other Contract, extendplan or policy involving the Company or any of its Subsidiaries and Key Personnel, amend(B) increase in any manner the compensation, modifybonus or fringe or other benefits of, or waive pay any material provisions discretionary bonus of any Contract kind or commitment amount whatsoever to, any current or relinquish former director, officer, employee or waive any material Contract rights or agree to the termination of any material Contractconsultant, except in the ordinary course of business; (xv) institute, settle, or agree business consistent with past practice to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant employees of the Company or a Company Subsidiary not to compete its Subsidiaries other than Key Personnel, (C) grant or other covenant pay any severance or termination pay, except for severance or termination pay granted or paid in the ordinary course of business consistent with past practice, to, or increase in any material manner the Company severance or a Company Subsidiary restricting the developmenttermination pay of, manufactureany current or former director, marketing officer, employee or distribution of the products or services consultant of the Company or any of its Subsidiaries other than Key Personnel, (D) remove any existing restrictions in any Company Subsidiary Benefit Agreements, Company Benefit Plans or otherwise limiting awards made thereunder, (E) take any action to fund or in any other way secure the freedom payment of compensation or benefits under any Company Benefit Plan or Company Benefit Agreement, (F) take any action to accelerate the vesting or payment of any compensation or benefit under any Company Benefit Plan or Company Benefit Agreement or awards made thereunder or (G) materially change any actuarial or other assumption used to calculate funding obligations with respect to any Company Pension Plan or change the manner in which contributions to any Company Pension Plan are made or the basis on which such contributions are determined; (xiii) except as required by GAAP, revalue any material assets of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer Subsidiaries or the Merger; (xvii) make any change in personnel relating to key employeesaccounting methods, operations principles or financepractices; or (xviiixiv) authorizeauthorize any of, commit or commit, resolve, propose or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. (a) Except for matters set forth in Schedule 5.01, as required by applicable Law or expressly contemplated by this Agreement, from the date of this Agreement to the Effective Time, Time the Company shall, and shall cause each of the Company Subsidiaries Subsidiary to, conduct its business in the usual, regular and ordinary course of business and in substantially the same manner as previously conducted and, to the extent consistent therewith, use all reasonable best efforts to maintain and preserve intact its assetscurrent business organization, Intellectual Property, business organization keep available the services of its current officers and employees and keep its relationships with customers, suppliers, licensors, licensees, distributors distributors, and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters set forth in Schedule 5.01, as required by applicable Law or expressly permitted contemplated by this Agreement or set forth on Section 6.01(a) of the Company Disclosure ScheduleAgreement, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to to, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed: (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether payable in cash, stock, property or otherwisea combination thereof) in respect of, any of its capital stock of the Company or any Company Subsidiarystock, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parentthe Company or another wholly owned subsidiary of the Company or make any other actual, constructive or deemed distribution in respect of the shares of capital stock, (B) split, combine combine, subdivide, recapitalize or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary stock, or (C) purchase, repurchase, redeem or otherwise acquire acquire, directly or indirectly, any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securities, except for shares of Company Common Stock delivered to the Company to pay the exercise price or Tax withholding obligations under any Company Option or Restricted Stock Unit award; provided, however, this clause (i) shall not prevent (x) the Company or any wholly owned Company Subsidiary from taking any of the foregoing actions with respect to the Equity Interests of any wholly owned Company Subsidiary or (y) the conversion of any indebtedness owed by any Company Subsidiary to the Company or any Company Subsidiary into Equity Interests, in each case, solely to the extent that any such action does not result in a material adverse Tax consequence to the Company and the Company Subsidiaries, taken as a whole; (ii) authorize for issuance, issue, deliver, sell, granttransfer, assign, pledge, transfer or otherwise encumber or dispose of grant, or subject agree or commit to any Lien issue, deliver, sell, transfer, assign, pledge, encumber or grant, (A) any shares of its capital stockstock or any other Equity Interest in the Company or any Company Subsidiary, (B) any Voting Company Debt or other voting securities, securities or (C) any securities convertible into or exchangeable for, for any shares of capital stock of the Company or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance unitsSubsidiary, other than (1x) the issuance of Company Common Stock upon the exercise or settlement of Company Options or Restricted Stock Options Units outstanding on the date of this Agreement and in accordance with their current present terms and (2y) the issuance of any Equity Interests by a Company Common Stock pursuant Subsidiary to the Top-Up OptionCompany or another wholly owned Company Subsidiary; (iii) amend the Company Charterits certificate of incorporation, Company Byby-laws or other comparable charter or organizational documentsdocuments or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary; (iv) directly or indirectly acquire or agree to acquire, acquire (A) by merging or consolidating with, or by purchasing all or by any other mannersubstantially all the assets of or all or substantially all the outstanding Equity Interests in, any equity interest in, business of or a substantial portion of the assets of, any person or any acquisition by the Company corporation, partnership, joint venture, limited liability company or any Company Subsidiary of other company, association or other business organization or (B) any assets that are material material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole, except purchases of inventory in the Ordinary Course of Business; (v) except (Ax) grant to any current or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation in the ordinary course of business or to the extent required under employment agreements by any Company Benefit Plan in effect on the date hereof and set forth or created or modified in accordance with this Section 4.15 5.01(a)(v) or Section 5.01(a)(vi), (y) in the Ordinary Course of the Company Disclosure ScheduleBusiness, or (z) as required by applicable Law, (A) grant any increase in compensation to any Service Provider, (B) pay any bonus, grant any new awards (including any equity awards), or modify any existing awards (including to accelerate the vesting or payment thereof) under any such Company Benefit Plan or any arrangement that would have been a Company Benefit Plan had it been in effect as of the date hereof, (C) enter into any employment, consulting, severance, termination or similar agreement with any current or former directorService Provider, officer (D) hire, promote or employee terminate without “cause” (as determined by the Company in its sole discretion) any Service Provider, (E) take any action to accelerate the time of vesting or payment of any material rights or benefits under any collective bargaining agreement or Company Benefit Plan in effect as of the date hereof, except as required by the terms of such collective bargaining agreement or Company Benefit Plan, (F) forgive any loans, or issue any loans, to any Service Provider, other than routine travel or business expense advances or relocation benefits, or (G) establish or adopt any bonus or short-term incentive plan for any calendar year after 2019; provided, however, that, notwithstanding anything to the contrary herein, from the date hereof through the Effective Time, the Company Subsidiary shall not without consent of Parent (1) grant any increase in severance new equity or termination pay, equity-based awards (except to the extent permitted by Schedule 5.01(a)(v)(6)), (2) grant any increase in compensation to any Senior Manager that is inconsistent with Schedule 5.01(a)(v)(2) or (3) establish or adopt any bonus or short-term incentive plan for any calendar year after 2019 for any Senior Manager in a manner that is inconsistent with Schedule 5.01(a)(v)(3); provided, further that, notwithstanding anything to contrary herein, no Ordinary Course of Business exception will be deemed to apply to the entry into a severance agreement as contemplated by clause (C) above or to actions contemplated by clause (D) above, in each case, with any Service Provider with the title of Executive Vice President or above. (vi) except (x) to the extent required under by any agreement Company Benefit Plan in effect on the date hereof and set forth or created or modified in accordance with Section 4.15 5.01(a)(v) or this Section 5.01(a)(vi), (y) in the Ordinary Course of Business or (z) as required by applicable Law, (A) change any actuarial or other assumptions used to calculate funding obligations for any Company Benefit Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, (B) take any action to fund, or in other way secure the payment of, compensation or benefits under any Company Disclosure ScheduleBenefit Plan by irrevocably setting aside or contributing to a trust or similar funding vehicle that requires that such funds remain segregated from the Company’s assets cash, property or a combination thereof for the benefit of Service Providers (it being understood that a funding will not be considered revocable solely due to a reversionary interest in such funds upon overfunding or plan termination), or (C) establish, adopt, enter into or amend any Company Benefit Agreementextend, (D) establish, adoptrenew, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or any arrangement that would be a Company Benefit Agreement Plan if it were in existence on the date hereof; provided, however, that notwithstanding anything to contrary herein, (1) no Ordinary Course of Business exception will be deemed to apply to actions contemplated by clause (B) above and (2) the Ordinary Course of Business exception as pertains to clause (C) above will be deemed to also require that such action would not result in a material increase in annual costs to the Company and its Subsidiaries, taken as a whole (and, for the avoidance of doubt, such material increase limitation shall not apply to any actions expressly contemplated in Schedule 5.01(a)(v) or (F) amend or modify any Company Stock OptionSchedule 5.01(a)(vi)); (vivii) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles principles, practices or practicespolicies, except insofar as may have been be required by a change in GAAP GAAP, IFRS or applicable Law; (viiviii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license license, transfer, pledge, encumber or otherwise dispose of or subject to any Lien any of its material properties or assets, except for sales of inventory and excess or obsolete assets with a value, individually or in the aggregate, in excess Ordinary Course of $100,000Business; (viiiix) (A) incur, assume or guarantee incur any indebtedness for borrowed moneymoney or guarantee, endorse, assume or otherwise become liable or responsible (directly or indirectly) for any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, Subsidiary or guarantee any debt securities of another personPerson, enter into any “keep well” in an amount in excess of $15,000,000 (individually) or other agreement to maintain any financial statement condition $30,000,000 (in the aggregate), except for (A) short-term borrowings incurred in the Ordinary Course of another person or enter into any arrangement having the economic effect of any of the foregoing, or Business and (B) make trade payables, letters of credit, parent guarantees and similar arrangements entered into in the Ordinary Course of Business to or for the benefit of suppliers and manufacturers; provided that neither the Company nor any loansCompany Subsidiary shall incur, advances issue, sell or guarantee any such amounts in compliance with this clause (ix) that are secured by a Lien (other than advances to non-officer employees amounts under Existing Credit Facilities) in excess of $15,000,000 (individually) or $30,000,000 (in the ordinary course of businessaggregate) or capital contributions toand, or investments inif so secured, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of shall deliver payoff letters and release and termination documentation for such amounts on the Company; (ix) engage Closing Date in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur same manner as set forth in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of businessSection 6.11; (x) incur make or agree to incur make any new capital expenditure or expenditures (A) that, individually, is in excess of $5,000,000 or, in the aggregate, are in excess of $1,000,000 15,000,000 during any fiscal quarter or (B) that would be in any calendar quarterviolation of Section 5.01(b); (xi) make make, change or revoke any material Tax election, amend any material Tax Returns, file any claims for material Tax refunds, settle any material Tax claim (other than those for which adequate reserves have been established), audit or assessment or surrender any right to claim a material Tax refund, offset or other reduction in Tax liability, change any annual Tax accounting period, adopt or change any material method of Tax election accounting or settle or compromise enter into any material Tax liability “closing agreement” within the meaning of Section 7121 of the Code (or refundsimilar provision of state, local or non-U.S. Law); (xii) make any loan, advance or capital contribution to or investments in any other Person (other than any loans or advances made to employees or any loan, advance or capital contribution to or investments solely between or among the Company and/or one or more Company Subsidiaries, in each case, in the Ordinary Course of Business); (xiii) abandon any existing business or enter into any new line of business; (xiv) revalue in any material respect any of its material properties or assets, including writing off notes or accounts receivable, in any case other than as required by applicable Law, IFRS or GAAP; (xv) (A) pay, discharge, settle cancel any material indebtedness owed to the Company or satisfy any claims, liabilities, obligations or litigation Company Subsidiary (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of any indebtedness owing from a wholly owned Company Subsidiary to the Company included in the Filed SEC Documents and/or one or incurred since the date of such financial statements in the ordinary course of business more other Company Subsidiaries) or (B) cancel waive, release, grant or transfer any indebtedness material claim or right of material value or consent to the termination of any material claim or right of material value; provided, however, this clause (xv) shall not prohibit the Company or any Company Subsidiary from taking any actions expressly permitted by any clause of this Section 5.01(a) or required to be taken by any other provision of this Agreement; (xvi) commence, settle or compromise any pending or threatened Proceedings if such settlement would (A) require payment by the Company in excess of $1,000,000 in any individual case or series of related cases or $5,000,000 in the aggregate with all other Proceedings, (B) involve injunctive or equitable relief or (C) impose any material restrictions or changes on the business or operations of the Company or any Company Subsidiary; (xvii) other than in the Ordinary Course of Business, (A) amend, modify or terminate (which, for the avoidance of doubt, shall not include any expiration or renewal of a Company Contract in accordance with its then-existing term), or waive, release or assign rights claims or benefits under, any Company Contract in such a way as to reduce the expected business or economic benefits thereof or (B) enter into any new Contract that, if entered into prior to the date of this Agreement, would constitute a Company Contract, in each case other than in the Ordinary Course of Business; provided, however, this clause (xvii) shall not prohibit the Company or any Company Subsidiary from taking any actions expressly permitted by any clause of this Section 5.01(a) or required to be taken by any other provision of this Agreement; (xviii) sell, license, sublicense, covenant not to xxx under, abandon, assign, transfer, disclose, create any Lien on (other than Permitted Liens) or otherwise grant any rights under any Owned Company Intellectual Property that is material, individually or in the aggregate, material to the Company and the Company Subsidiaries Subsidiaries, taken as a whole, or waive amend, renew, terminate, sublicense, assign or otherwise modify any claims or rights of substantial value; (xiii) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization license or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of agreement by the Company or any Company Subsidiary or otherwise limiting the freedom of with respect to any licensed Owned Company Intellectual Property that is material to the Company or any and the Company Subsidiary to compete Subsidiaries, taken as a whole, in any line each case other than in the Ordinary Course of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the MergerBusiness; (xviixix) make cancel, terminate or allow to lapse without a commercially reasonable substitute policy therefor, or amend in any change in personnel relating to key employeesmaterial respect or enter into, operations any insurance policy, other than the renewal of an existing insurance policy or financea commercially reasonable substitute therefor; (xx) sell or acquire any real property; (xxi) enter into or consummate any Related Party Transaction; or (xviiixxii) authorizeauthorize any of, or resolve, commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(aforegoing actions. (b) shall be limited by and subject The parties agree to take the provisions of Section 10.07actions described in Schedule 5.01(b).

Conduct of Business by the Company. Except for matters contemplated by this Agreement, During the period from the date of this Agreement to the Effective Time, except (i) as consented to in writing by Parent, (ii) as specifically contemplated by this Agreement or (iii) as disclosed on SECTION 4.01(a) OF THE COMPANY DISCLOSURE SCHEDULE (with specific reference to the subsection of this Section 4.01 to which the information stated in such disclosure relates and such other subsections of this Section 4.01 to the extent a matter is disclosed in such a way as to make its relevance to the information called for by such other subsection readily apparent), the Company shall, and shall cause each of the Company its Subsidiaries to, conduct its business carry on their respective businesses in the usual, regular and ordinary course of business consistent with past practice and use their commercially reasonable efforts to comply with all applicable laws, rules and regulations and, to the extent consistent therewith, use their commercially reasonable efforts to preserve intact its assets, Intellectual Property, business organization their assets and technology and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Timethem in all material respects. In addition, and without Without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(abut subject to clauses (i), (ii) of the Company Disclosure Schedule, from the date of this Agreement to the Effective Timeand (iii) above, the Company shall not, and shall not permit any Company Subsidiary to do any of the following without the prior written consent of Parentits Subsidiaries to: (i) (Aw) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property stock or otherwiseproperty) in respect of, any of its capital stock except for cash dividends payable to the Company or a Subsidiary of the Company by a Subsidiary of the Company, (x) purchase, redeem or otherwise acquire any shares of capital stock or any other securities of the Company or any Company Subsidiary, other than dividends its Subsidiaries (except in connection with and distributions by a direct or indirect wholly owned subsidiary consistent with the terms of the Company Stock Plans or the Benefit Plans, as in effect on the date hereof) or any options, warrants, calls or rights to its parentacquire any such shares or other securities, (By) split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary of its other securities or (Cz) purchaseliquidate, redeem merge or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or consolidate with any other securities thereof or any rights, options, warrants or calls to acquire any such shares or other securitiesperson; (ii) issue, deliver, sell, pledge, dispose of, grant, encumber or otherwise transfer or authorize the issuance, delivery, sale, pledge, transfer disposition, grant or otherwise encumber or dispose encumbrance of or subject to any Lien (A) any shares of its or any of its Subsidiaries' capital stock, (B) any Voting Company Debt other equity or other voting securities, (C) interests or any securities convertible into into, or exchangeable for, or any options, warrants warrants, calls or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other rights (other than (1) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding and the other rights and agreements set forth in SECTION 3.01(c) OF THE COMPANY DISCLOSURE SCHEDULE that are in existence on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up OptionAgreement); (iii) amend the Company Charter, Company Byor propose to amend its or any of its Subsidiaries' articles of incorporation or by-laws (or other comparable charter or similar organizational documents); (iv) directly or indirectly acquire or agree to acquire, acquire (A) by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of all or a substantial portion of the assets or stock of, or in any other manner, any assets constituting a business or any corporation, partnership, joint venture or association or other entity or division thereof, or any direct or indirect interest in any of the foregoing, or (B) any assets other than purchases of assets (including, subject to clause (vii) below, capital assets) in the ordinary course of business consistent with past practice; (v) directly or indirectly sell, lease, license, sell and lease back, mortgage or otherwise encumber or subject to any lien or otherwise dispose of any of its properties or assets or any interest therein, except (i) sales of assets or any interest therein in the ordinary course of business consistent with past practice, (ii) pledges or encumbrances pursuant to existing borrowing arrangements or (iii) any such transaction not otherwise permitted with an aggregate value not to exceed $5,000,000; (vi) (x) repurchase, accelerate, prepay or incur any indebtedness or guarantee any indebtedness of another person or issue or sell any acquisition by debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing (PROVIDED that the Company may incur indebtedness for borrowed money under its existing credit facilities up to an aggregate amount of $30,000,000), (y) make any loans, advances or capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly-owned Subsidiary of the Company, or (z) enter into any assets that are material hedging agreement or other financial agreement or arrangement designed to protect the Company against fluctuations in interest rates, commodities prices, currency exchange rates or otherwise, except, in the cases of clauses (x), (y) and (z) above, agreements or arrangements entered into in the Company Subsidiariesordinary course of business consistent with past practice; (vvii) incur or commit to incur any capital expenditures in an aggregate amount exceeding $10,000,000; (viii) pay, discharge, settle or satisfy any litigation, claims (including claims of Shareholders), liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise) in an aggregate amount exceeding $5,000,000, other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or as required by their terms as in effect on the date of this Agreement of claims, liabilities or obligations reflected, reserved against or otherwise disclosed in the most recent audited financial statements (or the notes thereto) of the Company included in the SEC Documents (for amounts not in excess of such reserves or as otherwise disclosed) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice, or 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 fail to enforce, or consent to any matter with respect to which its consent is required under, any confidentiality, standstill or similar agreement to which the Company or any Subsidiary of the Company is a party; (ix) (A) grant to any current or former employee, officer, director, officer consultant or employee independent contractor of the Company or any Subsidiary of the Company Subsidiary any increase in cash compensation or pay any bonus, except for increases of cash compensation other than in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Scheduleconsistent with past practice, (B) grant to any such current or former employee, officer, director, officer consultant or employee independent contractor of the Company or any Subsidiary of the Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (ED) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of businessbusiness consistent with past practice, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement Plan, other than pursuant to the provisions of Section 5.04 hereof, including any payment of cash pursuant thereto or (FE) amend or modify or grant any Company Stock Option, in each case above other than (i) changes that are required by applicable law or (ii) to satisfy obligations existing as of the date hereof; (vix) make fail to maintain existing insurance at levels substantially comparable to current levels; (xi) transfer or license to any change person or entity or otherwise extend, amend or modify any rights to the Intellectual Property rights of the Company and its Subsidiaries other than in the ordinary course of business consistent with past practice; PROVIDED that in no event shall the Company license on an exclusive basis or sell any Intellectual Property rights of the Company or its fiscal yearSubsidiaries; (xii) enter into or amend any agreements pursuant to which any person is granted exclusive marketing, revalue manufacturing or other rights with respect to any assets material Company product, process or make any change technology, other than in its financial or tax accounting methods, principles or practices, the ordinary course of business consistent with past practice; (xiii) except insofar as may have been be required by a change in GAAP or Lawgenerally accepted accounting principles of the applicable jurisdiction or changes in applicable law, make any changes in accounting methods, principles or practices; (viixiv) except licenses of Company Intellectual Property take any action that could reasonably be expected to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume or guarantee any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage result in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent representation and warranty of accelerating the Company set forth in this Agreement that is qualified as to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quartersmateriality becoming untrue, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables such representation and warranty that would otherwise be expected (based on past practice) to be made is not so qualified becoming untrue in subsequent fiscal quarters, any material respect or (C) any practice which would have condition to the effect of postponing to subsequent fiscal quarters payments by Offer or the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made Merger not being satisfied except as provided in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of businessSection 4.02(b); (xxv) incur or agree to incur take any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise)action, other than the payment, discharge, settlement or satisfaction, reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial valueprocedures; (xiiixvi) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, modify or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree consent to the termination of any material Material Contract, except in or amend, waive, modify or consent to the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant termination of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent Company's or any of its affiliates after the consummation of the Offer or the MergerSubsidiaries material rights thereunder; (xvii) make commence any change in personnel relating to key employees, operations or financematerial litigation; or (xviii) authorizeauthorize any of, commit or commit, resolve or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, During the period from the date of this Agreement to the Effective Time, except as set forth in Section 4.01(a) of the Company Disclosure Schedule or as consented to in writing in advance by Parent or as otherwise expressly permitted or required by this Agreement, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct carry on its business in the usual, regular and ordinary course of business and consistent with past practice prior to the Closing and, to the extent consistent therewith, use all reasonable best efforts to preserve intact its assetscurrent business organizations, Intellectual Propertykeep available the services of its current officers, business organization employees and consultants and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Timeit. In addition, addition to and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of during the Company Disclosure Schedule, period from the date of this Agreement to the Effective Time, except as otherwise set forth in Section 4.01(a) of the Company Disclosure Schedule or as otherwise expressly permitted or required pursuant to this Agreement, the Company shall not, and shall not permit any Company Subsidiary to do any of the following its Subsidiaries to, without the Parent’s prior written consent of Parentconsent: (i) (Ax) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property stock or otherwiseproperty) in respect of, any of its capital stock of the Company or any Company Subsidiarystock, other than dividends and or distributions by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parentthe Company or a wholly owned Subsidiary of the Company, (By) adjust, split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary or (Cz) purchase, redeem or otherwise acquire any shares of its capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securities, except for purchases, redemptions or other acquisitions of capital stock or other securities (1) required by the terms of the Company Stock Plan or (2) required by the terms of any plans, arrangements or Contracts existing on the date hereof between the Company or any of its Subsidiaries and any director or employee of the Company or any of its Subsidiaries (to the extent complete and accurate copies of which have been heretofore delivered to Parent); (ii) issue, deliver, sell, grant, pledge, transfer pledge or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) securities or any securities convertible into or exchangeable exercisable for, or any optionsrights, warrants or rights of any kind options to acquire, any such shares, Voting Company Debt, voting securities or convertible securities, or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights rights, restricted stock units, deferred stock units or stock-stock based performance units, including pursuant to Contracts as in effect on the date hereof (other than (1) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on as of the date of this Agreement and in accordance with their current terms and (2) as of the issuance date of Company Common Stock pursuant to the Top-Up Optionthis Agreement); (iii) enter into any Contract, understanding or arrangement with respect to the sale, voting, registration or repurchase of Company Common Stock or the capital stock of any Subsidiary of the Company; (iv) amend the Company Charter, Certificate or the Company By-laws Bylaws or other comparable charter or organizational documentsdocuments of any of the Company’s Subsidiaries; (ivv) directly or indirectly acquire or agree to acquire, (x) by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, by making an investment in or capital contribution to, or by any other manner, any person or any acquisition by the Company division, business or any Company Subsidiary equity interest of any assets that are material person or (y) any assets, rights or properties except for (1) capital expenditures, which shall be subject to the Company and the Company Subsidiaries; limitations of clause (vvii) below, (A2) grant to any current purchases of components, raw materials or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation supplies in the ordinary course of business consistent with past practice and (3) other acquisitions, investments or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations capital contributions not exceeding $10 million in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Optionaggregate; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (viix) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor)pledge, license dispose of, transfer, lease, license, or otherwise dispose of encumber or subject to any Lien any properties material properties, rights or assets of the Company or any of its Subsidiaries, except (1) sales, pledges, dispositions, transfers, leases, licenses or encumbrances required to be effected prior to the Appointment Time pursuant to existing Contracts, or non-material leases or licenses in the ordinary course of business consistent with past practice and (2) sales, pledges, dispositions, transfers, leases, licenses or encumbrances of (A) assets or properties of the Company or any of its Subsidiaries having a value, individually or value not to exceed $2 million in the aggregate, (B) inventory which is obsolete or no longer used or useful in excess the conduct of $100,000the Company’s or any of its Subsidiaries’ business in the ordinary course of business consistent with past practice or (C) finished goods in the ordinary course of business consistent with past practice; or (y) unless otherwise permitted under another clause of this Section 4.01(a), enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly owned Subsidiary of the Company and the Company or another wholly owned Subsidiary of the Company; (viiivii) (Ax) incurredeem, assume repurchase, prepay, defease, cancel, incur or guarantee otherwise acquire, or modify in any material respect the terms of, any indebtedness for borrowed moneymoney or assume, guarantee or endorse, or otherwise become responsible for, any such indebtedness of another person, issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another personits Subsidiaries, enter into any “keep well” or other agreement Contract to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances foregoing (other than advances to nonshort-officer employees term borrowings in the ordinary course of businessbusiness consistent with past practice) or capital contributions to, (y) make any loans or investments in, advances to any other person, other than to employees in respect of travel expenses in the ordinary course of business consistent with past practice, which would result in the aggregate principal amount of all of the outstanding foregoing loans and advances of the Company and its Subsidiaries exceeding $3 million; (viii) make any new capital expenditure or any direct or indirect wholly owned subsidiary expenditures exceeding the amounts set forth in Section 4.01(a)(viii) of the CompanyCompany Disclosure Schedule; (ix) engage in (A) any trade loading practices except as required by Law or any other promotional sales or discount activity with any customers or distributors with any intent judgment by a court of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarterscompetent jurisdiction, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (Av) pay, discharge, settle or satisfy any material claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities disclosed, reflected or reserved against in, or contemplated by, in the most recent consolidated audited financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents Document filed with the SEC prior to the date of this Agreement (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice provided that such settlements shall not involve in excess of $2 million in the aggregate, (w) waive or assign any claims or rights of material value, (x) waive any benefits of, or agree to modify in any respect, or, subject to the terms hereof, knowingly fail to enforce, or consent to any matter with respect to which consent is required under, any standstill or similar Contract to which the Company or any of its Subsidiaries is a party or (y) waive any material benefits of, or agree to modify in any material respect, or, subject to the terms hereof, knowingly fail to enforce in any material respect, or consent to any matter with respect to which consent is required under, any material confidentiality or similar Contract to which the Company or any of its Subsidiaries is a party; (x) (x) enter into, materially modify, terminate, cancel or fail to renew any Contract that is or would be a Material Contract, or waive, release or assign any material rights or claims thereunder or (y) enter into, modify, amend or terminate any Contract or waive, release or assign any material rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned would reasonably be expected to (A) have a Material Adverse Effect, (B) cancel impair in any indebtedness material respect the ability of the Company or its Subsidiaries to perform its obligations under this Agreement, (C) prevent or materially impede, interfere with, hinder or delay the consummation of any of the transactions contemplated by this Agreement or (D) impair in any material respect the ability of the Company and its Subsidiaries to conduct their business as currently conducted; (xi) enter into any material Contract to the extent consummation of the transactions contemplated by this Agreement or compliance by the Company with the provisions of this Agreement could reasonably be expected to conflict with, or result in a violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, modification, cancellation or acceleration of any obligation or to the loss of a benefit under, or result in the creation of any Lien in or upon any of the properties, rights or other assets of the Company or any of its Subsidiaries under, or require Parent or any of its Affiliates to license or transfer any of its Intellectual Property or other material assets under, or give rise to any increased, additional, accelerated, or guaranteed right or entitlements of any third party under, or result in any material alteration of, any provision of such Contract; (xii) except as required (x) by applicable Law, (y) to comply with any Company Benefit Plan, Company Benefit Agreement or other Contract entered into prior to the date hereof or (z) as may be required to avoid adverse treatment under Section 409A of the Code, (A) adopt, enter into, terminate or amend (I) any collective bargaining Contract or Company Benefit Plan or (II) any Company Benefit Agreement or other Contract, plan or policy involving the Company or any of its Subsidiaries and Company Personnel, except amendments in the ordinary course of business consistent with past practice with respect to employees of the Company or its Subsidiaries who are not Key Personnel, (B) grant any severance or termination pay or increase the compensation of any Key Personnel, or grant any severance or termination pay or increase the compensation of any Company Personnel, excluding Key Personnel, other than in the ordinary course of business, consistent with past practice, (C) remove any existing restrictions in any Company Benefit Agreements, Company Benefit Plans or awards made thereunder, (D) make any deposits or contributions of cash or other property to, or take any action to fund or in any other way secure the payment of compensation or benefits under, any Company Benefit Plan or Company Benefit Agreement, (E) take any action to accelerate the vesting or payment of any compensation or benefit under any Company Benefit Plan or Company Benefit Agreement or awards made thereunder, (F) materially change any actuarial or other assumption used to calculate funding obligations with respect to any Company Pension Plan or change the manner in which contributions to any Company Pension Plan are made or the basis on which such contributions are determined or (G) hire or terminate (other for cause) any employee who is, or would upon hire, be classified as a member of Key Personnel; (xiii) except as required by GAAP and as advised by the Company’s regular independent public accountant, revalue any material assets of the Company or any of its Subsidiaries or make any change in Tax or accounting methods, principles or practices; (xiv) perform any quarterly or other interim financial reporting close process in a manner that is materialdiffers from that used for its year-end close process; (xv) write up, write down or write off the book value of any assets, individually or in the aggregate, to for the Company and the Company and/or its Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entitybusiness consistent with past practice and not in excess of $1 million; (xvi) agree make any material changes or modifications to any covenant of the Company pricing policy or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company investment policy or any Company Subsidiary or otherwise limiting the freedom method of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Mergerdoing business; (xvii) make create any change in personnel relating to key employees, operations or finance; ornew Subsidiaries; (xviii) authorizetake any action that would cause any representation or warranty of the Company in this Agreement to become untrue or not accurate in a manner such that the condition set forth in clause (c) of Annex A would occur; (xix) authorize any of, commit or commit, resolve, propose or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, (a) During the period from the date of this Agreement to the Effective TimeTime of the Merger (except as otherwise expressly contemplated by the terms of this Agreement or agreed to in writing by Parent), the Company shall, and shall cause each of the Company its Subsidiaries to, conduct its business act and carry on their respective businesses in the usual, regular and ordinary course of business consistent with past practice and use all its and their respective reasonable best efforts to preserve substantially intact its assetstheir current business organizations, Intellectual Property, business organization keep available the services of their current officers and employees and preserve their relationships with customers, supplierssupplies, licensors, licensees, advertisers, distributors and others having significant business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Time. In addition, and without Without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of during the Company Disclosure Schedule, period from the date of this Agreement to the Effective TimeTime of the Merger, except as otherwise expressly contemplated by the terms of this Agreement, the Company Disclosure Schedule or agreed to in writing by Parent, the Company shall not, and shall not permit any Company Subsidiary to do any of the following without the prior written consent of Parentits Subsidiaries to: (i) (Ax) except for the payment of dividends on the Company Preferred Stock (by the issuance of shares of Company Common Stock solely to the extent permitted pursuant to the terms of this Agreement), declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any of its capital stock of the Company or any Company Subsidiarystock, other than dividends and distributions by a direct or indirect wholly wholly-owned subsidiary domestic Subsidiary of the Company to its parent, (By) split, combine or reclassify any of capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of capital stock of the Company or any Company Subsidiary Subsidiary, or (Cz) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary of its Subsidiaries or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securities; (ii) authorize for issuance, issue, deliver, sell, grant, pledge, transfer pledge or otherwise encumber or dispose of or subject to any Lien (A) any such shares of its capital stockstock or the capital stock of any of its Subsidiaries, (B) any Voting Company Debt or other voting securities, (C) securities or any securities convertible into or exchangeable forinto, or any optionsrights, warrants or rights of any kind options to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or any other securities or equity equivalents (D) any “phantom” stockincluding, “phantom” stock rightswithout limitation, stock appreciation rights or stock-based performance unitsrights), other than (1) the issuance of Company Common Stock upon (a) the exercise of Company Stock Options outstanding awarded but unexercised on the date of this Agreement and in accordance with their current terms and present terms, or (2b) the issuance conversion of the Company Common Stock pursuant to the Top-Up OptionPreferred Stock; (iii) amend the Company CharterCertificate of Incorporation, Company By-laws or other comparable charter or organizational documentsdocuments of the Company or any Subsidiary; (iv) directly or indirectly acquire or agree to acquire, acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any equity interest in, business of or a substantial portion of the assets of, any person or any acquisition by the Company corporation, partnership, joint venture, association or any Company Subsidiary of any assets that are material to the Company and the Company Subsidiariesother business organization or division thereof; (v) (A) grant sell, lease, license, mortgage or otherwise encumber or subject to any current Lien or former director, officer otherwise dispose of any of its properties or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonusassets, except for increases sales of cash compensation inventory and receivables in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Optionconsistent with past practice; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume incur any Indebtedness or guarantee any indebtedness for borrowed moneyIndebtedness of another Person or amend, terminate or seek a waiver with respect to any existing agreement of the Company evidencing Indebtedness of the Company, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiaryof its Subsidiaries, guarantee any debt securities of another personPerson, enter into any “"keep well” " or other agreement to maintain any financial statement condition of another person Person or enter into to any arrangement having the economic effect of any of the foregoing, except for intercompany Indebtedness between the Company and its wholly-owned Subsidiaries or between such wholly-owned Subsidiaries, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other personPerson; (vii) acquire or agree to acquire any assets, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage inventory in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of businessbusiness consistent with past practice, or make or agree to make any capital expenditures; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (Aviii) pay, discharge, settle discharge or satisfy any claimsclaims (including claims of stockholders), liabilities, liabilities or obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than except for the payment, discharge, settlement discharge or satisfaction, satisfaction of (x) liabilities or obligations in the ordinary course of business consistent with past practice or in accordance with their termsterms as in effect on the date hereof or (y) claims settled or compromised to the extent permitted by Section 4.01(a)(xii), of liabilities reflected or reserved against inor, except as set forth in the Company Disclosure Schedule, waive, release, grant, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel transfer any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial valuematerial value or modify or change in any material respect any existing material license, lease, contract or other document; (xiiiix) adopt a plan of complete or agreement of, partial liquidation or resolutions providing for or authorizing, complete authorizing such a liquidation or partial liquidation, a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization reorganization; (x) enter into or amend any collective bargaining agreement; (xi) change any material accounting principle used by it, except as required by generally accepted accounting principles as applied in the United States; (xii) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (xiii) engage in any transaction with, or enter into any agreement, arrangement, or understanding with, directly or indirectly, any of the Company's affiliates (other than for the liquidation Subsidiaries of any Company Subsidiary into the Company); (xiv) make, enter into or renew, extend, amend, modify, or waive transfer to any material provisions of Person any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of businessits Intellectual Property; (xv) institute, settle, enter into or agree amend any agreement pursuant to settle which any action, claim or proceeding pending or threatened before any arbitrator, court other party is granted exclusive marketing or other Governmental Entityexclusive rights of any type or scope with respect to any of its products or technology; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber make any material assets Tax election or that would so limit the freedom of Parent settle or compromise any of its affiliates after the consummation of the Offer material federal, state, local or the Merger;foreign Tax liability; or (xvii) make any change in personnel relating to key employees, operations or finance; or (xviii) authorize, or commit or agree to take take, any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting of the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries), the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, from Pending the date of this Agreement Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the Company shall, and shall cause each business of the Company Subsidiaries to, conduct its business shall be conducted only in the usual, regular and ordinary course of business and use all reasonable efforts to preserve intact its assets, Intellectual Property, business organization and relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(acourse; (b) of the Company Disclosure Schedule, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to do any of the following without the prior written consent of Parent: (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (Aii) amend its Articles of Incorporation or Bylaws; or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividends ondividend payable in cash, stock or property or make any other distributions (whether in cash, stock, property or otherwise) in distribution with respect of, any of capital stock of the Company or any Company Subsidiary, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (B) split, combine or reclassify any of capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of capital stock of the Company or any Company Subsidiary or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls to acquire any such shares or other securitiesstock; (iic) issue, deliver, sell, grant, pledge, transfer the Company shall not (i) issue or otherwise encumber or dispose of or subject agree to issue any Lien (A) any additional shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable forof, or any options, warrants or rights of any kind to acquireacquire any shares of, Company Common Stock; (ii) acquire or dispose of any such sharesfixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, Voting Company Debtagreement, voting securities commitment or convertible or exchangeable securities arrangement with respect to any of the foregoing; or (Dv) except as contemplated by this Agreement, enter into any “phantom” stockcontract, “phantom” stock rightsagreement, stock appreciation rights commitment or stock-based performance unitsarrangement to dissolve, merge, consolidate or enter into any other than (1) the issuance of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Optionmaterial business combination; (iiid) amend the Company Chartershall use its best efforts to preserve intact the business organization of the Company, Company By-laws or other comparable charter or organizational documentsto keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (ive) directly the Company will not, nor will it authorize any director or indirectly acquire authorize or agree to acquirepermit any officer or employee or any attorney, accountant or other representative retained by merging or consolidating withit to, make, solicit, encourage any inquiries with respect to, or by purchasing or by engage in any other mannernegotiations concerning, any equity interest inAcquisition Proposal (as defined below). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business of or a substantial portion of the assets of, any person or any acquisition by combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company Subsidiary will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any person conducted heretofore with respect to any of any assets that are material to the foregoing; and (f) the Company and will not enter into any new employment agreements with any of its officers or employees or grant any increases in the Company Subsidiaries; (v) (A) grant to any current or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for benefits of its officers and employees other than increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into consistent with past practice or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume or guarantee any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt a employee benefit plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or finance; or (xviii) authorize, commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries), the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07arrangement.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, During the period from the date of this Agreement to the Effective Time, except as consented to in writing in advance by Parent or as otherwise specifically required by this Agreement or Law and except as set forth in Section 5.1(a) of the Company Disclosure Letter, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct carry on its business in the usual, regular and ordinary course of business consistent with past practice and use all commercially reasonable efforts to preserve intact its business organization, preserve its assets, Intellectual Propertyrights and properties in good repair and condition, business organization keep available the services of its current officers, employees and consultants and preserve its goodwill and its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Timeit. In addition, addition to and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of during the Company Disclosure Schedule, period from the date of this Agreement to the Effective Time, except as set forth in Section 5.1(a) of the Company Disclosure Letter or as specifically required by this Agreement or Law, the Company shall not, and shall not permit any Company Subsidiary to do any of the following its Subsidiaries, without the Parent’s prior written consent, such consent of Parentnot to be unreasonably withheld, delayed or conditioned, to: (i) (A1) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property stock or otherwiseproperty) in respect of, any of its capital stock of the Company or any Company Subsidiaryother equity interests, other than except for dividends and distributions by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent, (B2) splitpurchase, combine redeem or reclassify any otherwise acquire shares of capital stock or other equity interests of the Company or its Subsidiaries or any Company Subsidiary options, warrants, or rights to acquire any such shares or other equity interests or (3) split, combine, reclassify or otherwise amend the terms of any of its capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls to acquire any such shares or other securitiesequity interests; (ii) issue, deliver, sell, grant, pledge, transfer pledge or otherwise encumber or dispose of or subject to any Lien (A) Encumbrance any shares of its capital stock, (B) any Voting Company Debt stock or other voting securities, (C) equity interests or any securities convertible into into, exchangeable for or exchangeable forexercisable for any such shares or other equity interests, or any optionsrights, warrants or rights of any kind options to acquire, any such sharesshares or other equity interests, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stockstock appreciation rights, “phantom” stock rights, stock appreciation rights or stock-based performance units, rights to receive shares of capital stock of the Company on a deferred basis or other rights linked to the value of Shares, including pursuant to Contracts as in effect on the date hereof (other than (1) the issuance of Company Common Stock Shares upon the exercise conversion of Company Stock Options the Convertible Notes outstanding on the date of this Agreement and Measurement Date in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Optionas in effect on such date); (iii) amend the Company Charteror otherwise change, Company Byor authorize or propose to amend or otherwise change, its certificate of incorporation or by-laws (or other comparable charter or similar organizational documents) which is adverse in any manner to the transactions contemplated hereby; (iv) directly or indirectly acquire or agree to acquire, acquire (1) by merging or consolidating with, or by purchasing or by any other manner, any a substantial equity interest in, business of in or a substantial portion of the assets of, making an investment in or loan or capital contribution to or in any person other manner, any corporation, partnership, association or any acquisition by the Company other business organization or any Company Subsidiary of division thereof or (2) any assets that are otherwise material to the Company and the Company its Subsidiaries; (v) , other than (A) grant to any current or former director, officer or employee parts and accessories necessary for the ongoing operation of the business of the Company or any Company Subsidiary any increase other assets included in compensation or pay any bonusinventory, except for increases of cash compensation in the ordinary course of business consistent with past practice, (B) acquisition of assets in order to maintain and sustain the Company’s and its Subsidiaries’ drilling rigs, production equipment or rental equipment in the ordinary course of business consistent with past practice or (C) pursuant to Material Contracts as in effect on the date of this Agreement; (v) directly or indirectly sell, lease, license, sell and leaseback, abandon, mortgage or otherwise encumber or subject to any Encumbrance or otherwise dispose in whole or in part of any of its properties, assets or rights or any interest therein, except (1) sales of inventory and obsolete equipment in the ordinary course of business consistent with past practice or (2) sales of any of those assets held for sale by the Company and set forth on Section 5.1(a)(v) of the Company Disclosure Letter (“Held for Sale Assets”); (vi) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization; (vii) (1) incur, create, assume or otherwise become liable for, or repay, redeem, retire, repurchase or prepay, any Indebtedness, or amend, modify or refinance any Indebtedness other than (x) accrued interest under the Senior Debt and Convertible Notes, (y) pursuant to Section 3.09 of the Senior Debt Indenture or (z) draws in an amount no greater than $5,000,000 in the aggregate or the issuance of letters of credit under the ABL Credit Facility in the ordinary course of business consistent with past practice; (2) make any loans, advances or capital contributions to, or investments in, any other Person, other than the Company or any direct or indirect wholly owned Subsidiary of the Company and except with respect to advancement or indemnification of expenses or losses incurred by current or former directors or officers of the Company or its Subsidiaries as required by the organizational documents of the Company or any Subsidiary in effect on the date hereof; (3) amend or supplement the Senior Debt Indenture or the Convertible Notes Indenture in any manner which adversely impacts the Mergers or imposes any liability upon Parent or its Subsidiaries (including the Surviving Company and its Subsidiaries after the Mergers); or (4) pay any Designated Company Expenses; (viii) except as specified in the capital expenditure budget set forth in Section 5.1(a)(viii) of the Company Disclosure Letter, incur or commit to incur any capital expenditure in excess of $500,000 individually or capital expenditures in excess of 120% of the capital expenditures provided for in such budget in the aggregate, or authorization or commitment with respect thereto, other than to repair damage resulting from insured casualty events where there is a reasonable basis for a claim of insurance or as necessary to address emergencies, whether caused by war, terrorism, weather events, public health events (including pandemics), outages or otherwise; (1) pay, discharge, settle or satisfy any claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or as required by their terms as in effect on the date of this Agreement of claims, liabilities or obligations reflected or reserved against in the most recent audited financial statements (or the notes thereto) of the Company included in the Company SEC Documents filed prior to the date hereof (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice, (2) cancel any material Indebtedness owed to the Company or any of its Subsidiaries, or (3) waive, release, grant or transfer any right of material value; (x) except in the ordinary course of business consistent with past practice where such Contract (1) provides for a term no longer than twelve months from the date of execution, (2) is terminable by the Company or any of its Subsidiaries without penalty upon 30 days’ notice or less or (3) is in connection with any matter to the extent required under employment agreements such matter is permitted by any other clause of this Section 5.1(a) and does not relate to any matter otherwise prohibited by this Section 5.1(a), (A) modify, amend, terminate, cancel or extend any Material Contract or (B) enter into any Contract that if in effect on the date hereof and set forth in Section 4.15 would be a Material Contract; (xi) commence any Action (other than an Action as a result of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of an Action commenced against the Company or any Company Subsidiary of its Subsidiaries), or compromise, settle or agree to settle any increase in severance or termination pay, except Action (including any Action relating to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit this Agreement or Company Benefit Planthe transactions contemplated hereby) other than compromises, settlements or make any material determinations not agreements in the ordinary course of businessbusiness consistent with past practice that involve only the payment of money damages not in excess of $250,000 individually or $500,000 in the aggregate, under in any collective bargaining agreement case without the imposition of any equitable relief on, or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Optionthe admission of wrongdoing by, the Company; (vixii) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP GAAP, or Lawrevalue any of its material assets; (viixiii) except licenses make, change, or revoke any material Tax election, policy or practice, file any material amended Tax Return, enter into any material “closing agreement” within the meaning of Company Intellectual Property Section 7121 of the Code (or any similar provision of state, local or non-U.S. applicable Law), surrender any right to customers claim a material Tax refund or any portion thereof, settle or compromise any material Tax claim or liability, incur any liability for Taxes other than in the ordinary course of business, directly waive or indirectly sell, lease (as lessor), license extend any statute of limitations in respect of Taxes or otherwise dispose period within which an assessment or reassessment of or subject to any Lien any properties or assets with a value, individually or material Taxes may be issued other than in the aggregateordinary course of business consistent with past practice, prepare or file any Tax Return, in excess a manner inconsistent with past practices, elections, and methods of $100,000the Company and its Subsidiaries, grant any power of attorney with respect to Taxes; or enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, Tax holiday or any closing or other similar agreement, or apply for Tax-related relief under any Pandemic Response Law or take any action that could prevent Parent from applying for Tax-related relief under any Pandemic Response Law after the Closing Date, in each case relating to Taxes imposed on the Company or its Subsidiaries; (viiixiv) change its fiscal year; (Axv) incurexcept to the extent required under the terms of any Company Plan as in effect on the date hereof, assume (1) grant any current or guarantee former director, officer, employee or independent contractor any indebtedness for borrowed moneyincrease in compensation, issue or sell any debt securities or warrants bonus or other rights benefits, or grant any type of compensation or benefits to acquire any debt securities current or former director, officer, employee or independent contractor not previously receiving or entitled to receive such type of compensation or benefit, or pay any bonus of any kind or amount to any current or former director, officer, employee or independent contractor, (2) grant or pay to any current or former director, officer, employee or independent contractor any severance, change in control or termination pay, or approve any modifications thereto or increases therein, (3) pay any benefit or grant or amend any award (including in respect of stock options, stock appreciation rights, performance units, restricted stock or other stock-based or stock-related awards or the removal or modification of any restrictions in any Company Plan or awards made thereunder) except as required to comply with any applicable Law or any Company Plan in effect as of the date hereof, (4) adopt or enter into any collective bargaining agreement or other labor union contract, (5) take any action to accelerate the vesting, funding or payment of any compensation or benefit under any Company Plan or other Contract or (6) adopt any new employee benefit or compensation plan or arrangement or amend, modify or terminate any existing Company Plan, other than as required by applicable Law; (xvi) hire or engage any (1) employees at the executive level or higher or (2) other than in the ordinary course of business consistent with past practice, any other employees or other service providers; (xvii) terminate any employees of the Company or its Subsidiaries or otherwise cause any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any employees of the foregoingCompany or its Subsidiaries to resign, or (B) make any loans, advances (in each case other than advances to (1) non-officer executive employees in the ordinary course of businessbusiness consistent with past practice or (2) for cause or capital contributions topoor performance (documented in accordance with the Company’s past practices); (xviii) conduct a “plant closing” or “mass layoff” (as those terms are defined under the WARN Act); (xix) enter into any collective bargaining agreement with any labor organization; (xx) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised provisions regarding insurance coverage with respect to the assets, operations and activities of the Company and its Subsidiaries as currently in effect; (xxi) renew or investments inenter into any non-compete, exclusivity, non-solicitation or similar agreement that would restrict or limit, in any other personmaterial respect, other than to the operations of the Company or any direct or indirect wholly owned subsidiary of the Companyits Subsidiaries; (ixxxii) engage in enter into any new line of business outside of its existing business; (Axxiii) any trade loading practices or any other promotional sales accelerate the collection of or discount activity with any customers accounts receivable, delay the payment of accounts payable or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade defer expenses, or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activityreduce inventories, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, except in the ordinary course of business or in accordance consistent with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial valuepast practice; (xiiixxiv) adopt a plan enter into any new lease or agreement ofamend the terms of any existing lease of real property that would require payments over the remaining term of such lease in excess of $100,000, or resolutions providing for provide any Person the right to use the Owned Real Property or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Companyportion thereof; (xivxxv) make, enter into take any action (or renew, extend, amend, modify, omit to take any action) if such action (or waive omission) would reasonably be expected to result in any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree the conditions to the termination of any material Contract, except Mergers set forth in Article VI not being satisfied by the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or financeOutside Date; or (xviiixxvi) authorizeauthorize any of, commit or commit, resolve or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, from Pending Closing. After the date of this Agreement hereof and prior to the Effective TimeClosing Date, unless Purchaser shall otherwise agree in writing, Compost shall cause the Company shall, and shall cause each of the Company Subsidiaries to, : (a) conduct its business businesses in the usual, regular ordinary and ordinary usual course of business and use all reasonable efforts to preserve intact its assets, Intellectual Property, business organization and relationships consistent with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(apast practice; (b) of the Company Disclosure Schedule, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to do any of the following without the prior written consent of Parent: (i) amend or propose to amend its charter or bylaws, (Aii) split, combine, reorganize, reclassify, recapitalize or take any similar action with respect to its outstanding capital stock or (iii) declare, set aside or pay any dividend or distribution payable in stock or property other than cash dividends onused to pay the working capital needs and indebtedness of Compost and the amount of any indebtedness for borrowed money of Compost to the Company at Closing; (c) not issue, sell, pledge or dispose of, or make any other distributions (whether in cashagree to issue, stocksell, property pledge or otherwise) in respect dispose of, any of capital stock of the Company or any Company Subsidiary, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (B) split, combine or reclassify any of capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect additional share of, in lieu of or in substitution for, shares of capital stock of the Company or any Company Subsidiary or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls to acquire any such shares or other securities; (ii) issue, deliver, sell, grant, pledge, transfer or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquireacquire any share of, its capital stock of any such shares, Voting Company Debt, voting class or any debt or equity securities or convertible into or exchangeable securities or (D) any “phantom” for such capital stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1) the issuance of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Option; (d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than up to $4 million in financing, (ii) redeem, purchase, acquire or offer to redeem, purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, (iii) amend the Company Charter, Company By-laws or other comparable charter or organizational documents; (iv) directly or indirectly acquire or agree to acquire, by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, any person or make any acquisition by the Company or any Company Subsidiary of any assets that are material to the Company and the Company Subsidiaries; (v) (A) grant to any current or former director, officer businesses other than expenditures for fixed or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation capital assets in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend not exceeding $40,000 in any material respect any collective bargaining agreement instance or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or $100,000 in the aggregate, in excess (iv) sell, pledge, dispose of $100,000; (viii) (A) incur, assume or guarantee encumber any indebtedness for borrowed money, issue assets or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (businesses other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (Bv) cancel enter into any indebtedness that is materialcontract, individually agreement, commitment or in arrangement with respect to any of the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial valueforegoing; (xiiie) adopt a plan use all reasonable efforts to preserve intact its business organization and goodwill, keep available the services of its present officers and key employees, and preserve the goodwill and business relationships with customers and others having business relationships with it and not engage in any action, directly or agreement ofindirectly, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for with the liquidation of any Company Subsidiary into intent to adversely impact the Companytransactions contemplated by this Agreement; (xivf) makenot enter into or amend any employment, severance (except as provided in Schedule 5.13), special pay arrangement with respect to termination of employment or other similar arrangements or agreements with any directors, officers or key employees; (g) not adopt, enter into or renewamend any bonus, extendprofit sharing, amendcompensation, modifystock option, pension, retirement, deferred compensation, health care, employment or waive any material provisions other employee benefit plan, agreement, trust fund or arrangement for the benefit or welfare of any Contract employee or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contractretiree, except as required to comply with changes in the ordinary course of businessapplicable law or as contemplated hereunder; (xvh) institute, settle, or agree use commercially reasonable efforts to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entitymaintain with financially responsible insurance companies insurance on its tangible assets and its businesses in such amounts and against such risks and losses as are consistent with past practice; (xvii) agree to not make, change or revoke any covenant of the Company material Tax election or a Company Subsidiary not to compete make any material agreement or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or settlement regarding Taxes with any person taxing authority; (j) not make any change in the Company's financial, Tax or accounting methods, practices or policies, or in any area assumption underlying such a method, practice or policy; (k) use its commercially reasonable efforts to owncause the transfer of Environmental Permits (on the same terms and conditions), operate, sell, transfer, pledge or otherwise dispose of or encumber and any material assets or that would so limit the freedom of Parent or any of its affiliates after financial assurance required thereunder to Purchaser as may be necessary under applicable Environmental Laws in connection with the consummation of the Offer or transactions under this Agreement to allow Purchaser to conduct the Mergerbusiness of the Company, as currently conducted; (xviil) make not enter into or assume any change contracts or agreements having a value or imposing an obligation upon the Company in personnel excess of $40,000 annually or any contracts or agreements having a value or imposing an obligation on the Company that have remaining obligations in excess of $100,000, regardless of the annual payment; (m) maintain its books of account and records in the usual, regular and ordinary manner consistent with past policies and practice; (n) not compromise, settle, grant any waiver or release relating to key employeesor otherwise adjust any material litigation or claims of any nature whatsoever pending against the Company, operations or financeexcept for item2s 2 and 3 on Schedule 5.8; orand (xviiio) authorize, commit not take any action or agree omit to take any action, which action referred to or omission would result in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting a breach of any of the generality of Section 10.07 (Entire representations and warranties set forth in this Agreement; No Third-Party Beneficiaries), the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, from Pending the date of this Agreement Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the Company shall, and shall cause each business of the Company Subsidiaries to, conduct its business shall be conducted only in the usual, regular and ordinary course of business and use all reasonable efforts to preserve intact its assets, Intellectual Property, business organization and relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(acourse; (b) of the Company Disclosure Schedule, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to do any of the following without the prior written consent of Parent: (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (Aii) amend its Certificate of Incorporation or Bylaws; or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividends ondividend payable in cash, stock or property or make any other distributions (whether in cash, stock, property or otherwise) in distribution with respect of, any of capital stock of the Company or any Company Subsidiary, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (B) split, combine or reclassify any of capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of capital stock of the Company or any Company Subsidiary or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls to acquire any such shares or other securitiesstock; (iic) issue, deliver, sell, grant, pledge, transfer the Company shall not (i) issue or otherwise encumber or dispose of or subject agree to issue any Lien (A) any additional shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable forof, or any options, warrants or rights of any kind to acquireacquire any shares of, Company Common Stock; (ii) acquire or dispose of any such sharesfixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, Voting Company Debtagreement, voting securities commitment or convertible or exchangeable securities arrangement with respect to any of the foregoing; or (Dv) except as contemplated by this Agreement, enter into any “phantom” stockcontract, “phantom” stock rightsagreement, stock appreciation rights commitment or stock-based performance unitsarrangement to dissolve, merge, consolidate or enter into any other than (1) the issuance of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Optionmaterial business combination; (iiid) amend the Company Chartershall use its best efforts to preserve intact the business organization of the Company, Company By-laws or other comparable charter or organizational documentsto keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (ive) directly the Company will not, nor will it authorize any director or indirectly acquire authorize or agree to acquirepermit any officer or employee or any attorney, accountant or other representative retained by merging or consolidating withit to, make, solicit, encourage any inquiries with respect to, or by purchasing or by engage in any other mannernegotiations concerning, any equity interest inAcquisition Proposal (as defined below). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, "Acquisition Proposal" shall mean any proposal for a merger or other business of or a substantial portion of the assets of, any person or any acquisition by combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company Subsidiary will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any person conducted heretofore with respect to any of any assets that are material to the foregoing; and (f) the Company and will not enter into any new employment agreements with any of its officers or employees or grant any increases in the Company Subsidiaries; (v) (A) grant to any current or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for benefits of its officers and employees other than increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into consistent with past practice or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume or guarantee any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt a employee benefit plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or finance; or (xviii) authorize, commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries), the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07arrangement.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, During the period from the date of this Agreement to the Effective Time, except with the prior written consent of Parent or as specifically contemplated by this Agreement or as set forth in Section 5.01(a) of the Company Disclosure Schedule, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct its business carry on their respective businesses in the usual, regular and ordinary course of business consistent with past practice and use all commercially reasonable efforts to comply with all applicable Laws and, to the extent consistent therewith, use commercially reasonable efforts to keep available the services of their present officers and other employees and to preserve intact its assets, Intellectual Property, business organization their assets and preserve their relationships with licensors, licensees, partners, customers, suppliers, licensors, licensees, distributors and others having business dealings with themthem and maintain their franchises, rights and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective TimePermits. In addition, and without Without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of during the Company Disclosure Schedule, period from the date of this Agreement to the Effective Time, except with the prior written consent of Parent or as specifically contemplated by this Agreement or as set forth in Section 5.01(a) of the Company Disclosure Schedule (with specific reference to the subsection of this Section 5.01 to which the information stated in such disclosure relates), the Company shall not, and shall not permit any Company Subsidiary to do any of the following without the prior written consent of Parentits Subsidiaries to: (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property stock or otherwiseproperty) in respect of, any of its capital stock of the Company or any Company Subsidiaryother equity or voting interests, other than except for dividends and distributions by a direct or indirect wholly wholly-owned subsidiary Subsidiary of the Company to its parent, (B) split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary other equity or voting interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary other equity or voting interests, (C) purchase, redeem or otherwise acquire any shares of capital stock or any other securities of the Company or any Company Subsidiary of its Subsidiaries or any other securities thereof or any rights, options, warrants warrants, calls or calls rights to acquire any such shares or other securitiessecurities (including any Company Stock Options and Company RSUs, except pursuant to the forfeiture of Company Stock Options and Company RSUs or the acquisition by the Company of shares of Company Common Stock in settlement of the exercise price of a Company Stock Option or the tax withholding obligations of holders of Company Stock Options and Company RSUs, in each case in accordance with their terms as in effect on the date of this Agreement) or (D) take any action that would result in any amendment, modification or change of any term of any indebtedness of the Company or any of its Subsidiaries; (ii) issue, deliver, sell, grant, pledge, transfer deliver or sell (including any CEFF Shares) or pledge or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, (B) any Voting Company Debt other equity or other voting securities, (C) interests or any securities convertible into into, or exchangeable for, or any options, warrants warrants, calls or rights of any kind to acquire, any such sharesstock, Voting Company Debt, voting interests or securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock appreciation rights, restricted stock appreciation rights or units, stock-based performance units, "phantom" stock awards or other than (1) rights that are linked to the issuance value of Company Common Stock or the value of the Company or any part thereof; provided, however, that the Company may issue shares of Company Common Stock upon the exercise of the Company Warrant and Company Stock Options and rights under the Purchase Plan or the settlement of Company RSUs, in each case outstanding on the date of this Agreement and in accordance with their current terms only if and (2) the issuance of Company Common Stock pursuant to the Top-Up Optionextent required by their terms as in effect on the date of this Agreement; (iii) amend the Company Charter, Certificate or the Company By-laws Bylaws or other comparable charter or organizational documentsdocuments of any of the Company's Subsidiaries, except as may be required by law or the rules and regulations of the SEC or NASDAQ; (iv) directly or indirectly acquire or agree to acquire, acquire (A) by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of all or a substantial portion of the assets of, or by purchasing all or a substantial equity or voting interest in, or by any other manner, any person or business or division thereof or (B) any acquisition by other assets other than immaterial assets acquired in the Company or any Company Subsidiary ordinary course of any assets that are material to the Company and the Company Subsidiariesbusiness consistent with past practice; (v) sell, lease, license, sell and lease back, mortgage or otherwise subject to any Lien or otherwise dispose of any of its properties or assets (including any shares of capital stock, equity or voting interests or other rights, instruments or securities), except sales of used equipment in the ordinary course of business consistent with past practice and except for Permitted Liens incurred in the ordinary course of business consistent with past practice; (vi) (A) grant repurchase, prepay or incur any indebtedness, including by way of a guarantee or an issuance or sale of debt securities, or issue and sell options, warrants, calls or other rights to acquire any current or former director, officer or employee debt securities of the Company or any of its Subsidiaries, enter into any "keep well" or other Contract to maintain any financial statement or similar condition of another person or enter into any arrangement having the economic effect of any of the foregoing or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than the Company or any direct or indirect wholly-owned Subsidiary of the Company, and except for advances to employees in respect of travel or other related ordinary expenses in the ordinary course of business consistent with past practice; (vii) incur or commit to incur any capital expenditures, or any obligations or liabilities in connection therewith, that are in excess of the budgeted amounts specified on Section 5.01(a)(vii) of the Company Disclosure Schedule; (viii) except as required by Law (including the rules of NASDAQ), (A) pay, discharge, settle or satisfy any claims, liabilities or obligations (other than Transaction Claims) (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction in the ordinary course of business consistent with past practice, or as required by their terms as in effect on the date of this Agreement, of claims, liabilities or obligations reserved against in the Company's most recent financial statements (including the notes thereto) included in the Filed Company SEC Documents (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice, in each case, the payment, discharge, settlement or satisfaction of which does not include any obligation (other than the payment of money) to be performed by the Company or its Subsidiaries following the Closing Date, (B) settle or compromise any suit, claim, action, investigation, proceeding or audit pending against or with respect to the Company or any of its Subsidiaries in respect of any tax or enter into any material closing agreement that would reasonably be expected to adversely affect Parent's tax liability, (C) waive, relinquish, release, grant, transfer or assign any right of material value or (D) waive any material benefits of, or agree to modify in any adverse respect, or fail to enforce, or consent to any matter with respect to which its consent is required under, any confidentiality, standstill or similar Contract to which the Company or any of its Subsidiaries is a party; provided, however, that, except as otherwise provided in Section 6.03(c), the prior written consent of Parent shall not be required with respect to any of the actions set forth in this Section 5.01(a)(viii) taken in connection with or that relate to any Transaction Claims; (ix) except as required by any Law (including the rules of NASDAQ), enter into any Material Contract, modify or amend in any material respect any Material Contract, waive, release, assign or fail to exercise or pursue any material rights or claims under any Material Contract or accelerate, terminate or cancel any Material Contract; (x) except as required to ensure that any Company Benefit Plan or Company Benefit Agreement in effect on the date of this Agreement is not then out of compliance with applicable Law (including the rules of NASDAQ) or as specifically required pursuant to this Agreement (and, in each case, only to the extent the Compensation Committee has duly approved (by vote of members of the Compensation Committee who have been determined by the Board of Directors of the Company to be "independent directors" in accordance with the requirements of Rule 14d-10(d)(2) under the Exchange Act at the time of such approval) the arrangements resulting from such action as Employment Compensation Arrangements and taken all other actions necessary to satisfy the requirements of the non-exclusive safe harbor under Rule 14d-10(d)(2) under the Exchange Act with respect to such arrangements), (A) adopt, enter into, establish, terminate, amend or modify any Company Benefit Plan or Company Benefit Agreement, (B) increase in any manner the compensation or benefits of, or pay any bonusbonus to, or grant any loan to, any Company Personnel, except as required to comply with any Company Benefit Plan or Company Benefit Agreement in effect on the date of this Agreement, other than the payment of earned compensation and the provision of benefits, in each case, as required by applicable Law, (C) except as permitted by the preceding clause (B), pay or provide to any Company Personnel any compensation or benefit not provided for increases under a Company Benefit Plan or Company Benefit Agreement as in effect on the date of this Agreement, other than the payment of base cash compensation in the ordinary course of business consistent with past practice, (D) grant or amend any awards under any Company Benefit Plan (including the grant or amendment of any equity or equity-based or related compensation) or remove or modify existing restrictions in any Company Benefit Plan or Company Benefit Agreement or awards made thereunder, (E) except as permitted by the preceding clause (B), grant or pay any severance, separation, change in control, retention, incentive compensation, termination or similar compensation or benefits to, or increase in any manner the severance, separation, change in control, retention, termination or similar compensation or benefits of, any Company Personnel, other than with respect to the payment of any severance, separation, retention, incentive compensation, termination or similar compensation to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant pursuant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement Plans or Company Benefit PlanAgreements with Company Personnel in effect as of the date of this Agreement or under applicable Law, (EF) take enter into any action to accelerate any rights trust, annuity or benefitsinsurance Contract or similar agreement with respect to, or take any action to fund or in any other way secure the payment of compensation or benefits under, any Company Benefit Plan or Company Benefit Agreement, (G) take any action to accelerate the time of payment or vesting of any compensation or benefits under any Company Benefit Agreement Plan or Company Benefit PlanAgreement, or (H) make any material determinations not in the ordinary course of business, determination under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in that is inconsistent with the ordinary course of businessbusiness or past practice or (I) hire any employee, directly officer or indirectly sell, lease (as lessor), license independent contractor or otherwise dispose terminate the employment of or subject any Company Personnel without prior notification to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000Parent; (viiixi) (A) incur, assume or guarantee form any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary Subsidiary of the Company; (ixxii) enter into any Contract containing any restriction on the ability of the Company or any of its Subsidiaries to assign all or any portion of its rights, interests or obligations thereunder, unless such restriction expressly excludes any assignment to Parent and any of its Subsidiaries in connection with or following the consummation of the Offer, the Merger or the other transactions contemplated by the Transaction Agreements; (xiii) except as required by applicable Law, adopt or enter into any collective bargaining agreement or other labor union Contract applicable to the employees of the Company or any of its Subsidiaries; (xiv) write down any of its material assets, including any Intellectual Property Rights, or make any change in any material respect in any financial or tax accounting principle, method or practice, other than as required by GAAP, the SEC, the Public Company Accounting Oversight Board ("PCAOB") or applicable Law; (xv) except as required by GAAP, the SEC, PCAOB or applicable Law, engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, quarters or (CB) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary of its Subsidiaries that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business); (xxvi) incur knowingly take any action or agree fail to incur take any new capital expenditures that, action which action or failure to act would result in the aggregate, are material loss or reduction in excess value of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) Intellectual Property Rights of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is materialand its Subsidiaries, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive disclose any claims confidential or rights of substantial value; (xiii) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services proprietary information of the Company or any Company Subsidiary or otherwise limiting of its Subsidiaries other than pursuant to a confidentiality agreement restricting the freedom right of the recipient thereof to use and disclose such confidential or proprietary information; (xvii) except for this Agreement, enter into (A) any Contract with any beneficial owner of any shares of Company Common Stock, or securities convertible into, or exchangeable for, or any options, warrants, calls or rights to acquire, any shares of Company Subsidiary Common Stock, where such Contract provides for consideration payable to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent such beneficial owner or any of its affiliates after as a result of the consummation tender of the shares of Company Common Stock beneficially owned by such beneficial owner in the Offer or (B) any Contract with any person where the Mergeramount payable thereunder is calculated based on the number of shares of Company Common Stock tendered, or to be tendered, in the Offer by such person or any of its affiliates; (xviixviii) except as contemplated by this Agreement, amend the Rights Agreement, redeem the Company Rights or take any action with respect to, or make any change in personnel relating to key employeesdetermination under, operations or financethe Rights Agreement; or (xviiixix) authorizeauthorize any of, or commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, (a) During the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective TimeClosing, the Company shall, and shall cause each of the Company its Subsidiaries to, (i) conduct its business in the usual, regular Ordinary Course of Business and ordinary course of business in material compliance with all Applicable Law and (ii) use all commercially reasonable efforts to preserve intact its assetspresent business organization, Intellectual Property, business organization and relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available including the services of its current officers key employees and employees the goodwill of its customers, lenders, distributors, suppliers, regulators and other Persons with the objective of preserving unimpaired their goodwill and ongoing whom it has business at the Effective Time. relationships. (b) In addition, and without limiting the generality of the foregoingSection 5.1(a), except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of the Company Disclosure Schedule, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to do any of the following without the prior written consent of ParentGrifols, during the period from the date hereof and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, the Company shall, and shall cause its Subsidiaries, not do any of the following: (i) propose or adopt any amendments to the Charter Documents of the Company or any of its Subsidiaries; (Aii) adopt a plan of complete or partial liquidation or dissolution; (iii) declare, set aside or pay any dividends on, on or make any other distributions (whether in cash, stock, property equity securities or otherwiseproperty) in respect ofof any Company Securities; (iv) (A) adjust, split, combine or reclassify or otherwise amend the terms of any of capital stock of the Company or any Company Subsidiary, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (B) split, combine or reclassify any of capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities Company Securities in respect of, in lieu of or in substitution for, shares of for any capital stock of the Company or any Company Subsidiary or (CB) purchase, redeem or otherwise acquire any shares of capital stock of the Company acquire, directly or indirectly, any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls to acquire any such shares or other securitiesSecurities; (iiv) issue, deliver, grant, sell, grantauthorize, pledge, transfer pledge or otherwise encumber any Company Securities, or dispose enter into other agreements or commitments of any character obligating it to issue any such Company Securities, other than issuances of Company Common Stock upon the exercise or subject conversion of Company Options or Company Warrants outstanding on the date hereof in accordance with their terms or any agreement to any Lien which the Company is a party in effect as of the date hereof, each of which agreements have been disclosed to Purchasers; (vi) acquire or agree to acquire by merging or consolidating with, or by, directly or indirectly, purchasing (A) any shares of its capital stockstock or other voting securities in, (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable forfor share of capital stock or other voting securities in, or (C) any subscriptions, options, warrants warrants, puts, calls, phantom stock rights, stock appreciation rights, stock-based performance units, agreements, understandings, claims or other commitments or rights relating to the issuance, sale, repurchase or transfer of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stockmaterial assets of or any material business or any Person or material division thereof; (vii) sell, “phantom” stock rightslease or otherwise dispose of material assets, stock appreciation rights including by merger, consolidation, asset sale or stock-based performance unitsother business combination, except payment of invoices in the Ordinary Course of Business; (viii) make any loans, advances or capital contributions to, or investments in, any other than Person, which, individually, are not in excess of $5,000 and, in the aggregate, are not in excess of $25,000; (1ix) the issuance except as required by GAAP, make any material change in its methods or principles of Company Common Stock upon the exercise of Company Stock Options outstanding on accounting since the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Optionlast audited financial statements; (iiix) amend revalue any of its assets other than in the Company Charter, Company By-laws or other comparable charter or organizational documentsOrdinary Course of Business; (iv) directly or indirectly acquire or agree to acquire, by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, any person or any acquisition by the Company or any Company Subsidiary of any assets that are material to the Company and the Company Subsidiaries; (v) (Axi) grant any rights with respect to any current or former director, officer or employee Intellectual Property of the Company or any Company Subsidiary any increase in compensation or pay any bonusof its Subsidiaries other than non-exclusive rights granted to third party service providers solely for the purpose of conducting, except for increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee behalf of the Company or any Company Subsidiary of its Subsidiaries, any increase in severance or termination payresearch and development activities, except to in connection with the extent required under Company’s proposed spinout of its “nicotine inhalation” program and GERD Aspiration Diagnostic technology; (xii) enter into any agreement or commitment the effect of which would be to grant to a third party following the Closing any license to any Intellectual Property owned by Purchaser or any of its Subsidiaries, except in effect on connection with the date hereof Company’s proposed spinout of its “nicotine inhalation” program and set forth in Section 4.15 GERD Aspiration Diagnostic technology; (xiii) disclose any trade secrets of the Company Disclosure Scheduleor any of its Subsidiaries outside of an appropriate confidentiality agreement, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not than only as necessary in the ordinary course Ordinary Course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock OptionBusiness; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viiixiv) (A) incur, assume or guarantee incur any indebtedness for borrowed moneymoney or guarantee any such indebtedness of another Person, (B) issue or sell any debt securities or warrants securities, warrants, calls or other rights to acquire any debt securities of the Company or any Company Subsidiaryof its Subsidiaries, (C) guarantee any debt securities of another personPerson, (D) enter into any “keep well” or other agreement to maintain any financial statement condition of another person any other Person (other than any wholly-owned Subsidiary of it), in each case, involving amounts in excess of $250,000, or (E) enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, make or agree commit to settle any action, claim make capital expenditures in excess of an aggregate of $100,000 or proceeding pending fail to pay its obligations or threatened before any arbitrator, court or other Governmental Entity;satisfy its Liabilities as the same become due and payable; or (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary in writing or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or finance; or (xviii) authorize, commit or agree to take any action referred to of the actions described in Section 6.01(a)(iclauses (i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries), the provisions of this Section 6.01(axv) shall be limited by and subject to the provisions of Section 10.07above.

Conduct of Business by the Company. Except for matters contemplated by this AgreementThe Company agrees that, from the date of this Agreement to until the Effective TimeClosing, neither the Company shallnor any of its Subsidiaries will, and shall cause each of the Company Subsidiaries to, conduct its business except as set forth in the usualDisclosure Schedule or as specifically contemplated in this Agreement, regular and ordinary course of business and use all reasonable efforts to preserve intact its assets, Intellectual Property, business organization and relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement directly or set forth on Section 6.01(a) of the Company Disclosure Schedule, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to do any of the following without the prior written consent of Parentindirectly: (a) amend or otherwise change its Organizational Documents in a manner adverse to the Purchaser other than the change of the Company’s name as contemplated in the Definitive Proxy Statement on Schedule 14A filed by the Company with the SEC on January 21, 2014; (b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, license, pledge, disposition, grant or encumbrance of, (i) (A) declare, set aside any shares of any class of share capital or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any of capital stock ownership interest of the Company or any Company Subsidiaryof its Subsidiaries, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (B) split, combine or reclassify any of capital stock of the Company or any Company Subsidiary options, warrants, convertible securities or issue or authorize the issuance other rights of any other securities in respect of, in lieu of or in substitution for, shares of capital stock of the Company or any Company Subsidiary or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls kind to acquire any such shares or any other securities; ownership interest (ii) issueincluding any phantom interest), deliver, sell, grant, pledge, transfer of the Company or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, Subsidiaries (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1A) the issuance of Company shares of Common Stock upon the exercise or vesting of Company Stock Options Equity Securities outstanding on as of the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock issued pursuant to the Top-Up Option; Equity Compensation Plans and (iiiB) amend the Company Charter, Company By-laws grant of securities pursuant to employee or other comparable charter director stock award or organizational documents; (iv) directly incentive compensation or indirectly acquire or agree to acquire, by merging or consolidating withsimilar plans, or by purchasing or by any other mannerin connection with employment offers in the ordinary course, any equity interest inin all cases under this clause (B), business of or a substantial portion in an aggregate amount not to exceed 1.0% of the issued and outstanding Equity Securities) or (ii) any material assets of, any person or any acquisition by the Company or any Company Subsidiary of any assets that are material to the Company and the Company Subsidiaries; (v) (A) grant to any current or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, its Subsidiaries; (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (Ec) take any action to accelerate any rights adopt or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume or guarantee any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt implement a plan or agreement of, or resolutions providing for or authorizing, of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization restructuring or other reorganization reorganization, other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree such actions taken with respect to the termination Subsidiaries of any material Contract, except the Company in the ordinary course of business; (xvd) institutedeclare, settleset aside, make or agree to settle pay any action, claim or proceeding pending or threatened before any arbitrator, court dividend or other Governmental Entitydistribution, payable in cash, securities, property or otherwise, other than quarterly dividends in the ordinary course (in a per share amount not in excess of $0.35) or dividends by wholly-owned Subsidiaries of the Company to the Company or to other wholly-owned Subsidiaries; (xvie) agree reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock; (f) knowingly take any actions or omit to take any covenant actions that would or would reasonably be expected to (i) result in any of the conditions set forth in Section 7 not being satisfied, (ii) result in new or additional required approvals from any Governmental Authority that would reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents or (iii) materially impair, interfere with, hinder or delay the ability of the Company or a Company Subsidiary not the Purchaser to compete or other covenant of consummate the Company or a Company Subsidiary restricting transactions contemplated by the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or financeTransaction Documents; or (xviiig) authorizeenter into any agreement or otherwise make a commitment to do any of the foregoing. Nothing contained in this Agreement will give the Purchaser, commit directly or agree indirectly, rights to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting control or direct the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries), the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07Company’s or its Subsidiaries’ operations.

Conduct of Business by the Company. Except for matters contemplated by this AgreementThe Company agrees that, from the date of this Agreement to until the Effective TimeClosing Date, neither the Company nor any of its Subsidiaries shall, and shall cause each of the Company Subsidiaries toexcept as specifically contemplated in this Agreement, conduct its business in the usual, regular and ordinary course of business and use all reasonable efforts to preserve intact its assets, Intellectual Property, business organization and relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement directly or set forth on Section 6.01(a) of the Company Disclosure Schedule, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to do any of the following without the prior written consent of Parentindirectly: (a) amend or otherwise change its Organizational Documents in a manner adverse to the Investor; (b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) (A) declare, set aside any shares of any class of share capital or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any of capital stock ownership interest of the Company or any Company Subsidiaryof its Subsidiaries, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (B) split, combine or reclassify any of capital stock of the Company or any Company Subsidiary options, warrants, convertible securities or issue or authorize the issuance other rights of any other securities in respect of, in lieu of or in substitution for, shares of capital stock of the Company or any Company Subsidiary or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls kind to acquire any such shares or any other securities; ownership interest (ii) issueincluding any phantom interest), deliver, sell, grant, pledge, transfer of the Company or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, Subsidiaries (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1) pursuant to the issuance vesting of Company Common Stock upon the exercise Restricted Shares outstanding as of Company Stock Options outstanding on the date of this Agreement and in accordance with their current the terms and (2of such Restricted Shares as of the date of this Agreement) or the issuance grant of Company Common Stock restricted shares or options pursuant to the Top-Up Option; (iii) amend the Company Charter, Company By-laws employee or other comparable charter director stock option or organizational documents; (iv) directly incentive compensation or indirectly acquire or agree to acquire, by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion similar plans in an aggregate amount not exceed 1.0% of the issued and outstanding Company Securities or (ii) any material assets of, any person or any acquisition by the Company or any Company Subsidiary of any assets that are material to the Company and the Company Subsidiaries; (v) (A) grant to any current or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, its Subsidiaries; (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (Ec) take any action to accelerate any rights adopt or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume or guarantee any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt implement a plan or agreement of, or resolutions providing for or authorizing, of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization restructuring or other reorganization reorganization, other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree such actions taken with respect to the termination Subsidiaries of any material Contract, except the Company in the ordinary course of business; (xvd) institutedeclare, settleset aside, make or agree to settle pay any action, claim or proceeding pending or threatened before any arbitrator, court dividend or other Governmental Entitydistribution, payable in cash, securities, property or otherwise, other than quarterly dividends on the Shares and dividends by Subsidiaries of the Company to the Company or to other Subsidiaries; (xvie) agree to any covenant of the Company reclassify, combine, split, subdivide or a Company Subsidiary not to compete redeem, or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary purchase or otherwise limiting the freedom of the Company acquire, directly or any Company Subsidiary to compete in any line of business or with any person or in any area or to ownindirectly, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or financecapital stock; or (xviiif) authorize, commit enter into any agreement or agree otherwise make a commitment to take do any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting of the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries), the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing.

Conduct of Business by the Company. Except for matters contemplated by this Agreementthe Transaction Agreements or set forth in the Company Disclosure Letter, from the date of this Agreement to the Effective Time, Time the Company shall, and shall cause each of the Company Subsidiaries Subsidiary to, conduct its business in the usual, regular ordinary and ordinary usual course of business and use all its commercially reasonable efforts to preserve intact its assetscurrent business organization, Intellectual Propertykeep available the services of its officers and employees, business organization and maintain its relationships with customers, suppliers, vendors, licensors, licensees, distributors and agents and others having business dealings with them, them and to keep available preserve the services goodwill of its current officers the Company and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective TimeCompany Subsidiaries. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted contemplated by this Agreement or and except as set forth on in Section 6.01(a) 6.01 of the Company Disclosure ScheduleLetter, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to to, do any of the following without the prior written consent of Parent, such consent not to be unreasonably withheld: (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwiseother assets) in respect of, any of its capital stock of the Company stock, or any Company Subsidiaryother equity or voting interests, other than dividends and distributions by a direct or indirect wholly wholly-owned subsidiary of the Company Subsidiary to its parent, (B) split, combine or reclassify any of its capital stock of the Company stock, or any Company Subsidiary other equity or voting interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company stock, or any Company Subsidiary other equity or voting interests, (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securitiessecurities or (D) 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 Company Subsidiary; (ii) authorize for issuance, issue, deliver, sell, grant, pledge, transfer sell or otherwise encumber or dispose of or subject to any Lien grant (A) any shares of its capital stock, (B) any Company Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1) the issuance of Company Common Stock upon the exercise of Company Employee Stock Options outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Optionpresent terms; (iii) amend the Company Charterits certificate of incorporation, Company Byby-laws or other comparable charter or organizational documents; (iv) directly or indirectly acquire or agree to acquire, acquire (A) by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, or by any person other manner, any business or any acquisition by Person or division thereof or (B) any assets outside the ordinary and usual course of business, in either case, for consideration in excess of $15,000,000 individually or $30,000,000 in the aggregate; provided, that the Company shall consult with Parent in good faith prior to acquiring or agreeing to acquire any business or any Company Subsidiary of Person or division thereof, or any assets that are material to outside of the Company and the Company Subsidiariesordinary or usual course of business; (v) (A) grant to any current present or former directoremployee, officer or employee director of the Company or any Company Subsidiary any increase in compensation or pay any bonusfringe benefits, except for increases of cash compensation in salary for employees in the ordinary and usual course of business or to the extent required under employment agreements included in effect on the date hereof and set forth in Section 4.15 of the Filed Company Disclosure ScheduleSEC Documents, (B) grant to any such current present or former directoremployee, officer or employee director of the Company or any Company Subsidiary any increase in severance or termination benefits or pay, except to the extent required under any agreement in effect on as of the date hereof and set forth in Section 4.15 of the most recent audited financial statements included in or described in the Filed Company Disclosure ScheduleSEC Documents, (C) establish, adoptother than entering into employment agreements with employees of the Company approved in advance by Parent, enter into or amend any Company Benefit Agreementemployment, consulting, indemnification, severance or termination agreement with any such present or former employee, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary and usual course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or Plan, (F) loan or advance money or other property to any present or former employee, officer or director of the Company or any Company Subsidiary, other than the advancement of travel or other appropriate business expenses in the ordinary and usual course of business in amounts less than $5,000, (G) grant any new, or amend any existing, Company Employee Stock Option or enter into any agreement under which any Company Employee Stock Option would be required to be issued, (H) permit any payroll deductions or otherwise permit any increases in payroll deduction account accumulations under the ESPP, (I) take any action (or fail to take any action) which action (or failure to act) would impair the ability of the Company or any Company Subsidiary (or any successor thereto) to unilaterally amend or modify terminate any Company Stock OptionPlan, or (J) make any representation or commitment to, or enter into any formal or informal understanding, with any Person with respect to compensation, benefits, or terms of employment to be provided by Parent, the Surviving Corporation or any of the Surviving Corporation’s Subsidiaries at or subsequent to the Effective Time; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practicespractices affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or LawGAAP; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor)lease, license or otherwise dispose of or permit to become subject to any Lien, other than a Permitted Lien or any Lien in existence as of the date of this Agreement, any properties or assets, tangible or intangible, except sales of inventory and excess or obsolete assets with a value, individually or in the aggregate, in excess ordinary and usual course of $100,000business; (viii) (A) incur, assume or guarantee incur any indebtedness for borrowed moneymoney or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another personPerson, enter into any “keep well” or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, or except for short-term borrowings incurred in the ordinary and usual course of business, (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other personPerson, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (DC) repurchase or prepay any indebtedness or debt securities of the Company or any Company Subsidiary or of any third person, other promotional sales than the reimbursement of the travel or discount activityother appropriate business expenses of any of the Company’s or any Company Subsidiaries’ employees, officers or directors in each case in clauses (A) through (D) in a manner outside the ordinary and usual course of business in amounts less than $5,000; (ix) make or agree to make new capital expenditure, except in the ordinary and usual course of business, as set forth in the capital expenditure budget provided to Parent prior to the date hereof or in excess of $50,000 individually or $150,000 in the aggregate; (x) incur or agree to incur any new capital expenditures that, other than in the aggregateordinary and usual course of business, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, liabilities or obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement in excess of $50,000 individually or satisfaction, $150,000 in the ordinary course of business or in accordance with their termsaggregate, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any material indebtedness that is material, (individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, ) or waive any material claims or rights or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party; (xi) amend any Material Contract or Contract providing for payments or otherwise involving amounts in excess of substantial value$100,000 or, except in the ordinary and usual course of business, enter into any Material Contract; (xii) fail to maintain all material insurance policies as currently in effect or allow any of such policies to lapse; (xiii) adopt outside the ordinary and usual course of business, transfer, license or grant a plan security interest to any Person or agreement ofentity or otherwise extend, amend, allow to lapse or resolutions providing for go abandoned, modify or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of encumber any Company Subsidiary into the CompanyMaterial Intellectual Property Right; (xiv) make, enter into or renew, extend, amend, modify, or waive terminate any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services officer of the Company or any Company Subsidiary without cause, or otherwise limiting the freedom terminate any significant number of employees outside of the Company or any Company Subsidiary to compete in any line ordinary and usual course of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or financebusiness; or (xviiixv) authorizeauthorize any of, or commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters set forth in Section 5.01 of the Company Disclosure Letter, otherwise contemplated by this AgreementAgreement or required by Law, from the date of this Agreement to until the Effective Time, the Company shall, and shall cause each of the Company Subsidiaries Subsidiary to, conduct its respective business in the usual, regular and ordinary course of business and consistent with past practice and, to the extent consistent therewith, use all commercially reasonable efforts to (i) maintain its material assets and properties in their current condition (normal wear and tear excepted), (ii) preserve intact its assetscurrent business organization, Intellectual Propertykeep available the services of its current officers and employees, business organization keep and preserve its present relationships with customerstenants, joint venture partners or co-venturers, suppliers, licensors, licensees, distributors and others having material business dealings with themit, and to keep available (iii) preserve the services Company’s status as a REIT within the meaning of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective TimeCode. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted set forth in Schedule 5.01, or as otherwise contemplated by this Agreement or set forth on Section 6.01(a) of the Company Disclosure Schedulerequired by Law, from the date of this Agreement to until the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to to, do any of the following without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld, conditioned or delayed): (ia) (Ai) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any of its capital stock of the Company or any Company Subsidiarystock, other than dividends and distributions (1) to the extent set forth in, and in accordance with, Section 6.13, or (2) by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parent, (Bii) split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary or (Ciii) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securitiessecurities (except (x) pursuant to the forfeiture of Company Restricted Stock or the acquisition or withholding by the Company of shares of the Company Common Stock in settlement of Tax withholding obligations relating to Company Restricted Stock, (y) from holders of Company Restricted Stock in full or partial payment of any applicable Taxes payable by such holder upon the lapse of restrictions on such restricted stock, or (z) upon redemption or exchange of Company OP Units in accordance with the limited partnership agreement of Company OP). Notwithstanding the foregoing, the Company shall be permitted to make distributions reasonably necessary for the Company to maintain its status as a REIT under the Code and avoid the imposition of corporate level or excise Tax under the Code or other applicable Tax Law; (iib) issue, deliversell, pledge or grant (or enter into an agreement to issue, sell, pledge or grant, pledge, transfer or otherwise encumber or dispose of or subject to any Lien ): (Ai) any shares of its Company Capital Stock (or capital stockstock of any Company Subsidiary), including any Company Restricted Stock, (Bii) any Voting Company Debt or other voting securities, (Ciii) any securities convertible into or exchangeable for, or any options, warrants warrants, calls or rights of any kind to acquire, any such sharesCompany Capital Stock (or capital stock of any Company Subsidiary), Voting Company Debt, voting securities or convertible or exchangeable securities or (Div) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1x) the issuance of Company Common Stock upon the exercise 110,639 shares of Company Restricted Stock Options outstanding on authorized prior to the date hereof, or issuance of this Agreement and Company Restricted Stock in accordance with their current terms Section 5.01(e), and (2y) the issuance issuances upon redemption or exchange of Company Common Stock pursuant to OP Units in accordance with the Top-Up Optionlimited partnership agreement of Company OP); (iiic) amend the Company CharterArticles, the Company By-laws Bylaws, the Company OP Limited Partnership Agreement or other comparable charter formation or organizational documentsdocuments of any Company Subsidiary; (ivd) directly or indirectly acquire or agree to acquire, acquire (including by merging or consolidating with, or by purchasing or by any other manner, any an equity interest in, business of in or a substantial portion of the assets of, or by any person other manner), any business or any acquisition corporation, partnership, joint venture, association or other business organization or division thereof, real property, personal property or assets, except for (i) acquisitions of personal property at a total cost of less than $1,000,000 in the aggregate, (ii) acquisitions by the Company or any wholly owned Company Subsidiary of any assets that are material or from an existing wholly owned Company Subsidiary or (iii) acquisitions in accordance with the 2015 Capital Expenditures schedule attached to Schedule 5.01(m) of the Company and the Company SubsidiariesDisclosure Letter; (ve) (Ai) grant to any current or former directorexecutive officer, officer director or employee of the Company or any Company Subsidiary any an increase in compensation or pay any bonus, except for increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Scheduleaccordance with Schedule 5.01(e), (Bii) grant to any such current or former director, executive officer or employee director of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (Ciii) establish, adopt, enter into any severance or amend termination agreement with any Company Benefit Agreement, executive officer or director or (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (Eiv) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Plan, other than as required pursuant to the terms of any Company Benefit PlanPlan or in the ordinary course of business consistent with past practice; provided that the foregoing clauses (i), (ii), (iii) and (iv) shall not restrict the Company or make any material determinations not of the Company Subsidiaries from (A) entering into or making available to newly hired non-executive employees or to non-executive employees, in the context of promotions based on job performance or workplace requirements, in each case in the ordinary course of business, under benefits and compensation arrangements that have a value that is consistent with the past practice of the Company in providing compensation and benefits available to newly hired or promoted employees in similar positions and (B) granting annual salary increases and cash incentive awards, with any collective bargaining agreement or such awards to any given individual not to exceed $10,000 and with all such awards, in the aggregate, not to exceed $50,000; provided, further, however, that neither the Company Benefit Plan or Company Benefit Agreement or (F) amend or modify nor any Company Subsidiary shall be allowed to grant any shares of Company Capital Stock, including any Company Restricted Stock, or take any action restricted by Section 5.01(a) other than the issuance of 110,639 shares of Company Restricted Stock Optionto those individuals identified on Schedule 5.01(e) and with the allocation of such shares among such individuals as specified on Schedule 5.01(e); provided, however, that nothing in this Section 5.01 shall limit the right of the Company and each of the Company Subsidiaries to terminate the employment of all of its employees no later than immediately prior to the Partnership Merger Effective Time; (vif) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practicespractices materially affecting the reported consolidated assets, liabilities or results of operations of the Company or any Company Subsidiary, except insofar as may have been required by a change in GAAP or LawGAAP; (viig) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license license, sell and lease back, mortgage or otherwise dispose of or subject to any Lien any properties or assets, except for (i) tenant leases entered into in the ordinary course of business consistent with past practice, (ii) Liens on property and assets in the ordinary course of business consistent with past practice and that would not be material to any Company Property or any assets of the Company or any Company Subsidiary, (iii) Company Permitted Liens, (iv) property or assets with a value, individually or value of less than $500,000 in the aggregate, and (v) in excess connection with the incurrence of $100,000indebtedness permitted by Section 5.01(h); (viiih) (Ai) incur, assume incur or guarantee modify any indebtedness for borrowed moneymoney or guarantee any such indebtedness of another Person, except for (1) advances of credit incurred under the Company’s existing credit facilities, (2) short-term borrowings incurred in the ordinary course of business, (3) indebtedness solely involving the Company or any of its direct or indirect wholly owned Subsidiaries, and (4) refinancings of existing or maturing indebtedness, (ii) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another personPerson, enter into any “keep well” or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, foregoing or (Biii) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other personPerson, other than (x) to the Company or any direct or indirect wholly owned subsidiary Subsidiary of the Company; Company (ixy) engage advances to employees in respect of travel or other related ordinary expenses and (Az) advancement of expenses to officers and directors in accordance with the Company Articles, Company Bylaws, the Company OP Limited Partnership Agreement and any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating indemnification agreements to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any the Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activityOP is a party, in each the case of (x) and (y) above, in clauses (A) through (D) in a manner outside the ordinary course of businessbusiness consistent with past practice; (xi) incur or agree to incur any new capital expenditures thatother than in accordance with Section 6.09, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claimsmaterial action, liabilitieslitigation, obligations claim or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than arbitration where the payment, discharge, amount paid out-of-pocket net of insurance proceeds in settlement or satisfaction, compromise exceeds $500,000 individually or $1,000,000 in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business aggregate or (B) cancel enter into any indebtedness consent decree, injunction or similar restraint or form of equitable relief that is material, individually or in would materially restrict the aggregate, to operation of the business of the Company and the Company Subsidiaries taken as a whole, ; (j) cancel any material indebtedness (individually or in the aggregate) or waive any claims or rights with a value in excess of substantial value$500,000; (xiiik) enter into or amend, extend or terminate, or waive, release, compromise or assign any rights or claims under any Company Material Contract or any Contract that would have been deemed to be a Company Material Contract if entered into prior to the date hereof, other than (i) any expiration or renewal in accordance with the terms of any existing Company Material Contract that occur automatically without any action by the Company or any Company Subsidiary, (ii) the entry into any modification or amendment of, or waiver or consent under, any mortgage or related agreement to which the Company or any Company Subsidiary is a party as required or necessitated by this Agreement or the Transactions; provided that any such modification, amendment, waiver or consent does not increase the principal amount thereunder or otherwise materially adversely affect the Company, any Company Subsidiary, Parent or any Parent Subsidiary, or (iii) as may be reasonably necessary to comply with the express terms of this Agreement; (l) establish, adopt or enter into any collective bargaining agreement or other labor union Contract applicable to the employees of the Company or any Company Subsidiary; (m) authorize, or enter into any commitment for, any new material capital expenditure (such authorized or committed new material capital expenditures being referred to hereinafter as the “Capital Expenditures”) relating to the Company Properties other than (i) Capital Expenditures not exceeding $250,000 per individual expenditure, (ii) Capital Expenditures made in connection with any existing casualty or condemnation or new casualty or condemnation, (iii) Capital Expenditures in the ordinary course of business and consistent with past practice to maintain the physical and structural integrity of the Company Properties and as reasonably determined by the Company to be necessary to keep the Company Properties in working order, to comply with Laws, and to repair and/or prevent damage to any of the Company Properties as is necessary in the event of an emergency situation and (iv) Capital Expenditures in accordance with the 2015 Capital Expenditures schedule attached to Schedule 5.01(m) of the Company Disclosure Letter; (n) make, change or revoke any material Tax election or settle or compromise any material U.S. federal, state, local or foreign income Tax liability, unless such election, settlement or compromise is required by Law or necessary (i) to preserve the status of the Company as a REIT under the Code, or (ii) to qualify or preserve the status of any Company Subsidiary as a partnership or disregarded entity or as a “qualified REIT subsidiary” or a “taxable REIT subsidiary,” as the case may be, for U.S. federal income Tax purposes; (o) enter into any Contract that would limit or otherwise restrict (or purport to do so) the Company or any of the Company Subsidiaries or any of their successors from engaging or competing in any line of business or owning property in, whether or not restricted to, any geographic area; (p) adopt a plan or agreement of, or resolutions providing for or authorizing, of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of Company or any Company Subsidiary into (other than the CompanyMerger); (xivq) make, enter into any joint venture or renew, extend, amend, modify, partnership or waive other similar Contract with any material provisions of third party that is not a wholly owned Company Subsidiary; (r) enter into any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course new line of business; (xvs) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant permit existing insurance policies of the Company or a Company Subsidiary not to compete or other covenant of the Company Subsidiaries to be cancelled or a Company Subsidiary restricting terminated without replacing such insurance policies with comparable insurance policies, to the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or financeextent available on commercially reasonable terms; or (xviiit) authorizeauthorize any of, commit or commit, resolve or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, During the period from the date of this Agreement to the Effective Time, the Company shallwill, and shall will cause each of the Company its Subsidiaries to, conduct its business carry on their respective businesses in the usual, regular and ordinary course of business and in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact its assets, Intellectual Property, business organization and relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its their current officers and other key employees and preserve their relationships with all key customers, suppliers and other Persons having business dealings with them to the objective of preserving unimpaired end that their goodwill and ongoing business businesses will be unimpaired at the Effective Time. In addition, and without Without limiting the generality or effect of the foregoing, except for matters expressly permitted by this Agreement or set forth on as described in Section 6.01(a) 5.1 of the Company Disclosure ScheduleLetter or as expressly provided by this Agreement, during the period from the date of this Agreement to the Effective Time, the Company shall will not, and shall will not permit any Company Subsidiary to do any of the following its Subsidiaries to, without the prior written consent of Parent: (a) other than dividends and distributions (including liquidating distributions) by a direct or indirect wholly owned Subsidiary of the Company to its parent, (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any of its capital stock of the Company or any Company Subsidiary, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parentstock, (Bii) split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary stock, or (Ciii) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary of its Subsidiaries or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securities; (iib) except for the issuance of Shares pursuant to the exercise of options that are outstanding on the Measurement Date, issue, deliver, sell, grant, pledge, transfer pledge or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) securities or any securities convertible into or exchangeable forinto, or any optionsrights, warrants or rights of any kind options to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1) the issuance of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Optionsecurities; (iiic) amend the Company Charter, Company By-laws its certificate of incorporation or other comparable charter or organizational documentsbylaws; (ivd) directly acquire assets or indirectly acquire or agree to acquire, by merging or consolidating with, or by purchasing all or by substantially all of the assets of, or in any other manner, any equity interest in, business of or a substantial portion of the assets of, any person or any acquisition by the Company corporation, limited liability company, partnership, joint venture, association or any Company Subsidiary other business organization or division thereof in a transaction or series of any assets that are material to the Company and the Company Subsidiariesrelated transactions involving a total purchase price (determined in accordance with GAAP) in excess of $1,000,000; (ve) (A) grant sell, lease, license, mortgage or otherwise encumber or subject to any current Lien or former directorotherwise dispose of any of its properties or assets, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation other than (x) in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof consistent with past practice, and set forth in Section 4.15 (y) sales of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations assets which do not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of aggregate exceed $100,0001,000,000; (viiif) (A) incur, assume or guarantee incur any indebtedness for borrowed moneymoney or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiaryof its Subsidiaries, or guarantee any debt securities of another person, Person; (g) enter into any “"keep well” " or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, or ; (Bh) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other personPerson, other than to the Company or any direct or indirect wholly owned subsidiary Subsidiary of the Company; (ix) engage in (A) any trade loading practices Company or any other promotional sales or discount activity with any customers or distributors with any intent to officers and employees of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made of its Subsidiaries for travel, business or relocation expenses in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (xi) incur or agree to incur make any new capital expenditures that, other than expenditures in the aggregate, are in excess ordinary course of $1,000,000 in any calendar quarterbusiness consistent with past practice; (xij) make any change to its accounting methods, principles or practices, except as may be required by GAAP, or make or change any material Tax election or method of accounting, settle or compromise any material Tax liability or refund, or file its Tax Returns other than as is consistent with past practice and in accordance with applicable law; (xiik) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, except as required by Law or contemplated by, the most recent consolidated financial statements (or the notes thereto) in Section 5.9 of the Company included Disclosure Letter, enter into, adopt or amend in any material respect or terminate any Company Benefit Plan or any other agreement, plan or policy involving the Filed SEC Documents Company or incurred since any of its Subsidiaries and one or more of their directors, officers or employees; (l) hire or terminate the employment of any executive officer or employee or, except as contemplated by Section 5.9 of the Company Disclosure Letter, increase the compensation of any director, executive officer or other employee of the Company or pay any benefit or amount not required by a plan or arrangement as in effect on the date of this Agreement to any such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization Person other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xvm) instituteauthorize, settlerecommend, propose or agree announce an intention to settle any action, claim adopt a plan of complete or proceeding pending partial liquidation or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services dissolution of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the MergerSubsidiaries; (xviin) make amend the terms of any change Material Contract, other than in personnel relating to key employeesthe ordinary course of business, operations or financerelinquish any material right under or terminate any Material Contract; (o) enter into any material agreement not in the ordinary course of business; or (xviiip) authorize, or commit or agree to take, any of the foregoing actions or take any action referred to which would make any of the representations or warranties of the Company contained in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting this Agreement untrue or incorrect in any material respect as of the generality date when made or as of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries), the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07a future date.

Conduct of Business by the Company. Except for matters contemplated by this AgreementPending the Closing. The Company covenants and agrees that, except as set forth in Schedule 4.1, during the period from the date of this Agreement to and continuing until the Effective Timeearlier of the termination of this Agreement or the Closing, unless the Purchasers otherwise agree in writing, the Company shall, and shall cause each of the Company Subsidiaries to, (i) conduct its business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other Persons with which it has significant business relationships; (iii) use reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice; (iv) use reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary course of business manner, on a basis consistent with past practice; and use (vi) comply in all reasonable efforts to preserve intact its assets, Intellectual Property, business organization and relationships material respects with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Timeapplicable Laws. In addition, and without limiting the generality of the foregoing, except for matters Except as expressly permitted contemplated by this Agreement or as set forth on Section 6.01(a) of the Company Disclosure ScheduleSchedule 4.1, from between the date of this Agreement to and the Effective TimeClosing, the Company shall not, and shall cause each of the Subsidiaries not permit any Company Subsidiary to to, do any of the following without the prior written consent of Parentthe Purchaser: (a) (i) issue any debt securities, (Aii) declareincur any additional indebtedness, set aside (iii) assume, grant, guarantee or pay any dividends onendorse, or make any other distributions (whether in cash, stock, property accommodation or otherwise) in respect of, any of capital stock of arrangement making the Company or any Company SubsidiarySubsidiary responsible for, any liabilities or other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (B) split, combine or reclassify any of capital stock of the Company or any Company Subsidiary or issue or authorize the issuance obligations of any other securities in respect of, in lieu of or in substitution for, shares of capital stock of the Company or any Company Subsidiary Person or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls to acquire any such shares or other securities; (ii) issue, deliver, sell, grant, pledge, transfer or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1) the issuance of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Option; (iii) amend the Company Charter, Company By-laws or other comparable charter or organizational documents; (iv) directly or indirectly acquire or agree to acquire, by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, any person or any acquisition by the Company or any Company Subsidiary of any assets that are material to the Company and the Company Subsidiaries; (v) (A) grant to any current or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume or guarantee any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to Person; (b) change any method of accounting or accounting practice used by the Company or any direct Subsidiary, other than such changes required by GAAP; (c) repurchase, redeem or indirect wholly owned subsidiary otherwise acquire or exchange any share of Common Stock or other equity interests other than in accordance with the terms of the Existing Preferred Stock and Class B Common Stock; except for issuances of Class A Common Stock pursuant to the exercise of options to purchase Class A Common Stock outstanding on the date hereof and listed on Schedule 2.3(a) or options issued in compliance with this clause (c), issue or sell any additional shares of the capital stock of, or other equity interests in, the Company or any Subsidiary, or securities convertible into or exchangeable for such shares or other equity interests, or issue or grant any subscription rights, options, warrants or other rights of any character relating to shares of such capital stock, such other equity interests or such securities, other than options to purchase Class A Common Stock granted after the date hereof in the ordinary course of business under the Company's existing stock option plans; or, except for dividends required to be paid on the Existing Preferred Stock, declare, set aside, make or pay any dividend, or make any distribution, in respect of any shares of capital stock of the Company; (ixd) engage in (A) any trade loading practices amend the Company's or any Subsidiary's charter or by-laws or other promotional sales or discount activity organizational documents except with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales respect to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have filing of the effect Certificates of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments Designation and amendments contemplated by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including transactions under the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of businessMerger Agreement; (xe) incur take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article II becoming false or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 inaccurate in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) respect as of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business Closing Date or (Bii) cancel any indebtedness that is material, individually or in of the aggregate, conditions to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant obligations of the Company or a Company Subsidiary Purchasers set forth in Section 5.2 not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or financebeing satisfied; or (xviiif) authorize, commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting of the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries), the provisions of actions restricted by this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.074.1.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, (a) During the period from the date of this Agreement to the earlier of the termination of this Agreement in accordance with the provisions of Section 8.01 or the Effective TimeTime (the “Interim Period”), except as contemplated by this Agreement or as consented to in writing in advance by Parent, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct carry on its business in all material respects in the usual, regular and ordinary course of business and and, to the extent consistent therewith, use all commercially reasonable efforts to preserve intact its assetscurrent business organizations, Intellectual Propertyto keep available the services of its current officers, business organization key employees and consultants and to preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Timeit. In addition, addition to and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of during the Company Disclosure Schedule, Interim Period from the date of this Agreement to the Effective Time, except as contemplated by this Agreement, the Company shall not, and shall not permit any Company Subsidiary to do any of the following its Subsidiaries to, without the Parent’s prior written consent of Parentconsent: (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property stock or otherwiseproperty) in respect of, any of its capital stock of the Company or any Company Subsidiarystock, other than dividends and or distributions by a direct or indirect Subsidiary wholly owned subsidiary by the Company to the Company or another directly or indirectly wholly owned Subsidiary of the Company to its parentin the ordinary course of business consistent with past practice, (B) split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary stock, or (C) purchase, redeem or otherwise acquire any shares of its capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securities; (ii) issue, deliver, sell, grant, pledge, transfer pledge or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) securities or any securities convertible into or exchangeable forinto, or any optionsrights, warrants or rights of any kind options to acquire, any such shares, Voting Company Debt, voting securities or convertible securities, or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-stock based performance units, including pursuant to Contracts as in effect on the date of this Agreement (other than (1) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding in accordance with their terms on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up OptionAgreement); (iii) amend or waive any provision in the Company Charter, Charter or the Company By-laws Bylaws or other comparable charter or organizational documentsdocuments of any of the Company’s Subsidiaries, except as may be required by applicable Law or the rules and regulations of the SEC or the Nasdaq Stock Market, or, in the case of the Company, enter into any agreement with any of its stockholders in their capacity as such; (iv) directly or indirectly acquire or agree to acquire, (A) by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, by making an investment in or capital contribution to, or by any person other manner, any Person or any acquisition by the Company division, business or any Company Subsidiary equity interest of any assets that are Person, or (B) any material to the Company and the Company Subsidiariesasset or assets, except for capital expenditures; (v) (A) grant to any current or former directorincur, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incurcreate, assume or guarantee otherwise become liable for, any indebtedness for borrowed moneymoney or guarantee any such indebtedness of another Person, issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities of the Company or any Company Subsidiaryof its Subsidiaries, guarantee any debt securities of another personPerson, enter into any “keep well” or other agreement Contract to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoingforegoing (other than borrowings under the Company’s existing loan facilities in the ordinary course of business), or (B) make any loans or advances to any other Person, except for loans, advances (other than advances to non-officer employees advances, capital contributions or investments between any Subsidiary of the Company and the Company or another Subsidiary of the Company in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Companybusiness consistent with past practice; (ixvi) engage in (A) any trade loading practices except as required by Law or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quartersjudgment, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any material claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, satisfaction in the ordinary course of business or in accordance with their terms, of liabilities disclosed, reflected or reserved against in, or contemplated by, in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents (for amounts not in excess of such reserves), or incurred since (B) cancel any material indebtedness; (vii) except (x) as required to ensure that any Benefit Plan is not then out of compliance with applicable Law, or (y) to comply with any Benefit Plan or Contract entered into prior to the date of such financial statements this Agreement, (A) adopt, enter into, terminate or amend (1) any collective bargaining Contract or Benefit Plan or (2) any other Contract, plan or policy involving the Company or any of its Subsidiaries as applied to directors, executive officers and sales managers of the Company (“Key Persons”), or (B) increase in any manner the compensation, bonus or fringe or other benefits of, or pay any discretionary bonus of any kind or amount whatsoever to, any current or former director, officer, employee or consultant, except in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, consistent with past practice to employees of the Company and the Company or its Subsidiaries taken as a whole, or waive any claims or rights of substantial value;other than Key Persons. (xiiiviii) adopt or enter into a plan or agreement of, or resolutions providing for or authorizing, of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity (other than for the liquidation among wholly-owned Subsidiaries of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or finance); or (xviiiix) authorizeauthorize any of, commit or commit, resolve, propose or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters set forth in Section 5.1 of the Company Disclosure Schedule or otherwise contemplated by this AgreementAgreement or as required by applicable Law, from the date of this Agreement to the Effective Time, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct its business in the usual, regular and ordinary course of business and consistent with past practice and, to the extent consistent therewith, use all commercially reasonable efforts to preserve intact its assets, Intellectual Property, current business organization and Approved Enterprise and Benefitted Enterprise status, keep available the services of its current officers and employees and maintain its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted set forth in Section 5.1 of the Company Disclosure Schedule or otherwise contemplated by this Agreement or set forth on Section 6.01(a) of the Company Disclosure Scheduleas required by applicable Law, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to of its Subsidiaries to, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned: (ia) (Ai) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any of its capital stock of the Company or any Company Subsidiarystock, other than (A) dividends and distributions by a direct or indirect wholly wholly-owned subsidiary Subsidiary of the Company to its parentparent company, and (B) the previously-announced quarterly cash dividend of $0.10 per share payable with respect to the Company Shares to the holders of record on June 22, 2011, (Bii) split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary stock, or (Ciii) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary of its Subsidiaries or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securities; (iib) issue, deliver, sell, grant, pledge, transfer sell or otherwise encumber or dispose of or subject to any Lien grant (Ai) any shares of its capital stock, (B) any Voting Company Debt stock or other voting securities, (Cii) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (Diii) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1) the issuance of Company Common Stock Shares upon the exercise of Company Stock Options by any employee, officer or director of the Company outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Optionpresent terms; (iiic) amend the Company Charter, Company By-laws Charter Documents or other comparable charter or organizational documentsdocuments of any Subsidiary of the Company; (ivd) directly in any single transaction or indirectly series of related transactions having a purchase price (including any assumed debt) in excess of $2 million in the aggregate, acquire or agree to acquireacquire (i) any Person or business, whether by merging or consolidating with, or by purchasing or by any other manner, any a substantial equity interest in, business of in or a substantial portion of the assets ofof such Person or business, any person or any acquisition by the Company otherwise or any Company Subsidiary of (ii) any assets that are material material, individually or in the aggregate, to the Company and the Company its Subsidiaries, taken as a whole; (vi) (A) subject to Section 5.1(b), grant or announce any incentive awards or any increase in compensation, severance or termination pay to any current employee, officer, director or former director, officer or employee other service provider of the Company or any Company Subsidiary any increase in compensation or pay any bonusof its Subsidiaries, except for increases of cash compensation in the ordinary course of business consistent with past practice or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the existing Company Disclosure ScheduleEmployee Plans or existing Company Employment Agreements or by applicable Law, (Bii) grant to hire any such current new employees or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination payofficers, except in the ordinary course of business consistent with past practice with respect to the extent required under any agreement in effect on the date hereof employees or officers with an annual base salary and set forth in Section 4.15 of the Company Disclosure Scheduleincentive compensation opportunity not to exceed $200,000 per employee or officer, (Ciii) establish, adopt, enter into into, amend, modify or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend terminate in any material respect any collective bargaining agreement or Company Benefit Employee Plan, or (Eiv) take any action to accelerate any rights or benefits, take pay or agree to pay any action to fund pension, retirement allowance, termination or in any severance pay, bonus or other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Planemployee benefit, or make any material determinations not in the ordinary course of businessbusiness consistent with prior practice, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock OptionEmployee Plan; (vif) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practicespractices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or LawGAAP; (viig) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien (other than any Permitted Lien) any properties or assets with a valuethat are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole, except licenses of or other grants of rights to use Intellectual Property in the ordinary course of business consistent with past practice and sales of inventory and excess or obsolete assets in the ordinary course of $100,000business consistent with past practice; (viiih) (A) incur, assume or guarantee incur any indebtedness for borrowed moneymoney or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiaryof its Subsidiaries, guarantee any debt securities of another personPerson, enter into any “keep well” or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to nonexcept for short-officer employees term borrowings incurred in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Companybusiness consistent with past practice; (ixi) engage make or agree to make any new capital expenditure or expenditures (other than in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur business or agree to incur any new capital expenditures that, in that are contemplated by the aggregate, Company’s annual budget for 2011 and capital expenditure plan for 2012 which have been made available to Parent) that are in excess of $1,000,000 2.5 million in any calendar quarterthe aggregate; (xij) with respect to any Company Intellectual Property, except in the ordinary course of business consistent with past practice, and except for agreements between or among the Company and its Subsidiaries, (A) encumber, impair, abandon, fail to maintain, transfer, license to any Person (including through an agreement with a reseller, distributor, franchisee or other similar channel partner), or otherwise dispose of any right, title or interest of the Company or any of its Subsidiaries in any Company Intellectual Property or Company Software Products or (B) divulge, furnish to or make accessible any material confidential or other non-public information in which the Company or any of its Subsidiaries has trade secret or equivalent rights within the Company Intellectual Property to any Person who is not subject to an enforceable written agreement to maintain the confidentiality of such confidential or other non-public information; (k) make or change any material Tax election or settle or compromise any material Tax liability or refundclaim in excess of $1 million in the aggregate; (xiil) (A) paywaive, dischargerelease, assign, settle or satisfy compromise any claimsclaim, liabilities, obligations action or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise)proceeding, other than waivers, releases, assignments, settlements or compromises that (i) involve the paymentpayment of monetary damages equal to or lesser than the amounts specifically reserved with respect thereto on the balance sheet as of December 31, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company 2010 included in the Filed Company SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, do not exceed $1 million individually or in the aggregate, to (ii) if involving any non-monetary outcome, will not have a material effect on the continuing operations of the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial value(iii) are with respect to ordinary course customer disputes; (xiiim) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation enter into any new line of any Company Subsidiary into business outside of the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of ’s existing business; (xvn) institute, settle, or agree to settle take any action, claim or proceeding pending knowingly fail to take any action, which action or threatened before any arbitratorfailure to act would prevent or impede, court or other Governmental Entity; (xviwould be reasonably likely to prevent or impede, the Merger from qualifying as a reorganization within the meaning of Section 368(a) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or financeCode; or (xviiio) authorizeauthorize any of, or commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions foregoing actions. For purposes of this Section 6.01(a) 5.1, if any action, transaction or omission is permitted by the terms of a subsection hereof that specifically relates to the subject matter of the subsection, such action, transaction or omission shall be limited deemed permitted under all other subsections of this Section 5.1 even if such action, transaction or omission has ancillary effects on other subject matters contemplated by and subject other subsections of this Section 5.1. 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 provisions Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of Section 10.07this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.

Conduct of Business by the Company. Except for matters contemplated set forth in the Company Disclosure Letter or otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, Closing the Company shall, and shall cause each of the Company Subsidiaries Subsidiary to, conduct its business in the usual, regular and ordinary course of business and in substantially the same manner as previously conducted and, to the extent consistent therewith, use all commercially reasonable efforts to preserve intact its assetscurrent business organization, Intellectual Property, business organization keep available the services of its current officers and employees and keep its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters set forth in the Company Disclosure Letter or otherwise expressly permitted by this Agreement or set forth on Section 6.01(a) of the Company Disclosure ScheduleAgreement, from the date of this Agreement to the Effective TimeClosing, the Company shall not, and shall not permit any Company Subsidiary to to, do any of the following without the prior written consent of Parentthe Purchaser: (i) (A) declare, set aside aside, allot or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any of its capital stock of the Company or any Company Subsidiarystock, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (B) split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary stock, or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securities; (ii) issue, deliver, sell, grant, pledge, transfer sell or otherwise encumber or dispose of or subject to any Lien grant (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights rights, restricted stock units or stock-based performance units, other than the issuance of the Company Common Stock and Company Preferred Stock issued in connection with the Transactions (1including to RHJI pursuant to the Equity Commitment) and the issuance of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Optionpresent terms; (iii) amend the Company Charterits articles of incorporation, Company Byby-laws or other comparable charter or organizational documents, other than the Company Charter Amendment; (iv) directly or indirectly acquire or agree to acquire, by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, any person or any acquisition by the Company or any Company Subsidiary of any assets that are material to the Company and the Company Subsidiaries; (v) (A) grant to any current or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practicespractices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or LawGAAP; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume or guarantee any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xiv) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or financeelection; or (xviiivi) authorizeauthorize any of, or commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, During the period from the date of this Agreement to the Effective Time, except as set forth in Section 4.01(a) of the Company Disclosure Schedule or as consented to in writing in advance by Parent or as otherwise expressly permitted or required by this Agreement, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct carry on its business in the usual, regular and ordinary course of business and consistent with past practice prior to the Closing and, to the extent consistent therewith, use all reasonable best efforts to preserve intact its assetscurrent business organizations, Intellectual Propertykeep available the services of its current officers, business organization employees and consultants and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Timeit. In addition, addition to and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of during the Company Disclosure Schedule, period from the date of this Agreement to the Effective Time, except as otherwise set forth in Section 4.01(a) of the Company Disclosure Schedule or as otherwise expressly permitted or required pursuant to this Agreement, the Company shall not, and shall not permit any Company Subsidiary to do any of the following its Subsidiaries to, without the Parent’s prior written consent of Parent:(which consent may not be unreasonably withheld or delayed): (i) (Ax) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property stock or otherwiseproperty) in respect of, any of its capital stock of the Company or any Company Subsidiarystock, other than (A) quarterly cash dividends with respect to the Company Common Stock not in excess of $.06 per share, with usual declaration, record and payment dates and (B) dividends or distributions by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parentstockholders, (By) split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary or (Cz) purchase, redeem or otherwise acquire any shares of its capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securities, except for purchases, redemptions or other acquisitions of capital stock or other securities (1) required by the terms of the Company Stock Plans or Company Stock Options or (2) required by the terms of any plans, arrangements or Contracts existing on the date hereof between the Company or any of its Subsidiaries and any director or employee of the Company or any of its Subsidiaries (to the extent complete and accurate copies of which have been heretofore delivered to Parent); (ii) issue, deliver, sell, grant, pledge, transfer pledge or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) securities or any securities convertible into or exchangeable exercisable for, or any optionsrights, warrants or rights of any kind options to acquire, any such shares, Voting Company Debt, voting securities or convertible securities, or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-stock based performance units, units (other than (1) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options or the Company Warrants or Company Stock-Based Awards, in each case outstanding on the date of this Agreement hereof and in accordance with their current terms on the date hereof); provided, however, that the Company may grant Company Stock Options, Company Restricted Stock, and Company Stock-Based Awards (2) the issuance and issue shares of Company Common Stock upon the exercise thereof) to employees or directors pursuant to its currently existing Company Benefit Plans in the Topordinary course and consistent with past practice but only to the extent that such grants are not related to more than 175,000, or such greater number as Parent shall reasonably agree would not require a vote of Parent’s stockholders to satisfy the condition set forth in Section 6.01(b) (without giving effect to the second sentence of Section 2.01(c)), but in any event no more than 310,000 shares of Company Common Stock in the aggregate (not more than 35,000 shares of which can be granted before June 1, 2007) and such grants are not related to more than 70,000 shares of Company Common Stock for any individual (not more than 15,000 shares for grants to any individual before June 1, 2007); provided, further, that any grant, as a condition to being granted hereunder without the consent of Parent by their terms, (i) will only be granted at a price that is not less than the fair market value of the Company Common Stock on the date of the grant (with respect to any Company Stock Option or Company Stock-Up OptionBased Award, where there is an exercise price or other initial floor price for measuring the increase in value of the shares of Company Common Stock), (ii) will otherwise only contain such customary terms and conditions, including vesting provisions, as are, in each instance, consistent with past practice of the Company, both as to amounts of the grants and terms and conditions thereof and (iii) with respect to any grants on or after June 1, 2007, will not vest, become free of restrictions, immediately exercisable, or immediately payable (as applicable) in connection with the transactions contemplated in connection with the Merger; (iii) amend the Company Charter, Certificate or the Company By-laws Bylaws or other comparable charter or organizational documentsdocuments of any of the Company’s Subsidiaries; (iv) directly or indirectly acquire or agree to acquire, (x) by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, by making an investment in or capital contribution to, or by any other manner, any person or any acquisition by the Company division, business or any Company Subsidiary equity interest of any assets that are material person or (y) any assets, rights or properties except for (1) capital expenditures, which shall be subject to the Company limitations of clause (vii) below, (2) purchases of inventory, raw materials or supplies, and other assets up to $2,000,000 in the Company Subsidiaries; (v) (A) grant to any current or former directoraggregate, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation in the ordinary course of business consistent with past practice and (3) other acquisitions, investments or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations capital contributions not exceeding $10,000,000 in the ordinary course aggregate in each of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option2006 and 2007; (viv) make any change in its fiscal yearsell, revalue any assets or make any change in its financial or tax accounting methodspledge, principles or practicesdispose of, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of businesstransfer, directly or indirectly sellabandon, lease (as lessor), license license, or otherwise dispose of encumber or subject to any Lien any properties material properties, rights or assets with a valueof the Company or any of its Subsidiaries, individually except (1) sales, pledges, dispositions, transfers, leases, licenses or encumbrances required to be effected prior to the Effective Time pursuant to existing Contracts that have been disclosed to Parent, or non-material leases or licenses in the aggregateordinary course of business consistent with past practice, and (2) sales, pledges, dispositions, transfers, leases, licenses or encumbrances of (A) assets or properties of the Company or any of its Subsidiaries having a value not to exceed in excess the aggregate $2,000,000 in any six-month period, or (B) inventory or finished goods in the ordinary course of $100,000business consistent with past practice; (viiivi) (Ax) incurredeem, assume repurchase, prepay (other than prepayments of revolving loans under the Company Loan Agreement), defease, cancel, or guarantee otherwise incur or acquire, or modify in any material respect the terms of, any indebtedness for borrowed moneymoney or incur, assume, guarantee or endorse, or otherwise become responsible for, any such indebtedness of another person, issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another personits Subsidiaries, enter into any “keep well” or other agreement Contract to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances foregoing (other than advances to non-officer employees borrowings (including issuances of letters of credit) under the Company Loan Agreement in the ordinary course of businessbusiness consistent with past practice, in an aggregate amount such that the aggregate amount of borrowings thereunder (other than the $125,000,000 term loan) do not exceed $45,000,000 at any time outstanding) or capital contributions to, (y) make any loans or investments in, advances to any other person, other than to the Company or any direct or indirect wholly owned subsidiary Subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have result in the effect aggregate principal amount of accelerating all loans and advances of the Company and its Subsidiaries, other than to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company direct or indirect wholly owned Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including of the current fiscal quarter) or (D) Company, exceeding $2,000,000 at any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of businesstime outstanding; (xvii) incur or agree to incur make any new capital expenditure or expenditures that, exceeding the amounts set forth in Section 4.01(a)(vii) of the aggregate, are in excess of $1,000,000 in any calendar quarterCompany Disclosure Schedule; (xiviii) make except as required by Law or change any material Tax election or settle or compromise any material Tax liability or refund; judgment by a court of competent jurisdiction, (xii) (Ax) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise)) material to the Company and its Subsidiaries, taken as a whole, other than the payment, discharge, settlement or satisfaction, satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities (A) disclosed, reflected or reserved against in, or contemplated by, in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents or (B) incurred since the date of such financial statements in the ordinary course of business consistent with past practice where the amount paid under this clause (x) does not exceed the amounts set forth in Section 4.01(a)(viii) of the Company Disclosure Letter or (By) cancel waive or assign any indebtedness that is material, individually claims or in the aggregate, rights material to the Company and the Company its Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiiiix) adopt (x) enter into, materially modify, terminate, cancel or fail to renew any Contract that is or would be a plan or agreement ofMaterial Contract, or resolutions providing for waive, release or authorizingassign any material rights or claims thereunder or (y) enter into, complete modify, amend or partial liquidationterminate any Contract or waive, dissolutionrelease or assign any material rights or claims thereunder, mergerwhich, consolidationin the case of each of clauses (x) and (y), restructuringif so entered into, recapitalization modified, amended, terminated, waived, released or other reorganization other than for assigned would reasonably be expected to (A) have a Material Adverse Effect, or (B) impair in any material respect the liquidation ability of any the Company Subsidiary into the Companyand its Subsidiaries to conduct their business as currently conducted; (xivx) makeexcept (w) as required by applicable Law, (x) as required to comply with any Company Benefit Plan or other Contract entered into prior to the date hereof (to the extent complete and accurate copies of which have been heretofore delivered to Parent), (y) as may be required to avoid adverse treatment under Section 409A of the Code or (z) as permitted pursuant to Section 4.01(a)(ii), (A) adopt, enter into into, terminate or renewamend (I) any Company Benefit Plan or (II) any Contract, extend, amend, modify, plan or waive policy involving the Company or any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contractits Subsidiaries and Company Personnel, except in the ordinary course of business; (xv) institute, settle, or agree business consistent with past practice with respect to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant employees of the Company or a its Subsidiaries who are not Key Personnel (including in connection with new hires, promotions and changes in job status), (B) grant any severance or termination pay or increase the compensation of any Company Subsidiary not Personnel, (C) remove any existing restrictions in any Company Benefit Plans or awards made thereunder, (D) take any action to compete fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan, (E) take any action to accelerate the vesting or payment of any compensation or benefit under any Company Benefit Plan or awards made thereunder or (F) materially change any actuarial or other covenant of assumption used to calculate funding obligations with respect to any Company Pension Plan or change the manner in which contributions to any Company Pension Plan are made or a Company Subsidiary restricting the developmentbasis on which such contributions are determined; (xi) except as required by GAAP and as advised by the Company’s regular independent public accountant, manufacture, marketing revalue any material assets or distribution of the products or services liabilities of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer Subsidiaries or the Merger; (xvii) make any change in personnel relating accounting methods, principles or practices; (xii) take any action that would reasonably be likely to key employees, operations or financeprevent the Merger from qualifying as a “reorganization” under Section 368(a) of the Code; or (xviiixiii) authorizeauthorize any of, commit or commit, resolve, propose or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, During the period from the date of this Agreement until the earlier of the (i) termination of this Agreement pursuant to Article VIII or (ii) the Effective Appointment Time, except as set forth in Section 5.01(a) of the Company Disclosure Schedule or as consented to in writing in advance by Parent or as otherwise expressly permitted or required by this Agreement, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct carry on its business in the usual, regular and ordinary course consistent with past practice and in compliance in all material respects with (and without any unreasonable delay in the performance of business its obligations under) all applicable Laws and regulations and with the terms of its Material Contracts and, to use all reasonable efforts to preserve intact its assetscurrent business organizations, Intellectual Propertykeep available the services of its current officers, business organization employees and consultants, maintain its rights, Permits and other authorizations issued by Governmental Entities and preserve its relationships with customers, suppliers, licensors, licensees, distributors landlords, distributors, franchisees and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Timeit. In addition, addition to and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of during the Company Disclosure Schedule, period from the date of this Agreement until the earlier of the (i) termination of this Agreement pursuant to Article VIII or (ii) the Effective Appointment Time, except as otherwise set forth in Section 5.01(a) of the Company Disclosure Schedule or as otherwise expressly permitted or required by this Agreement, the Company shall not, and shall not permit any Company Subsidiary to do any of the following its Subsidiaries to, without the Parent’s prior written consent of Parentconsent: (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property stock or otherwiseany other form) in respect of, any of its capital stock of the Company or any Company Subsidiarystock, other than dividends and or distributions by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parentthe Company or a wholly owned Subsidiary of the Company, (B) adjust, split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary or (C) purchase, redeem or otherwise acquire any shares of its capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securities, except for purchases, redemptions or other acquisitions of capital stock or other securities (1) required by the terms of the applicable Company Stock Plan or (2) required by the terms of any plans, arrangements or Contracts existing on the date hereof between the Company or any of its Subsidiaries and any Company Personnel (to the extent complete and accurate copies of which have been heretofore delivered to Parent); (ii) issue, deliver, sell, grant, pledge, transfer pledge or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) securities or any securities convertible into or exchangeable exercisable for, or any optionsrights, warrants or rights of any kind options to acquire, any such shares, Voting Company Debt, voting securities or convertible securities, or exchangeable securities or Company Stock-Based Awards, (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on as of the date of this Agreement and in accordance with their current terms and (2) as of the issuance date of Company Common Stock pursuant to the Top-Up Optionthis Agreement); (iii) enter into any Contract, understanding or arrangement with respect to the sale, voting, registration or repurchase of Company Common Stock or the capital stock of any Subsidiary of the Company; (iv) amend the Company Charter, Articles or the Company By-laws Bylaws or other comparable charter or organizational documentsdocuments of any of the Company’s Subsidiaries; (ivv) directly or indirectly acquire or agree to acquire, (A) by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, by making an investment in or capital contribution to, or by any other manner, any person or any acquisition by the Company division, business or any Company Subsidiary equity interest of any assets that are material person or (B) any assets, rights or properties except for (1) capital expenditures, which shall be subject to the Company limitations of clause (viii) below, and the Company Subsidiaries; (v2) (A) grant to any current purchases of inventories, components, raw materials or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation supplies in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Optionconsistent with past practice; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (viiA) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor)pledge, license dispose of, transfer, lease, license, or otherwise dispose of encumber or subject to any Lien any properties material properties, rights or assets with a valueof the Company or any of its Subsidiaries, individually except (1) sales, pledges, dispositions, transfers, leases, licenses or encumbrances required to be effected prior to the Appointment Time pursuant to existing Contracts listed in the aggregateCompany Disclosure Schedule, or non-material leases or licenses in excess the ordinary course of $100,000business consistent with past practice and, (2) sales, pledges, dispositions, transfers, leases, licenses or encumbrances of (a) inventory which is obsolete or no longer used or useful in the conduct of the Company’s or any of its Subsidiaries’ business in the ordinary course of business consistent with past practice or (b) inventory in the ordinary course of business consistent with past practice; or (B) unless otherwise permitted under another clause of this Section 5.01(a), enter into any material commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly owned Subsidiary of the Company and the Company or another wholly owned Subsidiary of the Company; (viiivii) (A) redeem, repurchase, prepay, defease, cancel, incur, create, assume or guarantee otherwise acquire, or modify in any material respect the terms of, any indebtedness for borrowed moneymoney or assume, guarantee or endorse, or otherwise become responsible for, any such indebtedness of another person, issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another personits Subsidiaries, enter into any “keep well” or other agreement Contract to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, foregoing (other than (i) short-term borrowings in the ordinary course of business consistent with past practice and not exceeding $250,000 in the aggregate and (ii) borrowings in the ordinary course of business consistent with past practice and that the Company will repay within five (5) Business Days and not exceeding $100,000 in the aggregate) or (B) make any loans, advances (other than loans or advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person; (viii) make any new capital expenditure or expenditures including with respect to capital lease obligations exceeding $100,000 in the first three months following the date hereof; $100,000 in the six months following the date hereof; such limits, other than in each case, shall be in respect of all payments during any “minimum term” of any Contract related to the Company or any direct or indirect wholly owned subsidiary of the Companyforegoing; (ix) engage in (A) any trade loading practices except as required by Law or any other promotional sales or discount activity with any customers or distributors with any intent judgment by a court of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarterscompetent jurisdiction, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities disclosed, reflected or reserved against in, or contemplated by, in the most recent consolidated audited financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents filed with the SEC prior to the date of this Agreement (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice provided that such settlements (1) shall not involve in excess of $100,000 in the aggregate, and (2) shall not be reasonably likely to have any adverse impact (relative to the alternative of not settling) on the operations of the Company or any of its Subsidiaries, (B) waive or assign any claims or rights of material value, (C) waive any benefits of, or agree to modify in any respect, or, subject to the terms hereof, knowingly fail to enforce, or consent to any matter with respect to which consent is required under, any standstill or similar Contract to which the Company or any of its Subsidiaries is a party or (D) waive any material benefits of, or agree to modify in any material respect, or, subject to the terms hereof, knowingly fail to enforce in any material respect, or consent to any matter with respect to which consent is required under, any material confidentiality or similar Contract to which the Company or any of its Subsidiaries is a party; (x) (A) enter into, materially modify, terminate, cancel or fail to renew any Contract that is or would be a Material Contract, or waive, release or assign any material rights or claims thereunder or (B) cancel enter into, modify, amend or terminate any indebtedness Contract or waive, release or assign any material rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned would reasonably be expected to (1) impair in any material respect the ability of the Company or its Subsidiaries to perform its obligations under this Agreement, (2) prevent or materially impede, interfere with, hinder or delay the consummation of any of the transactions contemplated by this Agreement or (3) impair in any material respect the ability of the Company and its Subsidiaries to conduct their business as currently conducted; (xi) enter into any Contract or take any action to the extent consummation of the transactions contemplated by this Agreement or compliance by the Company with the provisions of this Agreement could reasonably be expected to conflict with, or result in a violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, modification, cancellation or acceleration of any obligation or to the loss of a benefit under, or result in the creation of any Lien in or upon any of the properties, rights or other assets of the Company or any of its Subsidiaries under, or require Parent or any of its Affiliates to license or transfer any of its Intellectual Property or other material assets under, or give rise to any increased, additional, accelerated, or guaranteed right or entitlements of any third party under, or result in any material alteration of, any provision of such Contract or action; (xii) except as required by applicable Law, to comply with any Company Benefit Plan, Company Benefit Agreement or other Contract entered into prior to the date hereof and listed in the Company Disclosure Schedule or as may be required to avoid adverse treatment under Section 409A of the Code, to: (1) adopt, enter into, terminate or amend (a) any collective bargaining agreement or Company Benefit Plan or (b) any Company Benefit Agreement or other Contract, plan or policy involving the Company or any of its Subsidiaries and Company Personnel, except amendments in the ordinary course of business consistent with past practice with respect to employees of the Company or its Subsidiaries who are not Key Personnel, (2) grant any severance or termination pay or increase the compensation of any Key Personnel, or grant any severance or termination pay or increase the compensation of any Company Personnel, excluding Key Personnel, other than in the ordinary course of business, consistent with past practice, (3) remove any existing restrictions in any Company Benefit Agreements, Company Benefit Plans or awards made thereunder, (4) make any deposits or contributions of cash or other property to, or take any action to fund or in any other way secure the payment of compensation or benefits under, any Company Benefit Plan or Company Benefit Agreement, (5) take any action to accelerate the vesting or payment of any compensation or benefit under any Company Benefit Plan or Company Benefit Agreement or awards made thereunder, (6) materially change any actuarial or other assumption used to calculate funding obligations with respect to any Company Benefit Plan or change the manner in which contributions to any Company Benefit Plan are made or the basis on which such contributions are determined. Except in cases of termination for cause, Parent shall be given reasonable notice and opportunity provide input on hire or termination of any employee with annual base salary between $75,000 and $100,000, who is, or would upon hire, be classified as a member of Key Personnel, and the Company shall give due consideration to all input provided by Parent. The Company may not, without prior written approval from Parent, hire or terminate any employee with annual base salary in excess of $100,000, who is, or would upon hire, be classified as a member of Key Personnel. (xiii) except as required by GAAP and as advised by the Company’s regular independent public accountant, revalue any material assets of the Company or any of its Subsidiaries or make any change in accounting methods, policies, principles or practices; (xiv) perform any quarterly or other interim financial reporting close process in a manner that is materialdiffers from past practice; (xv) write up, write down or write off the book value of any assets, individually or in the aggregate, to for the Company and the Company and/or its Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entitybusiness consistent with past practice and not in excess of $100,000 except as required by GAAP; (xvi) agree make any material changes or modifications to any covenant of the Company pricing policy or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company investment policy or any Company Subsidiary method of doing business except for immaterial changes to product or otherwise limiting the freedom of the Company or any Company Subsidiary to compete menu prices in any line of business or accordance with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Mergerpast practice; (xvii) make create any change new Subsidiaries; (xviii) take any action that would cause any representation or warranty of the Company in personnel relating this Agreement to key employees, operations become untrue or financenot accurate in a manner such that the condition set forth in clause (c) of Annex A would occur; or (xviiixix) authorizeauthorize any of, commit or commit, resolve, propose or agree to take any action referred of, or announce the taking or intention to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)take any of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters contemplated by this AgreementPending the Closing. The Company covenants and agrees that, except as set forth in Schedule 4.1, during the period from the date of this Agreement to and continuing until the Effective Timeearlier of the termination of this Agreement or the Closing, unless the Purchasers otherwise agree in writing, the Company shall, and shall cause each of the Company Subsidiaries to, (i) conduct its business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other Persons with which it has significant business relationships; (iii) use reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice; (iv) use reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary course of business manner, on a basis consistent with past practice; and use (vi) comply in all reasonable efforts to preserve intact its assets, Intellectual Property, business organization and relationships material respects with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Timeapplicable Laws. In addition, and without limiting the generality of the foregoing, except for matters Except as expressly permitted contemplated by this Agreement or as set forth on Section 6.01(a) of the Company Disclosure ScheduleSchedule 4.1, from between the date of this Agreement to and the Effective TimeClosing, the Company shall not, and shall cause each of the Subsidiaries not permit any Company Subsidiary to to, do any of the following without the prior written consent of Parentthe Purchaser: (a) (i) issue any debt securities, (Aii) declareincur any additional indebtedness, set aside (iii) assume, grant, guarantee or pay any dividends onendorse, or make any other distributions (whether in cash, stock, property accommodation or otherwise) in respect of, any of capital stock of arrangement making the Company or any Company SubsidiarySubsidiary responsible for, any liabilities or other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (B) split, combine or reclassify any of capital stock of the Company or any Company Subsidiary or issue or authorize the issuance obligations of any other securities in respect of, in lieu of or in substitution for, shares of capital stock of the Company or any Company Subsidiary Person or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls to acquire any such shares or other securities; (ii) issue, deliver, sell, grant, pledge, transfer or otherwise encumber or dispose of or subject to any Lien (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1) the issuance of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Option; (iii) amend the Company Charter, Company By-laws or other comparable charter or organizational documents; (iv) directly or indirectly acquire or agree to acquire, by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, any person or any acquisition by the Company or any Company Subsidiary of any assets that are material to the Company and the Company Subsidiaries; (v) (A) grant to any current or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume or guarantee any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to Person; (b) change any method of accounting or accounting practice used by the Company or any direct Subsidiary, other than such changes required by GAAP; (c) repurchase, redeem or indirect wholly owned subsidiary otherwise acquire or exchange any share of Common Stock or other equity interests other than in accordance with the terms of the Existing Preferred Stock and Class B Common Stock; except for issuances of Class A Common Stock pursuant to the exercise of options to purchase Class A Common Stock outstanding on the date hereof and listed on Schedule 2.3 or options issued in compliance with this clause (c), issue or sell any additional shares of the capital stock of, or other equity interests in, the Company or any Subsidiary, or securities convertible into or exchangeable for such shares or other equity interests, or issue or grant any subscription rights, options, warrants or other rights of any character relating to shares of such capital stock, such other equity interests or such securities, other than options to purchase Class A Common Stock granted after the date hereof in the ordinary course of business under the Company's existing stock option plans; or, except for dividends required to be paid on the Existing Preferred Stock, declare, set aside, make or pay any dividend, or make any distribution, in respect of any shares of capital stock of the Company; (ixd) engage in (A) any trade loading practices amend the Company's or any Subsidiary's charter or by-laws or other promotional sales or discount activity organizational documents except with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales respect to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have filing of the effect Certificates of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of businessDesignation; (xe) incur take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article II becoming false or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 inaccurate in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) respect as of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business Closing Date or (Bii) cancel any indebtedness that is material, individually or in of the aggregate, conditions to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant obligations of the Company or a Company Subsidiary Purchasers set forth in Section 5.2 not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or financebeing satisfied; or (xviiif) authorize, commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting of the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries), the provisions of actions restricted by this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.074.1.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, During the period from the date of this Agreement and continuing until the earlier to occur of the Effective Timetermination of this Agreement or the election of Merger Sub's designees representing at least a majority of the members of the Board in accordance with Section 1.03, the Company shallcovenants and agrees that, unless Parent shall otherwise agree in writing and unless otherwise expressly permitted hereunder, the Company shall conduct its business and shall cause each the businesses of its subsidiaries to be conducted, and the Company Subsidiaries toand its subsidiaries shall not take any action except, conduct its business in the usual, regular and ordinary course of business and in a manner consistent with past practice; and the Company shall use all reasonable commercial efforts to preserve substantially intact its assets, Intellectual Property, the business organization of the Company and relationships with customersits subsidiaries, suppliers, licensors, licensees, distributors and others having business dealings with them, and to keep available the services of its current officers the present officers, employees and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) consultants of the Company Disclosure Scheduleand its subsidiaries, and to preserve the present relationships of the Company and its subsidiaries with customers, suppliers and other persons with which the Company or any of its subsidiaries has significant business relations. By way of amplification and not limitation, neither the Company nor any of its subsidiaries shall, during the period from the date of this Agreement and continuing until the earlier to occur of the Effective Timetermination of this Agreement or the election of Merger Sub's designees representing at least a majority of the members of the Board in accordance with Section 1.03, the Company shall notdirectly or indirectly, and shall not permit any Company Subsidiary do or propose to do do, any of the following without the prior written consent of Parent, unless otherwise expressly permitted hereunder: (a) amend or otherwise change the Company's or any of its subsidiaries' Certificate of Incorporation or By-Laws; (b) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including, without limitation, any phantom interest) of the Company, any of its subsidiaries or affiliates (except for the issuance of shares of the Company Common Stock issuable pursuant to the exercise of Options under the Stock Option Plans, which Options are outstanding on the date hereof); (c) sell, pledge, dispose of or encumber any assets of the Company or any of its subsidiaries (except for (i) sales of assets in the ordinary course of business and in a manner consistent with past practice and (ii) dispositions of obsolete or worthless assets); (d) amend or change the period (or permit any acceleration, amendment or change) of exercisability of Options granted under the Stock Option Plans or authorize cash payments in exchange for any such Options; (i) (A) declare, set aside aside, make or pay any dividends on, dividend or make any other distributions distribution (whether in cash, stock, stock or property or otherwiseany combination thereof) in respect of, of any of its capital stock of the Company or any Company Subsidiarystock, other than dividends and distributions by except that a direct or indirect wholly owned subsidiary of the Company may declare and pay a dividend to its parent, (Bii) split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of capital stock of the Company or any Company Subsidiary or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls to acquire any such shares or other securities; (ii) issue, deliver, sell, grant, pledge, transfer or otherwise encumber or dispose of or subject to any Lien (A) any for shares of its capital stock, (B) any Voting Company Debt stock or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1) the issuance of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Option; (iii) amend the Company Charterterms of, Company By-laws repurchase, redeem or other comparable charter otherwise acquire, or organizational documentspermit any subsidiary to repurchase, redeem or otherwise acquire, any of its securities or any securities of its subsidiaries, or propose to do any of the foregoing; (ivf) directly sell, transfer, license, sublicense or indirectly acquire or agree to acquire, by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, any person or any acquisition by the Company or any Company Subsidiary otherwise dispose of any assets that are material to the Company and the Company Subsidiaries; Intellectual Property (v) (A) grant to any current or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation other than in the ordinary course of business consistent with past practice) or amend or modify any existing agreements with respect to any material Company Intellectual Property or Third Party Intellectual Property Rights; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof; (ii) incur any indebtedness for borrowed money (other than indebtedness incurred under existing credit facilities in the extent required under employment agreements ordinary course of business consistent with past practices) or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances except to employees in the ordinary course consistent with past practice; (iii) enter into or amend any contract or agreement other than in the ordinary course of business; (iv) authorize or make any capital expenditures or purchase of fixed assets that are not currently budgeted and that in the aggregate exceed $500,000; (v) terminate any Material Contract or amend any of its material terms (other than amendments to existing credit arrangements designed to remedy defaults thereunder); or (vi) enter into or amend any contract, agreement, commitment or arrangement to effect on any of the date hereof and matters prohibited by this Section 5.01(g); (h) except as set forth in Section 4.15 3.11(a) of the Company Disclosure Schedule, (B) increase the compensation payable or to become payable to its officers or directors or grant to any such current severance or former directortermination pay to, or enter into any employment or severance agreement with any director or officer or employee of the Company or any Company Subsidiary any increase in severance of its subsidiaries or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreementor, (D) establishexcept as required by law, adopt, enter into terminate or amend in any material respect any collective bargaining agreement or Company Benefit Employee Plan, ; (Ei) take any action action, other than as required by GAAP, to accelerate any rights change accounting policies or benefitsprocedures or cash maintenance policies or procedures (including, take any action without limitation, procedures with respect to fund or in any other way secure the payment revenue recognition, capitalization of compensation or benefits under any Company Benefit Agreement or Company Benefit Plandevelopment costs, or make any material determinations not in the ordinary course payments of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Optionaccounts payable and collection of accounts receivable); (vij) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume or guarantee any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election inconsistent with past practice or settle or compromise any material Tax liability liability, except to the extent the amount of any such settlement or refundcompromise has been reserved for on the consolidated financial statements contained in the Company SEC Reports, or would not have a Company Material Adverse Effect; (xii) (Ak) pay, discharge, settle settle, or satisfy any lawsuits, claims, liabilities, liabilities or obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement discharge or satisfaction, satisfaction in the ordinary course of business or in accordance and consistent with their terms, past practice of liabilities reflected or reserved against in, or contemplated by, in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial valueconsistent with past practice; (xiiil) adopt a plan except as may be required by law, take any action to terminate or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of amend any Company Subsidiary into the CompanyEmployee Plan; (xivm) make, enter into or renew, extend, amend, modify, or waive permit any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except increase in the ordinary course number of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services employees of the Company or any Company Subsidiary or otherwise limiting the freedom of its subsidiaries employed by the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates subsidiaries, as the case may be, on the date hereof other than pursuant to an employee plan to be agreed to by the Company and Parent as promptly as practicable after the consummation of the Offer or the Merger; (xvii) make any change date hereof acting reasonably and in personnel relating to key employees, operations or financegood faith; or (xviiin) authorizetake or fail to take, commit or agree in writing or otherwise to take or fail to take, any of the actions described in Section 5.01(a) through (m) above, or any action referred which would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or prevent the Company from performing or cause the Company not to perform its covenants hereunder or result in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting any of the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries), the provisions of this Section 6.01(a) shall be limited by and subject conditions to the provisions of Section 10.07Merger set forth herein not being satisfied.

Conduct of Business by the Company. Except for matters contemplated by this AgreementThe Company covenants and agrees that, from the date of this Agreement to the Effective Time, the Company shall, and shall cause each of the Company Subsidiaries to, shall conduct its their business in the usual, regular and ordinary course of business and in substantially the same manner as previously conducted. The Company shall use all its commercially reasonable efforts to (w) preserve intact its assets, Intellectual Property, the business organization and relationships with customersassets of the Company and each Company Subsidiary, suppliers, licensors, licensees, distributors and others having business dealings with them, and to (x) keep available the services of its current officers the present officers, employees and employees consultants of the Company and each Company Subsidiary, (y) maintain in effect Material Contracts and (z) preserve the present relationships of the Company and each Company Subsidiary with customers, licensees, suppliers and other persons with which the objective of preserving unimpaired their goodwill and ongoing Company or any Company Subsidiary has significant business at the Effective Timerelations. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of the Company Disclosure Schedule, from the date of this Agreement to the Effective Time, neither the Company shall not, and shall not permit nor any Company Subsidiary to shall do any of the following without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld, conditioned or delayed): (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any of its shares of capital stock of the Company or any Company Subsidiary, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parentstock, (B) split, combine or reclassify any of its shares of capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution forfor its capital stock, shares of capital stock of the Company or any Company Subsidiary or (C) purchase, redeem or otherwise acquire any shares of its capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares interests or other securities, (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization or alter through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure or ownership, or (E) pledge after the date hereof any shares of its capital stock; (ii) issue, deliver, sell, grant, pledge, transfer sell or otherwise encumber or dispose of or subject to any Lien grant (A) any shares of its capital stock, (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any optionsoptions (other than vesting of currently outstanding options and warrants pursuant to their terms), warrants or rights of any kind to acquire, any such sharesshares of its capital stock, Voting Company Debt, voting securities or convertible or exchangeable securities or (DC) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stockinterest-based performance units, other than (1) units of the issuance of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up OptionCompany; (iii) amend the Company Charter, Company By-laws Certificate of Incorporation or other comparable charter or organizational documentsBylaws; (iv) directly or indirectly acquire or agree to acquire, acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any equity interest in, in or business of any corporation, partnership, joint venture, association or a substantial portion other business organization or division thereof or (B) any assets in excess of $50,000 in the aggregate; (v) sell, transfer, deliver, lease, license, sublicense, mortgage, pledge, encumber or otherwise dispose of (in whole or in part), or create, incur, assume or allow (other than with respect to those certain liens in effect as of the assets ofdate of this Agreement securing the lessors’ interest in leased equipment used by the Company and liens in effect as of the date of this Agreement in favor of lenders, all as set out in the Company Disclosure Letter) any lien on, any person of its assets (including any Company Intellectual Property) other than (A) in the ordinary course of business consistent with past practice, but in no event shall such dispositions exceed $50,000 individually or $150,000 in the aggregate for the Company and all Company Subsidiaries taken as a whole, or (B) pursuant to the terms of Material Contracts which are set forth in the Company Disclosure Letter; (vi) (A) enter into any agreement, other than in the ordinary course of business, that if entered into prior the date hereof would be a Material Contract required to have been disclosed pursuant to Section 3.13; or (B) modify, amend in any material respect, transfer, terminate or waive any material rights under any Material Contract in any manner adverse to the Company or any acquisition by Company Subsidiary; (vii) pay, discharge, satisfy or settle any litigation, except any settlement that would not: (A) impose any injunctive or similar order on the Company or any Company Subsidiary; or restrict in any way the business of the Company or any Company Subsidiary; or (B) exceed $50,000 in cost or value to the Company or any Company Subsidiary of any assets that are material to in the Company and the Company Subsidiariesaggregate for all such settlements; (vviii) (A) grant to enter into or amend any current contract, transaction, indebtedness or former directorother arrangement in which any of its directors or other affiliates, officer or employee of the Company or any Company Subsidiary any increase in compensation of their respective affiliates or pay any bonus, family members have a direct or indirect financial interest; (ix) except for increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on as of the date hereof hereof, and which are set forth in Section 4.15 of the Company Disclosure ScheduleLetter, (A) hire or terminate any employee or consultant having an annual salary or fee in excess of $150,000 or (B) grant to any such current of the employees, officers or former director, officer or employee directors of the Company or any Company Subsidiary Subsidiary, any increase in (i) compensation or fringe benefits (including, without limitation, bonuses), or (ii) severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Option; (vix) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practicespractices affecting its reported consolidated assets, liabilities or results of operations, except insofar as may have been required by a change in GAAP or LawGAAP; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viiixi) (A) incur, assume or guarantee incur any indebtedness for borrowed moneymoney or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiarysecurities, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ixxii) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur make or agree to incur make any new capital expenditure or expenditures that, in the aggregate, are in excess of $1,000,000 25,000 in any calendar quarteran individual case and $50,000 in the aggregate for all cases; (xixiii) make or change any material Tax election or election, settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle refund or satisfy file any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any claims or rights of substantial value; (xiii) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Companyamended Tax Return; (xiv) makeenter into, enter into adopt or renewamend or terminate any (A) employment or consulting agreement where the annual salary or fee associated with such employment or consulting agreement is in excess of $150,000 or where such employment or consulting agreement has a term of more than one (1) year, extend(B) severance agreements in excess of $50,000, amend(C) Company Benefit Plan or (D) other employee benefit agreement, modifytrust, plan, fund award or waive any material provisions other arrangement for the benefit or welfare of any Contract director, officer or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of businessemployee; (xv) instituteexcept as otherwise required by Law, settle, enter into any or agree modify in any respect any labor or collective bargaining agreement or any other agreement or commitment to settle or relating to any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entitylabor union; (xvi) agree to enter into any covenant transaction with, or enter into any agreement, arrangement, or understanding with any of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or Company’s affiliates that would so limit the freedom be required to be disclosed pursuant to Item 404 of Parent or any of its affiliates after the consummation of the Offer or the MergerSEC Regulation S-B; (xvii) make engage any change in personnel relating investment or financial advisor prior to key employees, operations or financethe receipt of an Acquisition Proposal; or (xviii) take, authorize, commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting of the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries), the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. (a) Except for matters contemplated set forth in Section 5.1 of the Company Disclosure Letter or otherwise expressly required by this AgreementAgreement (including to effect any of the transactions contemplated hereby) or required by applicable Law or with the prior written consent of Parent, from the date of this Agreement to the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall, and shall cause each of the Company Subsidiaries Subsidiary to, (i) conduct its business in the usual, regular and ordinary course of business and (ii) use all reasonable best efforts to (x) preserve intact its assetsbusiness organization, Intellectual Property, assets and advantageous business organization and relationships with its customers, suppliers, licensors, licensees, licensees and distributors and others having business dealings with them, and to (y) keep available the services of its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective Time. employees. (b) In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 5.1 of the Company Disclosure Letter or otherwise expressly permitted required by this Agreement or set forth on Section 6.01(a) required by applicable Law or with the prior written consent of the Company Disclosure ScheduleParent (which shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement to the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, and shall not permit any cause each Company Subsidiary to not to, do any of the following without the prior written consent of Parentfollowing: (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwiseany combination thereof) in respect of, any of its capital stock of the Company stock, other equity interests or any Company Subsidiaryvoting securities, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company Subsidiary to its parent, (B) split, combine combine, subdivide, adjust, amend the terms of, or reclassify any of its capital stock, other equity interests or voting securities, or securities convertible into or exchangeable or exercisable for capital stock of the Company or any Company Subsidiary other equity interests or voting securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution forfor its capital stock, shares of capital stock of the Company other equity interests or any Company Subsidiary voting securities or (C) purchaserepurchase, redeem or otherwise acquire acquire, or offer to repurchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of or voting securities of, or equity interests in, the Company or any Company Subsidiary or any other securities thereof of the Company or any rightsCompany Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, optionsor equity interests in, warrants the Company or calls any Company Subsidiary, or any warrants, calls, options or other rights to acquire any such shares capital stock, securities or interests, other securitiesthan (1) the withholding of Shares to satisfy tax obligations with respect to awards granted pursuant to the Company Stock Plans, (2) the acquisition by the Company of awards granted pursuant to the Company Stock Plans in connection with the forfeiture of such awards and (3) in connection with the conversion of Company Notes in accordance with the terms of the Company Indenture; (ii) issue, deliver, sell, grant, pledgetransfer, transfer dispose of, pledge or otherwise encumber or dispose of or subject to any Lien (except for transactions solely among the Company and any wholly owned Company Subsidiary and for any Liens in favor of the administrative agent under the Company’s existing first lien and second lien credit agreements in effect as of the date hereof), or enter into any Contract with respect to, (A) any shares of its capital stockstock of the Company or any Company Subsidiary, (B) any Voting other equity interests or voting securities of the Company Debt or other voting securitiesany Company Subsidiary, (C) any securities convertible into or exchangeable foror exercisable for capital stock or voting securities of, or other equity interests in, the Company or any optionsCompany Subsidiary, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stockwarrants, “phantom” calls, options or other rights to acquire any capital stock rightsor voting securities of, stock appreciation rights or stockother equity interests in, the Company or any Company Subsidiary, or (E) any Company Voting Debt except, in each case of (A)-(E), for issuing Shares (i) in respect of equity or equity-based performance units, other than (1) awards outstanding as of the issuance of Company Common Stock upon date hereof under the exercise of Company Stock Options outstanding on the date of this Agreement Plans and (ii) as may be required in accordance with their current the terms and (2) of the issuance Company Indenture in effect as of Company Common Stock pursuant to the Top-Up Optiondate hereof; (iii) amend the Company CharterCharter or the Company Bylaws or the equivalent organizational documents of any Company Subsidiary, Company By-laws or other comparable charter or organizational documentsexcept as may be required by applicable Law; (iv) directly or indirectly acquire or agree except pursuant to acquire, by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business the terms of or a substantial portion of the assets of, any person or any acquisition by the Company or any Company Subsidiary of any assets that are material to the Company and the Company Subsidiaries; (v) Plan or as required by applicable Law: (A) grant materially increase the compensation (including salaries, wages and bonuses) or benefits payable to any current or former director, officer or employee of the Company or any a Company Subsidiary any increase in compensation or pay any bonusSubsidiary, except for increases of cash compensation (1) in the connection with ordinary course reviews or promotions for the Company’s 2020 fiscal year, which increases, if any, shall be consistent with past practice and which shall not exceed 3% of business or the aggregate Company expense for compensation and benefits as of the date hereof; and (2) increases in base salary (and, to the extent required under employment agreements based on a percentage of base salary, corresponding increases in effect on the date hereof and set forth annual bonus targets) made in Section 4.15 connection with promotions for employees with annual base salary not in excess of the Company Disclosure Schedule, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not $200,000 made in the ordinary course of business, (B) grant any new change in control, severance, retention or other similar bonus to, or enter into or amend the terms of any employment agreement with, any employee of the Company or a Company Subsidiary, (C) grant any equity awards to any employee of the Company or a Company Subsidiary, except for sign-on equity grants to new employees made at levels and at times consistent with past practice for such position, and which provide for the ability of a successor to the Company in a change of control transaction to assume or roll such awards, (D) establish, amend, terminate or materially increase the benefits or costs provided under any collective bargaining agreement Company Plan that is a health, welfare or retirement plan, (E) accelerate the vesting or payment of, or take any action to fund, any benefit or payment provided to employees or service providers of the Company Benefit Plan or the Company Benefit Agreement Subsidiaries; or (F) amend or modify issue any Company Stock OptionShares in connection with a Purchase Date (as defined in the ESPP) pursuant to the ESPP as a primary issuance; (viv) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by GAAP (after the date of this Agreement); (vi) directly or indirectly (A) acquire or agree to acquire or (B) divest or agree to divest, in any transaction any equity interest in or business or division of any Person, including by merger, consolidation, or acquisition of assets (other than any transaction solely between the Company and a change wholly owned Company Subsidiary or solely between wholly owned Company Subsidiaries) if, solely in GAAP the case of clause (A), the amount of the consideration paid or Lawtransferred by the Company and the Company Subsidiaries in connection with any such transactions would exceed $2,000,000 individually or $5,000,000 in the aggregate; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license license, covenant not to assert, mortgage, sell, transfer, abandon, allow to lapse, and leaseback, pledge or otherwise dispose of encumber or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viii) (A) incur, assume or guarantee any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to non-officer employees any Permitted Lien), or otherwise dispose of any material properties, rights or assets (other than sales of products or services in the ordinary course of business) or any interests therein that individually have a fair market value in excess of $2,000,000 or in the aggregate have a fair market value in excess of $5,000,000, except (A) pursuant to Company Material Contracts in effect on the date of this Agreement (or entered into after the date of this Agreement without violating the terms of this Agreement), (B) any of the foregoing with respect to inventory in the ordinary course of business, (C) any of the foregoing with respect to obsolete or worthless equipment in the ordinary course of business, (D) in relation to mortgages, liens and pledges to secure Indebtedness for borrowed money permitted to be incurred under Section 5.1(b)(viii) and guarantees thereof or (E) for any transactions solely among the Company and any wholly owned Company Subsidiary in the ordinary course of business; (viii) (x) incur, guarantee or assume, directly or indirectly, any Indebtedness, except for (A) Indebtedness incurred in the ordinary course of business in respect of obligations under a lease that are required to be capitalized for financial reporting purposes under GAAP (with the amount of Indebtedness in respect of any such lease being the capitalized amount thereof that would appear on a balance sheet prepared in accordance with GAAP and which amount shall not exceed $2,000,000), (B) intercompany Indebtedness solely among the Company and the wholly owned Company Subsidiaries in the ordinary course of business, or (C) making borrowings under the Company’s revolving credit facility (as existing on the date hereof) solely for purposes of funding capital expenditures made in accordance with clause (ix) or working capital requirements, in each case, in the ordinary course of business; or (y) make any loans, or advances to, or capital contributions to, or investments in, any other personPerson, other than or waive, settle, cancel or release any amounts owed to the Company or any direct or indirect wholly owned subsidiary Company Subsidiary, including grants of the Companymaterial refunds, credits, rebates and allowances; (ix) engage make, or agree or commit to make any capital expenditure in (A) any trade loading practices excess of $3,000,000 individually or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including in the current fiscal quarter) sales to the trade or otherwise aggregate for all such capital expenditures that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments are not contemplated by the Company or any Company Subsidiary FY 2019 capital expenditure forecast (copies of which were previously provided to Parent) provided that would otherwise be expected (based on past practice) to be made such expenditures are in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur or agree to incur any new capital expenditures thatcommence, in the aggregatewaive, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or release, assign, settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise)Proceeding, other than the paymentwaivers, dischargereleases, settlement assignments, settlements or satisfaction, compromises in the ordinary course of business that involve only the payment of monetary damages not in excess of $2,500,000 in the aggregate; (xi) enter into, modify, amend, extend, renew, replace or in accordance with their terms, of liabilities reflected terminate any collective bargaining or reserved against in, or contemplated by, other labor union Contract applicable to the most recent consolidated financial statements (or the notes thereto) employees of the Company included in or any of the Filed SEC Documents or incurred since the date of such financial statements Company Subsidiaries; (xii) other than in the ordinary course of business business, materially amend or (B) cancel any indebtedness that is materialmodify, individually terminate, or in the aggregaterelease, to the Company and the Company Subsidiaries taken as a whole, assign or waive any claims rights under, any Company Material Contract, or any teaming agreement to which the Company or any Company Subsidiary is a party or enter into, materially amend or modify, terminate, or release, assign or waive any rights under, any Contract that would be a Company Material Contract if it had been entered into prior to the date of substantial valuethis Agreement; (xiii) except as required by applicable Law, (A) make, change or revoke any material Tax election; (B) change any material method of Tax accounting or annual Tax accounting period; (C) file any material amendment to a Tax Return; (D) settle or compromise any material Proceeding relating to Taxes; (E) obtain or request any material Tax ruling or closing agreement; (F) take any position on any material income Tax Return if in the Company’s Tax Return preparer’s reasonable judgement such position is not “more likely than not” to be sustained; or (G) surrender any right to obtain a material Tax refund; (xiv) terminate or modify in any material respect any Insurance Policy, or fail to maintain any Insurance Policy with at least the same coverage and on terms and conditions not materially less advantageous to the insured than such existing Insurance Policy; (xv) enter into any new line of business or terminate any existing line of business or division; (xvi) engage in any transactions, arrangements or understanding with any Affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (xvii) adopt a plan or agreement of, or resolutions providing for or authorizing, of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for reorganization, or file a petition in bankruptcy or consent to the liquidation filing of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or financebankruptcy petition under applicable Law; or (xviii) authorizeauthorize any of, commit or commit, resolve or agree to take any action referred of, the foregoing actions. (c) All notices, requests, instructions, communications or other documents to be given in connection with any consultation or approval required pursuant to this Section 5.1 shall be in writing and shall be deemed given as provided for in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)8.6, the provisions of this Section 6.01(a) and, in each case, shall be limited by and subject addressed to such individuals as the provisions of Section 10.07Parties shall designate in writing from time to time.

Conduct of Business by the Company. Except for matters set forth in the Company Disclosure Letter or otherwise contemplated by this Agreement, from the date of this Agreement to the Effective Time, Time the Company shall, and shall cause each of the Company Subsidiaries Subsidiary to, conduct its business in the usual, regular and ordinary course of business and in substantially the same manner as previously conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact its assetscurrent business organization, Intellectual Property, business organization keep available the services of its current officers and employees and keep its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them, and them to keep available the services of end that its current officers and employees with the objective of preserving unimpaired their goodwill and ongoing business shall be unimpaired at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of in the Company Disclosure ScheduleLetter or otherwise contemplated by this Agreement, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to to, do any of the following without the prior written consent of ParentPurchaser: (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any of its capital stock of the Company or any Company Subsidiarystock, other than dividends the declaration and distributions payment of a cash dividend (the "Special Dividend") in an amount determined by a direct or indirect wholly owned subsidiary of the Company Board (but in no event in an amount that would cause the Company to its parentnot satisfy the conditions in Section 7.02(h)) to all holders of Company Common Stock on the record date for such dividend (the "Dividend Amount" and, if such dividend is declared and paid, the amount of such dividend payable in respect of each share of Company Common Stock as of the record date shall be referred to as the "Per Share Dividend Amount"), (B) split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company or any Company Subsidiary stock, or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securities; (ii) issue, deliver, sell, grant, pledge, transfer sell or otherwise encumber or dispose of or subject to any Lien grant (A) any shares of its capital stock, (B) any Voting Company Debt voting securities or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance unitssecurities, other than (1) the issuance of Company Common Stock upon the exercise of Company Employee Stock Options outstanding on the date of this Agreement and in accordance with their current present terms, (2) the issuance of additional Company Employee Stock Options pursuant to the Company Stock Plans in accordance with their present terms and consistent with prior practice and the issuance of Company Common Stock upon the exercise of such Company Employee Stock Options, (23) the issuance of Company Common Stock pursuant to the Top-Up OptionCompany Stock Plans or the Company ESPP and (4) in connection with the replacement of lost, stolen or destroyed certificates; (iii) amend the Company Charterits certificate of incorporation, Company Byby-laws or other comparable charter or organizational documents, except for such amendments to its certificate of incorporation, by-laws and other comparable charter or organizational documents that do not have an adverse affect on the Merger and the other Transactions; (iv) directly or indirectly acquire or agree to acquire, acquire (A) by merging or consolidating with, or by purchasing a substantial equity interest in or portion of the assets of, or by any other manner, any equity interest in, business of or a substantial portion of the assets of, any person or any acquisition by the Company corporation, partnership, joint venture, association or any Company Subsidiary of other business organization or division thereof or (B) any assets that are material material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole, except purchases of inventory in the ordinary course of business consistent with past practice; (v) (A) grant to any current or former director, executive officer or employee director of the Company or any Company Subsidiary any increase in compensation or pay any bonuscompensation, except for increases of cash compensation in the ordinary course of business consistent with prior practice or to the extent required under employment agreements in effect on as of the date hereof and set forth in Section 4.15 of the Company Disclosure Schedulethis Agreement, (B) grant to any such current or former director, executive officer or employee director of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on as of the date hereof and set forth in Section 4.15 of the Company Disclosure Schedulethis Agreement, (C) establish, adopt, enter into any severance or amend termination agreement with any Company Benefit Agreementsuch executive officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, Plan or (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of businessbusiness consistent with prior practice, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock OptionPlan; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practicespractices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or LawGAAP; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a valuethat are material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole, except sales of inventory and excess or obsolete assets in excess the ordinary course of $100,000business consistent with past practice; (viii) (A) incur, assume or guarantee incur any indebtedness for borrowed moneymoney or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another personPerson, enter into any “"keep well” " or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances (other than advances to nonexcept for short-officer employees term borrowings incurred in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary of the Companybusiness consistent with past practice; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (x) incur make or agree to incur make any new capital expenditure or expenditures that, individually, is in excess of $25,000 or, in the aggregate, are in excess of $1,000,000 in any calendar quarter250,000; (xix) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xiixi) (A) pay, discharge, settle discharge or satisfy any claims, liabilities, liabilities or obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents or incurred since the date of such financial statements in the ordinary course of business consistent with past practice, or (B) cancel any material indebtedness that is material, (individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, ) or waive any claims or rights of substantial value; (xiiixii) adopt a plan or agreement oftake, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation of any Company Subsidiary into the Company; (xiv) make, enter into or renew, extend, amend, modify, or waive any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of business; (xv) institute, settle, or agree to settle any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or permit any Company Subsidiary to compete in take, any line action that could reasonably be expected to prevent the Merger from qualifying as a "reorganization" within the meaning of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation Section 368(a) of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or financeCode; or (xviiixiii) authorizeauthorize any of, or commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters contemplated by this Agreement, During the period from the date of this Agreement to the Effective Time, except with the prior written consent of Parent (which consent shall not be unreasonably withheld or delayed) or as specifically contemplated by this Agreement or as set forth in Section 4.01(a) of the Company Letter, the Company shall, and shall cause each of the Company its Subsidiaries to, conduct its business carry on their respective businesses in the usual, regular and ordinary course of business consistent with past practice and use commercially reasonable efforts to comply with all applicable Laws and, to the extent consistent therewith, use commercially reasonable efforts to preserve intact its assetstheir material assets and technology, Intellectual Property, business organization and their relationships with material customers, suppliers, licensors, licensees, distributors and others having business dealings with them, to maintain their material franchises, rights and Permits and to keep available the services of its current officers and employees comply with the objective of preserving unimpaired their goodwill and ongoing business at Company MARC Processes. During the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or set forth on Section 6.01(a) of the Company Disclosure Schedule, period from the date of this Agreement to the Effective Time, except with the prior written consent of Parent or as specifically contemplated by this Agreement or as set forth in Section 4.01(a) (which consent shall not be unreasonably withheld or delayed) of the Company Letter, the Company shall not, and shall not permit any Company Subsidiary to do any of the following without the prior written consent of Parentits Subsidiaries to: (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any of its capital stock of the Company or any Company Subsidiaryother equity or voting interests, other than except for (1) dividends and distributions by a direct or indirect wholly owned subsidiary Subsidiary of the Company to its parentparent and (2) ordinary quarterly dividends of the Company to holders of Company Common Stock in an amount of not more than $0.025 per share, (B) split, combine or reclassify any of its capital stock of the Company or any Company Subsidiary other equity or voting interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock of the Company or any Company Subsidiary other equity or voting interests, (C) purchase, redeem or otherwise acquire any shares of capital stock stock, other equity or voting interests or any other securities of the Company or any Company Subsidiary of its Subsidiaries or any other securities thereof or any rights, options, warrants warrants, calls or calls rights to acquire any such shares or other securitiessecurities (including any Company SARs, Company RSU or Company Restricted Stock, except pursuant to the forfeiture conditions of such Company SAR, Company RSU or Company Restricted Stock or tax withholding provisions of such Company SAR, Company RSU or Company Restricted Stock, in each case only if and to the extent required by the terms of such awards as in effect on the date of this Agreement) or (D) knowingly take any action to amend, modify or change any material term of any indebtedness of the Company or any of its Subsidiaries that would knowingly materially impair the ability the ability of Parent to refinance such indebtedness after the Closing; (ii) other than the issuance of shares by the wholly-owned Subsidiary of the Company to the Company or another of its wholly-owned Subsidiaries, issue, deliver, sell, grant, pledge, transfer deliver or otherwise encumber or dispose of or subject to sell any Lien (A) any shares of its capital stock, other equity or voting interests or Equity Equivalents (B) any Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options SARs, the settlement of Company RSUs or the vesting of Company Restricted Stock, in each case outstanding on as of the date of this Agreement and in accordance with their current terms only if and (2) the issuance of Company Common Stock pursuant to the Top-Up Optionextent required by the terms of the Company Stock Plans as in effect on the date of this Agreement) or (B) securities convertible into, or exchangeable or exercisable for, or any options, warrants, calls or rights to acquire, any such stock, interests or Equity Equivalents; (iii) amend the Company Charter, Company By-laws its certificate of incorporation or other comparable charter bylaws (or similar organizational documents); (iv) directly or indirectly acquire or agree to acquire, acquire by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of all or a substantial portion of the assets of, or by purchasing all or a substantial equity or voting interest in, or by any other manner, any business or person or any acquisition by the Company division thereof or any Company Subsidiary other assets outside of any assets that are material to the Company and ordinary course of business consistent with past practice, with a value or purchase price in the Company Subsidiariesaggregate in excess of $10,000,000; (v) sell, transfer, assign, lease, license, sell and lease back, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material properties or assets (including Intellectual Property, any shares of capital stock, equity or voting interests or other rights, instruments or securities), except (A) grant to any current or former director, officer or employee of the Company or any Company Subsidiary any increase in compensation or pay any bonus, except for increases of cash compensation in the ordinary course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Scheduleconsistent with past practice, (B) grant to any such current or former director, officer or employee of the Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedule, (C) establish, adopt, enter into or amend any Company Benefit Agreement, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not for Permitted Liens incurred in the ordinary course of businessbusiness consistent with past practice and (C) sales, under any collective bargaining agreement leases, licenses or Company Benefit Plan or Company Benefit Agreement or (F) amend or modify any Company Stock Optionother dispositions of assets with a fair market value not in excess of $10,000,000 in the aggregate; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Law; (viiA) except licenses other than (1) trade debt and trade letters of Company Intellectual Property to customers credit in the ordinary course of businessbusiness consistent with past practices, directly (2) draws on revolving credit lines in place on the date of the execution of this Agreement (or indirectly sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets with a value, individually or in the aggregate, in excess of $100,000; (viiireplacements thereof) (Aso long as such replacements do not materially increase the credit line or materially and adversely impact the terms of the credit line) incuror (3) in an aggregate amount of not more than $10,000,000, assume incur any indebtedness, including by way of a guarantee or guarantee any indebtedness for borrowed moneyan issuance or sale of debt securities, or issue or and sell any debt securities or warrants options, warrants, calls or other rights to acquire any debt securities of the Company or any Company Subsidiaryof its Subsidiaries, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, foregoing or (B) other than (1) customer, dealer or vendor financing in the ordinary course of business consistent with past practices or (2) in an aggregate amount of not more than $10,000,000, make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other person, other than to the Company or any direct or indirect wholly owned subsidiary Subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (D) any other promotional sales or discount activity, in each case in clauses (A) through (D) in a manner outside the ordinary course of business; (xvii) incur or agree commit to incur any new capital expenditures thatexpenditures, or any obligations or liabilities in the aggregateconnection therewith, that are in excess of $1,000,000 the amounts detailed in any calendar quarterSection 4.01(a)(vii) of the Company Letter; (xiviii) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) subject to Section 4.01(a)(ix), (A) pay, discharge, settle or satisfy any claimsclaims (including any claims of stockholders and any stockholder litigation relating to this Agreement, liabilitiesthe Merger or any other transaction contemplated by this Agreement or otherwise), liabilities or obligations or litigation (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, satisfaction (1) in the ordinary course of business consistent with past practice (2) as required by their terms on the date of this Agreement or (3) not to exceed $5,000,000, in accordance with their termseach case, the payment, discharge, settlement or satisfaction of liabilities reflected which does not include any material obligation (other than the payment of money) to be performed by the Company or reserved against inits Subsidiaries following the Closing Date, (B) waive, relinquish, release, grant, transfer or assign any right of material value or (C) waive any material benefits of, or contemplated byagree to modify in any adverse respect, or consent to any matter with respect to which its consent is required under, any confidentiality, standstill or similar Contract to or by which the most recent consolidated financial statements Company or any of its Subsidiaries is a party or bound, except as would not reasonably be expected to materially impair the manner in which the Company and its Subsidiaries operate the business as of the date hereof; (ix) discharge, resolve, settle or satisfy any investigations, claims, or liabilities (whether absolute, accrued, asserted or unasserted, contingent or otherwise) by or with any Governmental Entity in connection with, or arising out of, or related to any alleged or actual violation of Law (other than any discharge, resolution, settlement or satisfaction involving the notes theretopayment of money in an amount not to exceed $1 million and which does not involve (A) any non-monetary remedy or relief that imposes a non-de minimis burden on the operation of the business of the Company included in or its Subsidiaries or (B) any admission by the Filed SEC Documents Company or incurred since the date any of such financial statements its Subsidiaries of any fault or liability); (x) other than in the ordinary course of business consistent with past practices, enter into any material lease or sublease of real property (whether as a lessor, sublessor, lessee or sublessee), or acquire any material ownership interest in real property used in manufacturing or production; (xi) other than in the ordinary course of business consistent with past practices, (A) modify or amend in any material respect, or accelerate, terminate or cancel, any Specified Contract or any Contract that if in existence on the date of this Agreement would have been a Specified Contract or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, or waive any right to enforce, relinquish, release, transfer or assign any material rights or claims thereunder; (xii) other than Contracts with customers for the sales of products or rights of substantial valueservices, enter into any Specified Contract; (xiii) adopt enter into any Contract containing any provisions having the effect of providing that the consummation of the Merger or the other transactions contemplated by this Agreement or compliance by the Company with the provisions of this Agreement will result in a plan material penalty to the Company or agreement of, any of its Subsidiaries or resolutions providing for cause the Company or authorizing, complete any of its Subsidiaries to forfeit any material rights or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for benefits in existence on the liquidation date of any Company Subsidiary into the Companythis Agreement; (xiv) makeexcept as required to ensure that any Benefit Plan or Benefit Agreement in effect on the date of this Agreement is not then out of compliance with the terms of such Benefit Plan or Benefit Agreement or with applicable Law, as specifically required pursuant to this Agreement, or except as specifically contemplated by Section 5.05(e), (A) adopt, establish, enter into into, terminate, amend or renewmodify any Benefit Plan or Benefit Agreement (or any arrangement that would be a Benefit Plan or Benefit Agreement if it were in existence on the date hereof), extend, amend, modify(B) increase the compensation or benefits of, or waive pay any material provisions bonus or award to, or grant any loan to, any Company Employees or any former employee or current or former independent contractor of the Company or any Contract of its Subsidiaries, except for increases in compensation in the ordinary course of business consistent with past practice, (C) grant or commitment amend any award under any Benefit Plan (including the grant or relinquish or waive any material Contract amendment of stock options, restricted stock, stock appreciation rights, performance units, stock purchase rights or agree other equity or equity-based compensation under Company Stock Plans or otherwise) or remove or modify existing restrictions in any Benefit Plan or Benefit Agreement or awards made thereunder, (D) increase in any manner the severance or termination compensation or benefits of, any Company Employees or former employees of the Company or any of its Subsidiaries or grant or pay any severance or termination compensation or benefits to any Company Employees or former employees of the termination Company or any of any material Contract, its Subsidiaries except in the ordinary course of businessbusiness consistent with past practice and in accordance with the terms of the Benefit Plans in effect on the date hereof, (E) enter into any trust, annuity or insurance Contract or similar agreement or take any other action to fund or in any other way secure the payment of material compensation or benefits under any Benefit Plan or Benefit Agreement, (F) take any action to accelerate the time of payment or vesting of any rights, compensation, benefits or funding obligations under any Benefit Plan or Benefit Agreement or otherwise; (xv) institute, settle, adopt or agree to settle enter into any action, claim or proceeding pending or threatened before any arbitrator, court collective bargaining agreement or other Governmental Entitylabor union Contract or agreement with works council or similar organization applicable to the employees of the Company or any of its Subsidiaries or enter into any agreement with a labor contractor or third-party employer for which the Company or any of its Subsidiaries may have liability; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or write down any of its affiliates after the consummation of the Offer material assets, or the Mergermake any change in any financial or tax accounting principle, method or practice, other than as required by GAAP or applicable Law; (xvii) make take any change action or knowingly fail to take any action which action or failure to act would result in personnel relating to key employeesthe material abandonment, operations loss or financereduction in value (individually or in the aggregate) of the Intellectual Property of the Company and its Subsidiaries; or (xviii) authorizeauthorize any of, commit or commit, resolve or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.

Conduct of Business by the Company. Except for matters contemplated expressly permitted by this Agreementthe Transaction Agreements, from the date of this Agreement to the Effective Time, Time the Company shall, and shall cause each of the Company Subsidiaries Subsidiary to, conduct its business in the usual, regular ordinary and ordinary usual course of business and use all its commercially reasonable efforts to preserve intact its assetscurrent business organization, Intellectual Propertykeep available the services of its officers and employees, business organization and maintain its relationships with customers, suppliers, vendors, licensors, licensees, distributors and agents and others having business dealings with them, them and to keep available preserve the services goodwill of its current officers the Company and employees with the objective of preserving unimpaired their goodwill and ongoing business at the Effective TimeCompany Subsidiaries. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or and except as set forth on in Section 6.01(a) 6.01 of the Company Disclosure ScheduleLetter, from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to to, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed: (i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwiseother assets) in respect of, any of its capital stock of the Company stock, or any Company Subsidiaryother equity or voting interests, other than dividends and distributions by a direct or indirect wholly wholly-owned subsidiary of the Company Subsidiary to its parent, (B) split, combine or reclassify any of its capital stock of the Company stock, or any Company Subsidiary other equity or voting interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, for shares of its capital stock of the Company stock, or any Company Subsidiary other equity or voting interests, (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, options, warrants or calls options to acquire any such shares or other securitiessecurities or (D) 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 Company Subsidiary; (ii) authorize for issuance, issue, deliver, sell, grant, pledge, transfer sell or otherwise encumber or dispose of or subject to any Lien grant (A) any shares of its capital stock, (B) any Company Voting Company Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (1) the issuance of Company Common Stock upon the exercise of Company Employee Stock Options outstanding on the date of this Agreement and in accordance with their current terms and (2) the issuance of Company Common Stock pursuant to the Top-Up Optionpresent terms; (iii) amend the Company Charterits certificate of incorporation, Company Byby-laws or other comparable charter or organizational documents; (iv) directly or indirectly acquire or agree to acquire, acquire (A) by merging or consolidating with, or by purchasing or by any other manner, any equity interest in, business of or a substantial portion of the assets of, or by any person other manner, any business or any acquisition by the Company Person or any Company Subsidiary of division thereof or (B) any assets that are material to outside the Company ordinary and the Company Subsidiariesusual course of business; (v) (A) grant to any current present or former directoremployee, officer or employee director of the Company or any Company Subsidiary any increase in compensation or pay any bonusfringe benefits, except for increases of cash compensation in salary for non-officer employees in the ordinary and usual course of business or to the extent required under employment agreements in effect on the date hereof and set forth in Section 4.15 of the Company Disclosure Schedulebusiness, (B) grant to any such current present or former directoremployee, officer or employee director of the Company or any Company Subsidiary any increase in severance or termination benefits or pay, except (C) other than entering into employment agreements with employees of the Company in the ordinary and usual course of business and in the standard form attached to the extent required under any agreement in effect on the date hereof and set forth in Section 4.15 6.01 of the Company Disclosure Schedule, (C) establish, adoptLetter, enter into or amend any Company Benefit Agreementemployment, consulting, indemnification, severance or termination agreement with any such present or former employee, officer or director, (D) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan, (E) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary and usual course of business, under any collective bargaining agreement or Company Benefit Plan or Company Benefit Agreement or Plan, (F) loan or advance money or other property to any present or former employee, officer or director of the Company or of any Company Subsidiary, other than travel and expense reimbursements in the ordinary and usual course of business, (G) grant any new, or amend any existing, Company Employee Stock Option or enter into any agreement under which any Company Employee Stock Option would be required to be issued, (H) take any action (or fail to take any action) which action (or failure to act) would impair the ability of the Company or any Company Subsidiary (or any successor thereto) to unilaterally amend or modify terminate any Company Stock OptionPlan, or (I) make any representation or commitment to, or enter into any formal or informal understanding, with any Person with respect to compensation, benefits, or terms of employment to be provided by Parent, the Surviving Corporation or any of the Surviving Corporation’s subsidiaries at or subsequent to the Effective Time; (vi) make any change in its fiscal year, revalue any assets or make any change in its financial or tax accounting methods, principles or practicespractices affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or LawGAAP; (vii) except licenses of Company Intellectual Property to customers in the ordinary course of business, directly or indirectly sell, lease (as lessor)lease, license or otherwise dispose of or permit to become subject to any Lien Lien, other than a Permitted Lien, any properties or assets, tangible or intangible, except sales of inventory and excess or obsolete assets with a value, individually or in the aggregate, in excess ordinary and usual course of $100,000business; (viii) except with respect to borrowings and repayments in the ordinary and usual course of business under the Company’s revolving credit facility, (A) incur, assume or guarantee incur any indebtedness for borrowed moneymoney or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another personPerson, enter into any “keep well” or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, or except for short-term borrowings incurred in the ordinary and usual course of business, (B) make any loans, advances (other than advances to non-officer employees in the ordinary course of business) or capital contributions to, or investments in, any other personPerson, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (ix) engage in (A) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with any intent of accelerating to prior fiscal quarters (including the current fiscal quarter) sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in subsequent fiscal quarters, (B) any practice which would have the effect of accelerating to prior fiscal quarters (including the current fiscal quarter) collections of receivables that would otherwise be expected (based on past practice) to be made in subsequent fiscal quarters, (C) any practice which would have the effect of postponing to subsequent fiscal quarters payments by the Company or any Company Subsidiary that would otherwise be expected (based on past practice) to be made in prior fiscal quarters (including the current fiscal quarter) or (DC) repurchase or prepay any other promotional sales indebtedness or discount activitydebt securities of the Company or any Company Subsidiary or of any third person; (ix) make or agree to make new capital expenditure, except as set forth in each case in clauses (A) through (D) in a manner outside the ordinary course of businesscapital expenditure budget provided to Parent prior to the date hereof; (x) incur or agree to incur make any new capital expenditures that, in the aggregate, are in excess of $1,000,000 in any calendar quarter; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xiixi) (A) pay, discharge, settle or satisfy any claims, liabilities, liabilities or obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), in excess of $10,000 individually or $50,000 in the aggregate, other than the payment, discharge, settlement or satisfaction, satisfaction in the ordinary and usual course of business or and in accordance with their terms, terms of (1) any liabilities reflected or reserved against in, or contemplated by, on the most recent consolidated financial statements (or the notes thereto) of the Company balance sheet included in the Filed Company SEC Documents or incurred since the date of such financial statements and (2) any trade payables arising in the ordinary and usual course of business or business, (B) cancel any material indebtedness that is material, (individually or in the aggregate, to the Company and the Company Subsidiaries taken as a whole, ) or waive any claims or rights of substantial valuevalue or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party; (xii) modify, amend or terminate any Material Contract or Contract providing for payments or otherwise involving amounts in excess of $100,000 or, except in the ordinary and usual course of business, enter into any Material Contract; (xiii) adopt a plan fail to maintain all insurance policies as currently in effect or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization other than for the liquidation allow any of any Company Subsidiary into the Companysuch policies to lapse; (xiv) maketransfer, enter into license or renew, grant a security interest to any Person or entity or otherwise extend, amend, modifyallow to lapse or go abandoned, modify or waive encumber any material provisions of any Contract or commitment or relinquish or waive any material Contract rights or agree to the termination of any material Contract, except in the ordinary course of businessMaterial Intellectual Property Rights; (xv) institute, settle, or agree to settle terminate any action, claim or proceeding pending or threatened before any arbitrator, court or other Governmental Entity; (xvi) agree to any covenant of the Company or a Company Subsidiary not to compete or other covenant of the Company or a Company Subsidiary restricting the development, manufacture, marketing or distribution of the products or services employee of the Company or any Company Subsidiary or otherwise limiting the freedom of the Company or any Company Subsidiary to compete in any line of business or with any person or in any area or to ownSubsidiary, operate, sell, transfer, pledge or otherwise dispose of or encumber any material assets or that would so limit the freedom of Parent or any of its affiliates after the consummation of the Offer or the Merger; (xvii) make any change in personnel relating to key employees, operations or financewithout cause; or (xviiixvi) authorizeauthorize any of, or commit or agree to take any action referred to in Section 6.01(a)(i) through Section 6.01(a)(xvii). Without limiting the generality of Section 10.07 (Entire Agreement; No Third-Party Beneficiaries)of, the provisions of this Section 6.01(a) shall be limited by and subject to the provisions of Section 10.07foregoing actions.