Common use of Conduct of Business of Company Clause in Contracts

Conduct of Business of Company. Except as contemplated by this Agreement or as described in SECTION 4.1 of the Company Disclosure Schedule, during the period from the date hereof to the Effective Time, Company will, and will cause each of its subsidiaries to, conduct its operations in the ordinary course of business consistent with past practice, and, to the extent consistent therewith and with no less diligence and effort than would be applied in the absence of this Agreement, will seek to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Agreement or as described in SECTION 4.1 of the Company Disclosure Schedule, prior to the Effective Time, neither Company nor any of its subsidiaries will, without the prior written consent of Parent and Newco (which consent shall not be unreasonably withheld): (a) amend its Charter or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (except bank loans) or equity equivalents (including, without limitation, any stock options or stock appreciation rights), except for the issuance and sale of Shares pursuant to options previously granted or subsequently granted in the ordinary course and consistent with past practice under Company Plans or pursuant to previously granted warrants; (c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any of its securities or any securities of any of subsidiaries; (d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any of its subsidiaries (other than the Merger); (e) alter, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure of ownership of any subsidiary; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings under existing lines of credit in the ordinary course of business provided that notice is provided to Parent; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company incurred in the ordinary course of business provided that notice is provided to Parent; (iii) make any loans, advances or capital contributions to or investments in any other person (other than to subsidiaries of Company or customary loans or advances to employees in each case in the ordinary course of business consistent with past practice); (iv) pledge or otherwise encumber shares of capital stock of Company or its subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon (other than tax liens for Taxes not yet due); (g) except as set forth in SECTION 4.1 of the Company Disclosure Schedule or as may be required by law, enter into adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); PROVIDED, HOWEVER, that this paragraph shall not prevent Company or its subsidiaries from entering into employment agreements, severance agreements or other compensation arrangements with employees in the ordinary course of business and consistent with past practice; (h) except as set forth in SECTION 4.1 of the Company Disclosure Schedule, acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of $50,000 in the aggregate; (i) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it; (j) revalue in any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary course of business; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contract or agreement, other than in the ordinary course of business consistent with past practice, that would be material to Company and its subsidiaries, taken as a whole; (iii) authorize any new capital expenditure or expenditures that individually is in excess of $50,000 or in the aggregate are in excess of $400,000 PROVIDED that none of the foregoing shall limit any capital expenditure required pursuant to existing Leases or other existing contracts; (l) make any tax election or settle or compromise any income tax liability material to Company and its subsidiaries taken as a whole; (m) settle or compromise any pending or threatened suit, action or claim that (i) relates to the transactions contemplated hereby or (ii) the settlement or compromise of which could have a Material Adverse Effect on Company; or (n) take or agree in writing or otherwise to take any of the actions described in SECTIONS 4.1(a) through 4.1(m) or any action that would make any of the representations or warranties of Company contained in this Agreement materially untrue or incorrect.

Conduct of Business of Company. Except as contemplated by this Agreement expressly permitted during the period from the Signing Date until including the Closing Date the Company shall, and shall cause each of its respective corporations, partnerships, limited liability companies, joint ventures or other legal entities of which the Acquiror or the Company, as described in SECTION 4.1 the case may be (either alone or through or together with any other Subsidiary), owns, directly or indirectly, 50% or more of the Company Disclosure Schedulestock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation, partnership, limited liability company, joint venture or other legal entity, (“Subsidiaries”) to, in compliance with all legal rules and provisions under any applicable jurisdiction: 14.1 in all material respects, carry on their businesses in the ordinary course of business and to use reasonable efforts to preserve intact their current business organizations and goodwill; 14.2 use reasonable efforts to keep available the services of their current key officers and employees (“Führungskräfte”), to the extent commercially reasonable; 14.3 use reasonable efforts to preserve their relationships with customers, suppliers, distributors, consultants, and with others with which they have business relationships and/or business dealings, to the extent commercially reasonable. 14.4 to not, during the period from the date hereof of this Agreement to the Effective Time, Company will, and will cause each of its subsidiaries to, conduct its operations in the ordinary course of business consistent with past practice, and, to the extent consistent therewith and with no less diligence and effort than would be applied in the absence of this Agreement, will seek to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality Expiration of the foregoing, except as otherwise expressly provided in this Agreement or as described in SECTION 4.1 of the Company Disclosure Schedule, prior to the Effective Time, neither Company nor any of its subsidiaries will, without the prior written consent of Parent and Newco (which consent shall not be unreasonably withheld):Tender Offer: (a) amend its Charter or bylaws (or other similar governing instrument); (b) authorize for issuancepurchase, issue, sell, deliver or agree or commit to issue sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (except bank loans) or equity equivalents (including, without limitation, any stock options or stock appreciation rights), except for the issuance and sale of Shares pursuant to options previously granted or subsequently granted in the ordinary course and consistent with past practice under Company Plans or pursuant to previously granted warrants; (c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any of its shares or any of its other securities or any rights, warrants or options to acquire any such shares or other securities, other than as required under existing Stock Option Schemes of the Company; (b) issue, any shares or any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, other than the issuance of shares upon the exercise of currently outstanding stock options in accordance with their current Stock Options Schemes; (c) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any of subsidiariesother manner, any business or business organization; (d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any of its subsidiaries (other than the Merger); (e) alter, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure of ownership of any subsidiary; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings under existing lines of credit in the ordinary course of business provided that notice is provided to Parent; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the any obligations of any person; (e) other person except than in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company incurred in the ordinary course of business provided that notice is provided to Parent; (iii) make any loans, advances or capital contributions to to, or other investments in in, any other person person; (f) other than to subsidiaries of Company or customary loans or advances to employees in each case in the ordinary course of business consistent with past practice); (iv) pledge enter into or otherwise encumber shares amend any compensation agreement, benefit plan, employment agreement, consulting agreement, or bonus plan or hire additional personnel or engage additional consultants, provided, however, that any entering into or amending of capital stock of Company or its subsidiaries; or (v) mortgage or pledge any of its material assetsthese actions, tangible or intangible, or create or suffer to exist any material Lien thereupon (other than tax liens for Taxes not yet due); (g) except as set forth in SECTION 4.1 the extent that they apply to members of the Company Disclosure Schedule or as may be required Company’s management board (Vorstand), require the prior consent by lawOpen Text, enter into adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); PROVIDED, HOWEVER, that this paragraph shall not prevent Company or its subsidiaries from entering into employment agreements, severance agreements or other compensation arrangements with employees in the ordinary course of business and consistent with past practice; (h) except as set forth in SECTION 4.1 of the Company Disclosure Schedule, acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of $50,000 in the aggregate; (i) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it; (j) revalue in any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable other than even though otherwise in the ordinary course of business; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (iig) enter into any contract transaction or agreement, other than in the ordinary course of business consistent with past practice, that would be material to Company and its subsidiaries, taken as a whole; (iii) authorize perform any new capital expenditure or expenditures that individually is in excess of $50,000 or in the aggregate are in excess of $400,000 PROVIDED that none of the foregoing shall limit any capital expenditure required pursuant to existing Leases or other existing contracts; (l) make any tax election or settle or compromise any income tax liability material to Company and its subsidiaries taken as a whole; (m) settle or compromise any pending or threatened suit, action or claim that act which (i) relates to interferes or is inconsistent with the transactions successful completion of the transaction contemplated hereby by this Agreement or (ii) adversely affects the settlement or compromise of which could have a Material Adverse Effect on Company; or’s ability to perform its covenants and agreements under this Agreement. (nh) take permit or agree in writing or otherwise cause any of its respective Subsidiaries to take do any of the actions described in SECTIONS 4.1(a) through 4.1(m) foregoing or any action that would make commit to do any of the representations foregoing. 14.5 The foregoing provisions about the conduct of business shall be deemed not to violate any legal obligations of the Company or warranties its management, in particular Section 76 German Corporation Act (AktG) and Section 33 German Takeover Act (WpÜG) and be understood as an obligation vis à vis the Acquiror and Open Text to the extent allowed by German law. These provisions shall in particular secure the Acquiror and Open Text against material adverse changes in the business of the Company contained in this Agreement materially untrue or incorrectthat may be initiated by the management of the Company during the Tender Offer and have significant influence on the share price of the Company at a later date.

Conduct of Business of Company. Except as contemplated by this Agreement or as described in SECTION 4.1 of the Company Disclosure Schedule, during During the period from the date hereof of this Agreement to the Effective TimeTime of the Merger (except as otherwise specifically required by the terms of this Agreement), or the earlier termination of this Agreement, Company willshall, and will shall cause each of its subsidiaries Subsidiaries to, conduct its operations act and carry on their respective businesses in the ordinary course of business consistent with past practice, and, to the extent consistent therewith and with no less diligence and effort than would be applied in the absence of this Agreement, will seek to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, except as otherwise expressly provided in during the period from the date of this Agreement or as described in SECTION 4.1 of the Company Disclosure Schedule, prior to the Effective TimeTime of the Merger, neither or the earlier termination of this Agreement, Company nor shall not, and shall not permit any of its subsidiaries willSubsidiaries to, without the prior written consent of Parent and Newco (Buyer or MergerCo, which consent shall not be unreasonably withheld):: (a) amend declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its Charter or bylaws (or capital stock, other similar governing instrument)than dividends and distributions by a Subsidiary of Company to Company in accordance with applicable law; (b) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (c) purchase, redeem or otherwise acquire any shares of capital stock of Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities outstanding on the date of this Agreement, except for the cash-out of Company Stock Options as provided in Section 3.2 of this Agreement; (d) authorize for issuance, issue, deliver, sell, deliver pledge or agree or commit to issue sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (except bank loans) or equity equivalents (including, without limitation, any stock options or stock appreciation rights), except for the issuance and sale of Shares pursuant to options previously granted or subsequently granted in the ordinary course and consistent with past practice under Company Plans or pursuant to previously granted warrants; (c) split, combine or reclassify otherwise encumber any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of its the capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire of any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities or any other securities or equity equivalents (including without limitation stock appreciation rights) other than the issuance of any Company Common Stock upon the exercise of subsidiariesCompany Stock Options outstanding on the date of this Agreement and in accordance with their present terms (such issuances, together with the acquisitions of shares of Company Common Stock permitted under clause (c) above, being referred to herein as "Permitted Changes"); (de) adopt a plan amend its certificate or articles of complete or partial liquidationincorporation, dissolution, merger, consolidation, restructuring, recapitalization bylaws or other reorganization comparable charter or organizational documents; (f) subject to the provisions of Section 7.7 hereof, and except in the ordinary course of business, acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization which would be material to the Company and its subsidiaries, taken as a whole; (g) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person in an amount in excess of $1,000,000, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Company or any of its subsidiaries (Subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other than agreement to maintain any financial statement condition of another Person or enter into any arrangement having the Merger); (e) alter, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure of ownership economic effect of any subsidiary; (f) (i) incur or assume any long-term or short-term debt or issue any debt securitiesof the foregoing, except for borrowings under existing lines of current credit in the ordinary course of business provided that notice is provided to Parent; (ii) assumefacilities and for lease obligations, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company incurred in the ordinary course of business provided that notice is provided to Parent; (iii) make any loans, advances or capital contributions to or investments in any other person (other than to subsidiaries of Company or customary loans or advances to employees in each case incurred in the ordinary course of business consistent with past practice); (iv) pledge or otherwise encumber shares of capital stock of Company or its subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon (other than tax liens for Taxes not yet due); (g) except as set forth in SECTION 4.1 of the Company Disclosure Schedule or as may be required by law, enter into adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); PROVIDED, HOWEVER, that this paragraph shall not prevent Company or its subsidiaries from entering into employment agreements, severance agreements or other compensation arrangements with employees in the ordinary course of business and consistent with past practice; (h) except as set forth make any loans, advances or capital contributions to, or investments in, any other Person, other than to Company or any Subsidiary of Company, in SECTION 4.1 of the Company Disclosure Schedule, acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of an amount exceeding $50,000 in the aggregate100,000; (i) adopt resolutions providing for or authorizing a liquidation or a dissolution except as may be required as a result part of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it;Transaction Proposal; or (j) revalue in any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary course of business; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contract or agreement, other than in the ordinary course of business consistent with past practice, that would be material to Company and its subsidiaries, taken as a whole; (iii) authorize any new capital expenditure of, or expenditures that individually is in excess of $50,000 or in the aggregate are in excess of $400,000 PROVIDED that none of the foregoing shall limit any capital expenditure required pursuant to existing Leases or other existing contracts; (l) make any tax election or settle or compromise any income tax liability material to Company and its subsidiaries taken as a whole; (m) settle or compromise any pending or threatened suit, action or claim that (i) relates to the transactions contemplated hereby or (ii) the settlement or compromise of which could have a Material Adverse Effect on Company; or (n) take commit or agree in writing or otherwise to take any of of, the actions described in SECTIONS 4.1(a) through 4.1(m) or any action that would make any of the representations or warranties of Company contained in this Agreement materially untrue or incorrectforegoing actions.

Conduct of Business of Company. Except as contemplated by this Agreement expressly permitted during the period from the Signing Date until including the Closing Date the Company shall, and shall cause each of its respective corporations, partnerships, limited liability companies, joint ventures or other legal entities of which the Acquiror or the Company, as described in SECTION 4.1 the case may be (either alone or through or together with any other Subsidiary), owns, directly or indirectly, 50% or more of the Company Disclosure Schedulestock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation, partnership, limited liability company, joint venture or other legal entity, (“Subsidiaries”) to, in compliance with all legal rules and provisions under any applicable jurisdiction: 14.1 in all material respects, carry on their businesses in the ordinary course of business and to use reasonable efforts to preserve intact their current business organizations and goodwill; 14.2 use reasonable efforts to keep available the services of their current key officers and employees (“Führungskräfte”), to the extent commercially reasonable; 14.3 use reasonable efforts to preserve their relationships with customers, suppliers, distributors, consultants, and with others with which they have business relationships and/or business dealings, to the extent commercially reasonable. 14.4 to not, during the period from the date hereof of this Agreement to the Effective Time, Company will, and will cause each of its subsidiaries to, conduct its operations in the ordinary course of business consistent with past practice, and, to the extent consistent therewith and with no less diligence and effort than would be applied in the absence of this Agreement, will seek to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality Expiration of the foregoing, except as otherwise expressly provided in this Agreement or as described in SECTION 4.1 of the Company Disclosure Schedule, prior to the Effective Time, neither Company nor any of its subsidiaries will, without the prior written consent of Parent and Newco (which consent shall not be unreasonably withheld):Tender Offer: (a) amend its Charter or bylaws (or other similar governing instrument); (b) authorize for issuancepurchase, issue, sell, deliver or agree or commit to issue sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (except bank loans) or equity equivalents (including, without limitation, any stock options or stock appreciation rights), except for the issuance and sale of Shares pursuant to options previously granted or subsequently granted in the ordinary course and consistent with past practice under Company Plans or pursuant to previously granted warrants; (c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any of its shares or any of its other securities or any rights, warrants or options to acquire any such shares or other securities, other than as required under existing Stock Option Schemes of the Company; (b) issue, any shares or any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, other than the issuance of shares upon the exercise of currently outstanding stock options in accordance with their current Stock Options Schemes; (c) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any of subsidiariesother manner, any business or business organization; (d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any of its subsidiaries (other than the Merger); (e) alter, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure of ownership of any subsidiary; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings under existing lines of credit in the ordinary course of business provided that notice is provided to Parent; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the any obligations of any person; (e) other person except than in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company incurred in the ordinary course of business provided that notice is provided to Parent; (iii) make any loans, advances or capital contributions to to, or other investments in in, any other person person; (f) other than to subsidiaries of Company or customary loans or advances to employees in each case in the ordinary course of business consistent with past practice); (iv) pledge enter into or otherwise encumber shares amend any compensation agreement, benefit plan, employment agreement, consulting agreement, or bonus plan or hire additional personnel or engage additional consultants, provided, however, that any entering into or amending of capital stock of Company or its subsidiaries; or (v) mortgage or pledge any of its material assetsthese actions, tangible or intangible, or create or suffer to exist any material Lien thereupon (other than tax liens for Taxes not yet due); (g) except as set forth in SECTION 4.1 the extent that they apply to members of the Company Disclosure Schedule or as may be required Company`s management board (Vorstand), require the prior consent by lawOpen Text, enter into adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); PROVIDED, HOWEVER, that this paragraph shall not prevent Company or its subsidiaries from entering into employment agreements, severance agreements or other compensation arrangements with employees in the ordinary course of business and consistent with past practice; (h) except as set forth in SECTION 4.1 of the Company Disclosure Schedule, acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of $50,000 in the aggregate; (i) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it; (j) revalue in any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable other than even though otherwise in the ordinary course of business; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (iig) enter into any contract transaction or agreement, other than in the ordinary course of business consistent with past practice, that would be material to Company and its subsidiaries, taken as a whole; (iii) authorize perform any new capital expenditure or expenditures that individually is in excess of $50,000 or in the aggregate are in excess of $400,000 PROVIDED that none of the foregoing shall limit any capital expenditure required pursuant to existing Leases or other existing contracts; (l) make any tax election or settle or compromise any income tax liability material to Company and its subsidiaries taken as a whole; (m) settle or compromise any pending or threatened suit, action or claim that act which (i) relates to interferes or is inconsistent with the transactions successful completion of the transaction contemplated hereby by this Agreement or (ii) adversely affects the settlement or compromise of which could have a Material Adverse Effect on Company; or’s ability to perform its covenants and agreements under this Agreement. (nh) take permit or agree in writing or otherwise cause any of its respective Subsidiaries to take do any of the actions described in SECTIONS 4.1(a) through 4.1(m) foregoing or any action that would make commit to do any of the representations foregoing. 14.5 The foregoing provisions about the conduct of business shall be deemed not to violate any legal obligations of the Company or warranties its management, in particular Section 76 German Corporation Act (AktG) and Section 33 German Takeover Act (WpÜG) and be understood as an obligation vis à vis the Acquiror and Open Text to the extent allowed by German law. These provisions shall in particular secure the Acquiror and Open Text against material adverse changes in the business of the Company contained in this Agreement materially untrue or incorrectthat may be initiated by the management of the Company during the Tender Offer and have significant influence on the share price of the Company at a later date.

Conduct of Business of Company. Except as contemplated by this Agreement or as described in SECTION 4.1 5.1 of the Company Disclosure Schedule, during the period from the date hereof to the earlier to occur of the termination of this Agreement or the Effective Time, Company will, and will cause each of its subsidiaries to, conduct its operations in the ordinary course of business consistent with past practicepractice and in such a manner as to cause its representations and warranties contained in the last sentence of SECTION 3.4 to be true and correct at and as of the date that Purchaser accepts for payment and pays for Shares in the Offer, and, to the extent consistent therewith and with no less diligence and effort than would be applied in the absence of this Agreement, Company will seek use reasonable commercial efforts to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Effective Timeit. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Agreement or as described in SECTION 4.1 5.1 of the Company Disclosure Schedule, prior to the Effective Time, neither Company nor any of its subsidiaries will, without the prior written consent of Parent and Newco (which consent shall not be unreasonably withheld):Purchaser: (a) amend its Charter charter or bylaws (or other similar governing instrument); (b) amend the Company Rights Agreement in any manner that would permit any person to acquire more than 20% (or in the case of Citigroup Inc. and its affiliates only, 28%) of the Shares, or redeem the Company Rights; (c) authorize for issuance, issue, sell, deliver or agree or commit to issue sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (except bank loans) or equity equivalents (including, without limitation, any stock options or stock appreciation rights), except for the issuance and sale of Shares pursuant to options Company Stock Options previously granted or subsequently granted in under the ordinary course and consistent with past practice under Company Plans or and pursuant to previously granted warrantsthe employee stock purchase plan; (cd) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock stock, or otherwise make any payments to stockholders shareholders in their capacity as such, or redeem or otherwise acquire any of its securities or any securities of any of subsidiaries; (de) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any of its subsidiaries (other than the Merger); (ef) alter, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure of ownership of any subsidiary; (fg) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings under existing lines of credit in the ordinary course of business provided that notice is provided to Parentbusiness; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company incurred in the ordinary course of business provided that notice is provided to Parentbusiness; (iii) make any loans, advances or capital contributions to or investments in any other person (other than to subsidiaries of Company or customary loans or advances to employees in each case in the ordinary course of business consistent with past practice)person; (iv) pledge or otherwise encumber shares of capital stock of Company or its subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon (other than tax liens Tax Liens for Taxes not yet due); (gh) except as set forth in SECTION 4.1 of the Company Disclosure Schedule or as may be required by law, enter into adopt or into, adopt, amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner manner, or increase in any manner the compensation or fringe benefits of any director, officer or employee (including, without limitation, through the voluntary acceleration of vesting of Company Stock Options), or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); PROVIDED, HOWEVER, that this paragraph shall not prevent Company or its subsidiaries from entering into employment agreements, agreements or severance agreements or other compensation arrangements with new employees in the ordinary course of business and consistent with past practicepractice or complying with existing agreements; (hi) except as set forth in SECTION 4.1 of the Company Disclosure Schedule, acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of Fifty Thousand Dollars ($50,000 50,000) in the aggregate; (ij) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it; (jk) revalue in any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary course of business; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into into, amend or terminate any contract or agreement, other than in the ordinary course of business consistent with past practice, that would be material to Company and its subsidiaries, taken as a whole; (iii) authorize any new capital expenditure or expenditures that individually is in excess of Twenty Five Thousand Dollars ($50,000 25,000) or in the aggregate are in excess of One Hundred Thousand Dollars ($400,000 100,000); PROVIDED that none of the foregoing shall limit any capital expenditure required pursuant to existing Leases customer contracts or other existing contractsthe payment of fees to service providers in connection with this Agreement and the transactions contemplated thereby; (lm) make any tax election or settle or compromise any income tax liability material to Company and its subsidiaries taken as a whole; (mn) settle or compromise any pending or threatened suit, action or claim that (i) relates to the transactions contemplated hereby or (ii) the settlement or compromise of which could have a Material Adverse Effect on Company; (o) pay, or (subject to SECTION 5.5) award any increases in, any salary, wages, vacation pay, sick pay, bonuses or other compensation except in the ordinary course of business consistent with past practice; (p) made any material change in the conduct of its business or operations, or take or omit to take any actions not in the ordinary course of business consistent with past practices; or (nq) take or agree in writing or otherwise to take any of the actions described in SECTIONS 4.1(a5.1 (a) through 4.1(mTHROUGH 5.1(p) or any action that would make any of the representations or warranties of Company contained in this Agreement materially untrue or incorrect.

Conduct of Business of Company. Except as expressly contemplated by this Agreement or as described in SECTION 4.1 of the Company Disclosure Scheduleon Schedule 5.5, during the period from the date hereof to the Effective Time, Company will, and will cause each of its subsidiaries to, conduct its operations in the ordinary course of business consistent with past practice, practice and, to the extent consistent therewith and therewith, with no less diligence and effort than would be applied in the absence of this Agreement, will seek to preserve intact its current business organizations, keep available the service of its current officers and employees Employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Agreement or as described in SECTION 4.1 of on Schedule 5.5, during the Company Disclosure Schedule, prior period from the date hereof to the Effective Time, neither Company nor any of its subsidiaries willwill not, without the prior written consent of Parent, which shall be evidenced by a signed waiver or e-mail in the form of Exhibit K from Xxxxx Xxxxxx, Senior Director Business Development of Parent and Newco (which consent shall not be unreasonably withheldthe “Parent Representative”): (a) amend its Charter Certificate of Incorporation or bylaws (or other similar governing instrument)bylaws; (b) enter into any contract that would be a Material Agreement (as defined in Section 2.12), or amend or, otherwise modify or waive any of the material terms of any of its Material Agreements; (c) authorize for issuance, issue, sell, deliver or agree or commit to issue issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock shares of any class or any other securities (except bank loans) or equity equivalents (including, without limitation, any stock options or stock appreciation rights), except for (i) the issuance and sale of Shares shares pursuant to options previously granted or subsequently granted exercise of currently outstanding stock options, Milestone Options and the Additional Options and (ii) the granting of the Milestone Options and the Additional Options in accordance with Section 6.7 of the ordinary course and consistent with past practice under Company Plans or pursuant to previously granted warrants; (c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any of its securities or any securities of any of subsidiariesOption Agreement; (d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any of its subsidiaries (other than the Merger); (e) alter, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure of ownership of any subsidiary; (f) (i) incur or assume any long-term or short-term debt (other than the obligation to reimburse employees for any employee advance of travel, meals or other employee expense in the ordinary course of business) or issue any debt securities, except for borrowings under existing lines of credit in the ordinary course of business provided that notice is provided to Parent; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company incurred in the ordinary course of business provided that notice is provided to Parent; person, (iii) make any loans, advances or capital contributions to or investments in any other person (other than to subsidiaries of Company or customary loans or advances to employees in each case in the ordinary course of business consistent with past practice); investments, (iv) pledge or otherwise encumber shares of capital stock of any Company or its subsidiaries; or Capital Stock, (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material Lien lien thereupon (other than tax liens for Taxes not yet due); Permitted Liens, as defined in the Security Agreement) or (gvi) except as set forth in SECTION 4.1 of accelerate the Company Disclosure Schedule or as may be required by law, enter into adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare repayment date of any director, officer debt or employee in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); PROVIDED, HOWEVER, that this paragraph shall not prevent Company or its subsidiaries from entering into employment agreements, severance agreements or other compensation arrangements with employees in the ordinary course of business and consistent with past practicelease; (h) except as set forth in SECTION 4.1 of the Company Disclosure Schedule, acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of $50,000 in the aggregate; (i) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it; (j) revalue in any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary course of business; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contract or agreement, other than in the ordinary course of business consistent with past practice, that would be material to Company and its subsidiaries, taken as a whole; (iii) authorize any new capital expenditure or expenditures that individually is in excess of $50,000 or in the aggregate are in excess of $400,000 PROVIDED that none of the foregoing shall limit any capital expenditure required pursuant to existing Leases or other existing contracts; (l) make any tax election or settle or compromise any income tax liability material to Company and its subsidiaries taken as a whole; (m) settle or compromise any pending or threatened suit, action or claim that (i) relates to the transactions contemplated hereby or (ii) the settlement or compromise of which could have a Material Adverse Effect on Company; or (n) take or agree in writing or otherwise to take any of the actions described in SECTIONS 4.1(a) through 4.1(m) or any action that would make any of the representations or warranties of Company contained in this Agreement materially untrue or incorrect.

Conduct of Business of Company. Except as contemplated by this Agreement expressly provided for herein or as described in SECTION 4.1 of the Company Disclosure ScheduleFiber Cement Agreement, during the period from the date hereof of this Agreement to the Effective Time, Company willshall, and will shall cause each of its subsidiaries Subsidiaries to, conduct act and carry on its operations business only in the ordinary course of business consistent with past practice and, to the extent consistent therewith, use reasonable efforts to preserve intact its current business organizations, keep available the services of its current key officers and employees and preserve the goodwill of those engaged in material business relationships with Company. To that end, without limiting the generality of the foregoing, except as expressly provided for in this Agreement or the Fiber Cement Agreement, Company shall not, and shall not permit any of its Subsidiaries to, without the prior consent of Parent: (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its outstanding capital stock (other than, with respect to a Subsidiary of Company, to its corporate parent), (B) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares, except, in the case of this clause (C), for the acquisition of Shares from holders of Options in full or partial payment of the exercise price payable by such holder upon exercise of Options; (ii) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, other than upon the exercise of Options outstanding on the date of this Agreement; (iii) amend its certificate of incorporation, bylaws or other comparable charter or organizational documents, except for any amendment required in connection with the performance by Company of its obligations under this Agreement, including but not limited to its obligations under Section 1.4; (iv) directly or indirectly acquire, make any investment in, or make any capital contributions to, any person other than in the ordinary course of business consistent with past practice; (v) directly or indirectly sell, pledge or otherwise dispose of or encumber any of its properties or assets that are material to its business, except for sales, pledges or other dispositions or encumbrances in the ordinary course of business consistent with past practice; (vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, other than indebtedness owing to or guarantees of indebtedness owing to Company or any direct or indirect wholly owned Subsidiary of Company or (B) make any loans or advances to any other person, other than to Company or to any direct or indirect wholly owned Subsidiary of Company and other than routine advances to employees consistent with past practice, except, in the case of clause (A), for borrowings under existing credit facilities described in the Filed SEC Documents in the ordinary course of business consistent with past practice; (vii) enter into any compromise or settlement of, or take any material action with respect to, any litigation, action, suit, claim, proceeding or investigation other than the prosecution, defense and settlement of routine litigation, actions, suits, claims, proceedings or investigations in the ordinary course of business; (viii) grant or agree to grant to any officer, employee or consultant any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Company Plans, except as may be required under existing agreements or by law or pursuant to the normal severance policies or practices of Company or its Subsidiaries as in effect on the date of this Agreement, or increases in salary or wages payable or to become payable in the ordinary course of business consistent with past practice; (ix) accelerate the payment, right to payment or vesting of any bonus, severance, profit sharing, retirement, deferred compensation, stock option, insurance or other compensation or benefits; (x) enter into or amend any employment, consulting, severance or similar agreement with any individual other than in the ordinary course of business consistent with past practice, and, except with respect to the extent consistent therewith and with no less diligence and effort than would be applied in the absence new hires of this Agreement, will seek to preserve intact its current business organizations, keep available the service of its current officers and non-officer employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Agreement or as described in SECTION 4.1 of the Company Disclosure Schedule, prior to the Effective Time, neither Company nor any of its subsidiaries will, without the prior written consent of Parent and Newco (which consent shall not be unreasonably withheld): (a) amend its Charter or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (except bank loans) or equity equivalents (including, without limitation, any stock options or stock appreciation rights), except for the issuance and sale of Shares pursuant to options previously granted or subsequently granted in the ordinary course and of business consistent with past practice under Company Plans or pursuant to previously granted warrantspractice; (c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any of its securities or any securities of any of subsidiaries; (dxi) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of Company or any of its subsidiaries agreement relating to an Acquisition Proposal (other than the Mergeras defined in Section 6.5(d)); (e) alter, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure of ownership of any subsidiary; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings under existing lines of credit in the ordinary course of business provided that notice is provided to Parent; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company incurred in the ordinary course of business provided that notice is provided to Parent; (iii) make any loans, advances or capital contributions to or investments in any other person (other than to subsidiaries of Company or customary loans or advances to employees in each case in the ordinary course of business consistent with past practice); (iv) pledge or otherwise encumber shares of capital stock of Company or its subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon (other than tax liens for Taxes not yet due); (g) except as set forth in SECTION 4.1 of the Company Disclosure Schedule or as may be required by law, enter into adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); PROVIDED, HOWEVER, that this paragraph shall not prevent Company or its subsidiaries from entering into employment agreements, severance agreements or other compensation arrangements with employees in the ordinary course of business and consistent with past practice; (h) except as set forth in SECTION 4.1 of the Company Disclosure Schedule, acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of $50,000 in the aggregate; (i) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it; (j) revalue in any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary course of business; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contract or agreement, other than in the ordinary course of business consistent with past practice, that would be material to Company and its subsidiaries, taken as a whole; (iii) authorize any new capital expenditure or expenditures that individually is in excess of $50,000 or in the aggregate are in excess of $400,000 PROVIDED that none of the foregoing shall limit any capital expenditure required pursuant to existing Leases or other existing contracts; (lxii) make any tax election or settle or compromise any income tax liability material to of Company and or of any of its subsidiaries taken as a wholeSubsidiaries involving on an individual basis more than $100,000; (mxiii) settle make any change in any method of accounting or compromise accounting practice or policy, except as required by any pending changes in generally accepted accounting principles; (xiv) enter into any agreement, understanding or threatened suitcommitment that restrains, action limits or claim that impedes Company's ability to compete with or conduct any business or line of business; (ixv) relates to plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the transactions contemplated hereby termination of employment of employees of Company or (ii) the settlement or compromise of which could have a Material Adverse Effect on Companyits Subsidiaries; or (nxvi) take authorize any of, or commit or agree in writing or otherwise to take any of, the foregoing actions in respect of which it is restricted by the actions described in SECTIONS 4.1(a) through 4.1(m) or any action that would make any provisions of the representations or warranties of Company contained in this Agreement materially untrue or incorrectSection 5.1.

Conduct of Business of Company. Except as expressly contemplated by this Agreement or as described in SECTION 4.1 of the Company Disclosure ScheduleAgreement, during the period from the date hereof of this Agreement to the Effective Time, Company will, and will cause each of its subsidiaries to, conduct its their operations in the according to their ordinary course of business consistent with past practice, and, to the extent consistent therewith and with no less diligence and effort than would be applied in the absence of this Agreement, will seek use all reasonable best efforts to preserve intact its current their business organizationsorganization, to keep available the service services of its current their officers and employees employees, to maintain all permits, licenses and preserve its franchises from governmental entities required to conduct their businesses as now being conducted and to maintain satisfactory relationships with customersproducers, suppliers brokers, insureds, suppliers, distributors, customers and others having business dealings relationships with it and will take no action which would materially adversely affect the ability of the Parties to consummate the end transactions contemplated by this Agreement (it being understood that goodwill Company will discuss with Parent the implementation of the joint venture with Capital Re Corporation and ongoing businesses shall be unimpaired at the Effective Timewriting of any insurance thereby or thereunder). Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement or as described in SECTION 4.1 of the Company Disclosure ScheduleAgreement, prior to the Effective Time, neither Company nor will not, and will not permit any of its subsidiaries willto, without the prior written consent of Parent and Newco (which consent shall not be unreasonably withheld):Parent, directly or indirectly: (a) amend the Organizational Documents of Company or any of its Charter or bylaws (or other similar governing instrument)subsidiaries; (b) authorize for issuance, issue, sell, deliver deliver, grant any options for, or otherwise agree or commit to issue issue, sell or deliver (whether through any securities of Company or any of its subsidiaries, except pursuant to and in accordance with the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock terms of any class or any other securities (except bank loans) or equity equivalents (including, without limitation, any stock options or stock appreciation rights), except for Company Options outstanding on the issuance and sale of Shares pursuant to options previously granted or subsequently granted in the ordinary course and consistent with past practice under Company Plans or pursuant to previously granted warrantsdate hereof; (c) split, combine or reclassify any shares of Company or any of its capital stocksubsidiaries, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stockany such shares or purchase, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any such shares, except that the Company may pay the dividend of its securities or any securities $0.62 per Share declared on April 25, 1997 payable on May 27, 1997 to shareholders of any of subsidiariesrecord on May 14, 1997 (the "Second Quarter Dividend"); (d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any of its subsidiaries (other than the Merger); (e) alter, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure of ownership of any subsidiary; (f) (i) incur create, incur, assume, maintain or assume permit to exist any long-term debt or any short-term debt or issue any debt securitiesfor borrowed money, except for borrowings under pursuant to Company's existing lines of credit agreements in the ordinary course of the property catastrophe business provided that notice is provided to Parent; the extent required to pay properly documented claims, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of its reinsurance business, consistent with past practices (except customary letters of credit issued in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company incurred in the ordinary course of business provided that notice is provided to Parent; practices), or (iii) make any loans, advances or capital contributions to to, or investments in, any person; (i) increase in any manner the compensation (including bonuses) of any director, officer or other person (other than to subsidiaries employee of Company or customary loans any of its subsidiaries; (ii) pay or advances agree to employees in each case in the ordinary course of business consistent pay any pension, retirement allowance or other employee benefit not required, or enter into or agree to enter into any agreement or arrangement with any such director, officer or employee, whether past practice)or present relating to any such pension, retirement allowance or other employee benefit; (iii) grant any severance or termination pay to, or enter into any employment or severance agreement with, any such director, officer or other employee; or (iv) pledge or otherwise encumber shares of capital stock of Company or its subsidiaries; or (v) mortgage or pledge become obligated under any of its material assetsnew pension plan, tangible or intangiblewelfare plan, multi-employer plan, employee benefit plan, benefit arrangement, or create similar plan or suffer to exist any material Lien thereupon (other than tax liens for Taxes arrangement, which was not yet due); (g) except as set forth in SECTION 4.1 of existence on the Company Disclosure Schedule or as may be required by lawdate hereof, enter into adopt or amend or terminate including any bonus, profit sharingincentive, deferred compensation, severance, terminationstock purchase, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employmentgroup insurance, severance pay, retirement or other employee benefit agreement, trust, plan, fund agreement or other arrangement arrangement, or employment or consulting agreement with or for the benefit or welfare of any directorperson, officer or employee amend any of such plans or any of such agreements in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of existence on the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); PROVIDED, HOWEVER, that this paragraph shall not prevent Company or its subsidiaries from entering into employment agreements, severance agreements or other compensation arrangements with employees in the ordinary course of business and consistent with past practicehereof; (hf) except as set forth required by this Agreement, authorize, recommend, propose or announce an intention to authorize, recommend or propose, or enter into, any agreement in SECTION 4.1 principle or any agreement with respect to any plan of the Company Disclosure Scheduleliquidation or dissolution, acquireany acquisition of a material amount of assets or securities, sellany sale, lease transfer, lease, license, pledge, mortgage, or dispose other disposition or encumbrance of any assets in or securities or any single transaction or series of related transactions having a fair market value in excess of $50,000 change in the aggregate; (i) except as may be required as a result capitalization of a change in law Company or in generally accepted accounting principles, change any of the accounting principles or practices used by it; (j) revalue in any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable subsidiaries (other than upon exercise of Company Options outstanding on the date hereof), or, except for reinsurance agreements entered into in the ordinary course of business; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contract or agreement, other than in the ordinary course of business consistent with past practice, that would be material to Company and its subsidiaries, taken as a whole; (iii) authorize any new capital expenditure or expenditures that individually is in excess of $50,000 or in the aggregate are in excess of $400,000 PROVIDED that none of the foregoing shall limit any capital expenditure required pursuant to existing Leases or other existing contracts; (l) make any tax election or settle or compromise any income tax liability material to Company and its subsidiaries taken as a whole; (m) settle or compromise any pending or threatened suit, action or claim that (i) relates to the transactions contemplated hereby any other material agreements, commitments or (ii) the settlement or compromise of which could have a Material Adverse Effect on Company; or (n) take or agree in writing or otherwise to take any of the actions described in SECTIONS 4.1(a) through 4.1(m) or any action that would make any of the representations or warranties of Company contained in this Agreement materially untrue or incorrect.contracts,

Conduct of Business of Company. Except as contemplated by this Agreement or as described in SECTION 4.1 of the Company Disclosure Schedule, during During the period from the date hereof of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time of the Merger, Company shall carry on its business in the usual, regular and ordinary course in substantially the same manner as conducted prior to the Effective Timedate of this Agreement and, Company willto the extent consistent with such business, use reasonable efforts to preserve intact its present business organizations, keep available the services of its present service providers, and will cause each preserve its relationships with customers, suppliers, distributors, licensors, licensees and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Time of the Merger. Company shall promptly notify Parent of any event or occurrence not in the ordinary course of business of Company and any event which could have a material adverse effect on the business condition of Company. Except as expressly contemplated by this Agreement, Company, without the prior written consent of Parent or Merger Sub (which consent shall not be unreasonably withheld), shall not: (a) Accelerate, amend or change the period of exercisability of options, warrants, stock or purchase rights or authorize cash payments in exchange therefor; (b) Enter into any commitment or transaction not in the ordinary course of business to be performed over a period longer than six (6) months in duration, or, except as in accordance with its subsidiaries toexisting capital budget previously disclosed to Parent, conduct its operations to purchase fixed assets with an aggregate purchase price exceeding $20,000; (c) Grant any severance or termination pay to any service provider except as required by Parent pursuant to this Agreement; (d) Transfer to any person or entity any rights to Company intellectual property rights, except licenses of intellectual property rights in connection with the sale of Company products in the ordinary course of business consistent with past practice, and, to the extent consistent therewith and with no less diligence and effort than would be applied in the absence of this Agreement, will seek to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Agreement or as described in SECTION 4.1 of the Company Disclosure Schedule, prior to the Effective Time, neither Company nor any of its subsidiaries will, without the prior written consent of Parent and Newco (which consent shall not be unreasonably withheld):; (ae) Enter into or amend its Charter or bylaws (any agreements pursuant to which any other party is granted marketing or other similar governing instrument)rights of any type or scope with respect to any products of Company; (bf) authorize for issuance, issue, sell, deliver or agree or commit to issue sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (except bank loans) or equity equivalents (including, without limitation, any stock options or stock appreciation rights), except for the issuance and sale of Shares pursuant to options previously granted or subsequently granted Except in the ordinary course and consistent of business with past practice under Company Plans prior notice to Parent, violate, amend or pursuant to previously granted warrantsotherwise modify the terms of any material contract; (cg) splitExcept with prior consultation with Parent, combine or reclassify any shares commence a lawsuit other than for the routine collection of its capital stock, declare, set aside bills; (h) Declare or pay any dividend dividends on or make any other distribution distributions (whether in cash, stock or property or any combination thereofproperty) in respect of its capital any Company common stock, make or split, combine or reclassify any of its common stock or issue or authorize the issuance of any other actual, constructive or deemed distribution securities in respect of, in lieu of its capital stock or in substitution for shares of Company common stock, or repurchase or otherwise make acquire, directly or indirectly, any payments to stockholders in their capacity as suchshares of Company common stock; (i) Issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or redeem authorization of, the purchase of any shares of Company Capital Stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than the issuance of shares of Company common stock upon the exercise of Company Options; (j) Cause or permit any amendments to Company's Certificate of Incorporation or Bylaws; (k) Acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business condition of Company; (l) Sell, lease, license or otherwise dispose of any of its securities properties or any securities of any of subsidiaries; (d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any of its subsidiaries (other than the Merger); (e) alter, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure of ownership of any subsidiary; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, assets except for borrowings under existing lines of credit in the ordinary course of business provided that notice is provided business; (m) Incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or guarantee any debt securities of others. (n) Adopt or amend any plan, or enter into any employment contract, pay any special bonus or special remuneration to Parent; (ii) assumeany service provider, guaranteeor increase the salaries or wage rates of its employees other than pursuant to scheduled employee reviews under Company's normal employee review cycle or pursuant to Company's existing bonus plans, endorse as the case may be, or in connection with the hiring of employees other than officers in the ordinary course of business, in all cases consistent with past practice, or otherwise increase or modify the compensation or benefits payable or to become liable payable by Company to any of its service providers, except for changes pursuant to employment agreements in effect as of the date hereof or responsible changes in position; (whether directlyo) Revalue any of its assets, contingently including, without limitation, writing down the value of inventory or accounts receivable; (p) Except as set forth on Schedule 4.4, pay, discharge or satisfy in an amount in excess of $10,000 in any one case any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) for ), other than the obligations of any other person except payment, discharge or satisfaction in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company liabilities reflected or reserved against in Company's Financial Statements or incurred subsequent to January 1, 2000 in the ordinary course of business provided that notice is provided to Parent; (iii) make any loans, advances or capital contributions to or investments in any other person (other than to subsidiaries of Company or customary loans or advances to employees in each case in the ordinary course of business consistent with past practice); (iv) pledge or otherwise encumber shares of capital stock of Company or its subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon (other than tax liens for Taxes not yet due)business; (gq) except as set forth in SECTION 4.1 of the Company Disclosure Schedule or as may be required by law, enter into adopt or amend or terminate Make any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or material Tax election other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); PROVIDED, HOWEVER, that this paragraph shall not prevent Company or its subsidiaries from entering into employment agreements, severance agreements or other compensation arrangements with employees than in the ordinary course of business and consistent with past practice; (h) except as set forth in SECTION 4.1 of the Company Disclosure Schedule, acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of $50,000 in the aggregate; (i) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it; (j) revalue in material Tax election, adopt any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary course of business; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contract or agreement, Tax accounting method other than in the ordinary course of business and consistent with past practice, that would be change any material Tax accounting method, file any material Tax return (other than any estimated tax returns, payroll tax returns or sales tax returns) or any amendment to Company and its subsidiariesa material Tax return, taken as a whole; (iii) authorize enter into any new capital expenditure closing agreement, settle any Tax claim or expenditures that individually is in excess of $50,000 assessment or in the aggregate are in excess of $400,000 PROVIDED that none of the foregoing shall limit consent to any capital expenditure required pursuant to existing Leases Tax claim or other existing contractsassessment; (lr) make Engage in any tax election activities or settle or compromise any income tax liability material to Company and transactions that are outside the ordinary course of its subsidiaries taken as a wholebusiness consistent with past practice; (ms) settle Fail to pay or compromise otherwise satisfy its material monetary obligations as they become due or consistent with past practice, except such as are being contested in good faith; (t) Waive or commit to waive any pending rights of substantial value; (u) Cancel, amend or, other than in the ordinary course upon expiration of a policy term, renew any material insurance policy; (v) Alter, or threatened suitenter into any commitment to materially alter, action its interest in any corporation, association, joint venture, partnership or claim that (i) relates to business entity in which Company directly or indirectly holds any interest on the transactions contemplated hereby or (ii) the settlement or compromise of which could have a Material Adverse Effect on Companydate hereof; or (nw) take Take, or agree (in writing or otherwise otherwise) to take take, any of the actions described in SECTIONS 4.1(a) through 4.1(m) this Section 4.4 or any action that which would make any of the representations or warranties or covenants of Company Company, contained in this Agreement materially untrue or incorrect.

Conduct of Business of Company. Except Company covenants and agrees that from the date hereof and continuing until the Effective Time, except as contemplated by this Agreement or as described set forth in SECTION Section 4.1 of the Company Disclosure ScheduleSchedules or as Parent shall otherwise consent to in writing, during the period from business of Company shall be conducted only in, and Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with past practice; to the extent consistent therewith, Company and its Subsidiaries shall use their reasonable best efforts to preserve its business organization intact, to keep available the services of the current officers and employees and consultants of Company and its Subsidiaries, maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees, business associates and other persons with which Company or any of its Subsidiaries has significant business relations, maintain and keep its material properties and assets in good repair and condition, subject to ordinary wear and tear, and maintain in effect all material governmental permits pursuant to which it or any of its Subsidiaries currently operates. By way of amplification and not limitation, except as expressly contemplated by this Agreement and Section 4.1 of the Company Disclosure Schedules, Company shall not and shall cause its Subsidiaries not to, between the date hereof to of this Agreement and the Effective Time, Company willdirectly or indirectly, and will cause each do, or propose to do, any of the following without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned): (a) (i) amend or otherwise change its certificate of incorporation, its by-laws or the comparable governing instruments of any of its subsidiaries toSubsidiaries; (ii) subject to Section 5.16 of this Agreement, conduct amend the Rights Agreement, redeem the Rights, or exempt any Acquiring Person (as defined in the Rights Agreement); (iii) split, combine or reclassify its operations outstanding shares of capital stock; (iv) declare, set aside or pay any dividend payable in cash, cash equivalents, marketable securities, stock or property in respect of any capital stock (other than dividends from its direct or indirect wholly-owned Subsidiaries to it or a wholly-owned Subsidiary in the ordinary course of business consistent with past practice); or (v) repurchase, and, to the extent consistent therewith and with no less diligence and effort than would be applied in the absence of this Agreement, will seek to preserve intact its current business organizations, keep available the service redeem or otherwise acquire directly or indirectly any shares of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Agreement or as described in SECTION 4.1 of the Company Disclosure Schedule, prior to the Effective Time, neither Company nor any of its subsidiaries will, without the prior written consent of Parent and Newco (which consent shall not be unreasonably withheld): (a) amend its Charter or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any capital stock of any class or any other securities (except bank loans) convertible into or equity equivalents (including, without limitation, any stock options exchangeable or stock appreciation rights), except exercisable for the issuance and sale of Shares pursuant to options previously granted or subsequently granted in the ordinary course and consistent with past practice under Company Plans or pursuant to previously granted warrants; (c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay permit any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stockSubsidiaries to purchase or otherwise acquire, make any other actual, constructive or deemed distribution in respect shares of its capital stock or otherwise make any payments to stockholders in their capacity securities convertible into or exchangeable or exercisable for any shares of its capital stock (other than as suchrequired under the Company Stock Plans); (b) neither issue, sell, pledge, dispose of, grant or encumber (i) any shares of, or redeem securities convertible into or otherwise acquire exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or any Voting Debt (other than the issuance of Shares pursuant to the exercise of a Company Option or Company RSU outstanding on the date hereof under the Company Stock Plans) or (ii) any assets of Company (including cash, cash equivalents or marketable securities) or any of its securities Subsidiaries, except in the ordinary course of business and in a manner consistent with past practice; (c) other than in the ordinary and usual course of business and in a manner consistent with past practice and other than transactions not in excess of $50,000 (fifty thousand dollars) in the aggregate in any calendar year, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any securities of its property or assets (including capital stock of any of subsidiariesits Subsidiaries); (d) by any means, (i) make any acquisition of, or investment in, assets or stock (whether by way of merger, consolidation, tender offer, share exchange or other activity) in any transaction or any series of transactions (whether or not related) for an aggregate purchase price or prices, including the assumption of any debt, in excess of $100,000 (one hundred thousand dollars) in the aggregate in any calendar year, except for acquisitions mandated by binding legal commitments existing on the date hereof; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any person, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement that contemplates an exchange of value in excess of $100,000 (one hundred thousand dollars) or $100,000 (one hundred thousand dollars) over the life of such contract or agreement, other than in the ordinary course of business and consistent with past practice; (iv) authorize, or make any commitment with respect to, any single capital expenditure which is in excess of $100,000 (one hundred thousand dollars) or capital expenditures which are, in the aggregate, in excess of $500,000 (five hundred thousand dollars) for the Company and the Subsidiaries taken as a whole; provided, that Company shall consult with Parent on all capital expenditures in excess of $50,000 (fifty-thousand dollars) and shall give good-faith consideration to Parent’s comment on the expenditure; provided, further, that with respect to this Section 4.1(d)(iv), Parent shall have been deemed to have provided its consent in the event it shall have not responded to Company’s request for consent within five (5) Business Days from the date of delivery to Parent of such written request, or (v) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 4.1(d); (e) other than in the ordinary and usual course of business, (i) modify, amend, or terminate any Contract that is material to Company and its Subsidiaries taken as a whole, and Company shall use its reasonable best efforts to cause any such Contract to remain in full force and effect, (ii) waive, release, relinquish or assign any such Contract (or any of the material rights of Company or any of its Subsidiaries thereunder), right or claim, that is material to Company and its Subsidiaries taken as a whole, (iii) grant any power of attorney or (iv) cancel or forgive any material indebtedness owed to Company or any of its Subsidiaries; (f) Company shall not (i) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other similar reorganization of Company or any Subsidiary of its subsidiaries Company, or (ii) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates, other than the Merger); (e) alter, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure of ownership of any subsidiary; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings under existing lines of credit in the usual and ordinary course of business provided that notice is provided to Parent; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company incurred in the ordinary course of business provided that notice is provided to Parent; (iii) make any loans, advances or capital contributions to or investments in any other person (other than to subsidiaries of Company or customary loans or advances to employees in each case in the ordinary course of business consistent with past practice); (iv) pledge or otherwise encumber shares of capital stock of Company or its subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon (other than tax liens for Taxes not yet due)business; (g) neither Company nor any of its Subsidiaries shall (i) engage in reductions in force, hire additional employees (except as set forth in SECTION 4.1 of the Company Disclosure Schedule or as may be required by law, enter into adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); PROVIDED, HOWEVER, that this paragraph shall not prevent Company or its subsidiaries from entering into employment agreements, severance agreements or other compensation arrangements with employees hired in the ordinary course of business and consistent with past practice; (h) except as set forth in SECTION 4.1 of the Company Disclosure Schedule), acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of $50,000 in the aggregate; (i) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it; (j) revalue in any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary course of business; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contract employment agreement with any person that would employ such person at the level of a director or agreementabove, provided that with respect to this Section 4.1(g)(ii), Parent shall have been deemed to have provided its consent in the event it shall have not responded to Company’s request for consent within five (5) Business Days from the date of delivery to Parent of such written request (iii) terminate, establish, adopt, enter into, make any new grants under, amend or otherwise modify any Compensation and Benefit Plans, (iv) increase the salary, wage, bonus or other than compensation of any employees or (v) enter into any collective bargaining agreement except for (a) increases in base salaries occurring in the ordinary and usual course of business or (b) actions necessary to satisfy existing contractual obligations under Compensation and Benefit Plans existing as of the date hereof; (h) fail to maintain with financially responsible insurance companies (or through self-insurance) insurance in such amounts and against such risks and losses as are consistent with the insurance maintained by it and its Subsidiaries in the ordinary course of business consistent with past practice; (i) except in the ordinary and usual course of business or as may be required by applicable Law and except to the extent required by U.S. GAAP as advised by its regular independent accountants, change any accounting principle, practice or method in a manner that would is inconsistent with past practice; (j) take any action that could reasonably be material expected to Company and its subsidiaries, taken as a whole; result in (iiii) any of the conditions to the Merger set forth in Article VI not being satisfied or (ii) otherwise prevent or materially impair or materially delay the ability of such party to consummate the Merger or the other transactions contemplated hereby; (k) authorize any new capital expenditure or expenditures that individually is in excess of $50,000 or in enter into an agreement to do anything prohibited by the aggregate are in excess of $400,000 PROVIDED that none of the foregoing shall limit any capital expenditure required pursuant to existing Leases or other existing contractsforegoing; (l) fail to (i) timely file all income and other material Tax Returns required to be filed with any taxing authority in accordance with all applicable laws; (ii) timely pay all material Taxes due and payable; and (iii) promptly notify Parent of any action, suit, proceeding, investigation, audit or claim pending against or with respect to Company or any Subsidiary of Company in respect of any material amount of Tax. Neither Company nor any of its Subsidiaries shall make any tax Tax election or settle or compromise any material income tax liability material to Company and its subsidiaries taken as a wholewithout the prior written consent of Parent which shall not be unreasonably withheld; (m) commence or settle or compromise any pending or threatened litigation, suit, action claim or claim proceeding, other than in an amount less than $40,000 (forty thousand dollars); provided that with respect to this Section 4.1(m), Parent shall have been deemed to have provided its consent in the event it shall have not responded to Company’s request for consent within five (i5) relates Business Days from the date of delivery to the transactions contemplated hereby or (ii) the settlement or compromise Parent of which could have a Material Adverse Effect on Companysuch written request ; orand (n) take fail to make in a timely manner any filings with the SEC required under the Securities Act or agree in writing the Exchange Act or otherwise to take any of the actions described in SECTIONS 4.1(a) through 4.1(m) or any action that would make any of the representations or warranties of Company contained in this Agreement materially untrue or incorrectrules and regulations promulgated thereunder.

Conduct of Business of Company. Except as contemplated by this Agreement expressly provided for herein or as described in SECTION 4.1 of the Company Disclosure ScheduleFiber Cement Agreement, during the period from the date hereof of this Agreement to the Effective Time, Company willshall, and will shall cause each of its subsidiaries Subsidiaries to, conduct act and carry on its operations business only in the ordinary course of business consistent with past practice, practice and, to the extent consistent therewith and with no less diligence and effort than would be applied in the absence of this Agreementtherewith, will seek use reasonable efforts to preserve intact its current business organizations, keep available the service services of its current key officers and employees and preserve its the goodwill of those engaged in material business relationships with customersCompany. To that end, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without without limiting the generality of the foregoing, except as otherwise expressly provided for in this Agreement or as described in SECTION 4.1 of the Fiber Cement Agreement, Company Disclosure Scheduleshall not, prior to the Effective Time, neither Company nor and shall not permit any of its subsidiaries willSubsidiaries to, without the prior written consent of Parent and Newco (which consent shall not be unreasonably withheld):Parent: (ai) amend its Charter (A) declare, set aside or bylaws pay any dividends on, or make any other distributions (whether in cash, securities or other similar governing instrument); (bproperty) authorize for issuance, issue, sell, deliver or agree or commit to issue sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (except bank loans) or equity equivalents (including, without limitationin respect of, any of its outstanding capital stock options or stock appreciation rights(other than, with respect to a Subsidiary of Company, to its corporate parent), except for the issuance and sale of Shares pursuant to options previously granted or subsequently granted in the ordinary course and consistent with past practice under Company Plans or pursuant to previously granted warrants; (cB) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares, except, in the case of this clause (C), for the acquisition of Shares from holders of Options in full or partial payment of the exercise price payable by such holder upon exercise of Options; (ii) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to stockholders in their capacity as such, or redeem or otherwise acquire any of its voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities, other than upon the exercise of any Options outstanding on the date of subsidiariesthis Agreement; (diii) adopt a plan amend its certificate of complete or partial liquidationincorporation, dissolution, merger, consolidation, restructuring, recapitalization bylaws or other reorganization of comparable charter or organizational documents, except for any amendment required in connection with the performance by Company or any of its subsidiaries (other than the Merger)obligations under this Agreement, including but not limited to its obligations under Section 1.4; (eiv) alterdirectly or indirectly acquire, through merger, liquidation, reorganization, restructuring or any other fashion, the corporate structure of ownership of any subsidiary; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings under existing lines of credit in the ordinary course of business provided that notice is provided to Parent; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business consistent with past practice and except for obligations of subsidiaries of Company incurred in the ordinary course of business provided that notice is provided to Parent; (iii) make any loansinvestment in, advances or make any capital contributions to or investments in to, any other person (other than to subsidiaries of Company or customary loans or advances to employees in each case in the ordinary course of business consistent with past practice); (iv) pledge or otherwise encumber shares of capital stock of Company or its subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon (other than tax liens for Taxes not yet due); (g) except as set forth in SECTION 4.1 of the Company Disclosure Schedule or as may be required by law, enter into adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units); PROVIDED, HOWEVER, that this paragraph shall not prevent Company or its subsidiaries from entering into employment agreements, severance agreements or other compensation arrangements with employees in the ordinary course of business and consistent with past practice; (h) except as set forth in SECTION 4.1 of the Company Disclosure Schedule, acquire, sell, lease or dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of $50,000 in the aggregate; (i) except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting principles or practices used by it; (j) revalue in any material respect any of its assets, including without limitation writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary course of business; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any equity interest therein; (ii) enter into any contract or agreement, other than in the ordinary course of business consistent with past practice, that would be material to Company and its subsidiaries, taken as a whole; (iii) authorize any new capital expenditure or expenditures that individually is in excess of $50,000 or in the aggregate are in excess of $400,000 PROVIDED that none of the foregoing shall limit any capital expenditure required pursuant to existing Leases or other existing contracts; (lv) directly or indirectly sell, pledge or otherwise dispose of or encumber any of its properties or assets that are material to its business, except for sales, pledges or other dispositions or encumbrances in the ordinary course of business consistent with past practice; (vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, other than indebtedness owing to or guarantees of indebtedness owing to Company or any direct or indirect wholly owned Subsidiary of Company or (B) make any tax election loans or settle or compromise advances to any income tax liability material other person, other than to Company or to any direct or indirect wholly owned Subsidiary of Company and its subsidiaries taken as a wholeother than routine advances to employees consistent with past practice, except, in the case of clause (A), for borrowings under existing credit facilities described in the Filed SEC Documents in the ordinary course of business consistent with past practice; (mvii) settle enter into any compromise or compromise settlement of, or take any pending or threatened material action with respect to, any litigation, action, suit, action claim, proceeding or claim that investigation other than the prosecution, defense and settlement of routine litigation, actions, suits, claims, proceedings or investigations in the ordinary course of business; (iviii) relates grant or agree to grant to any officer, employee or consultant any increase in wages or bonus, severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to amend any existing Company Plans, except as may be required under existing agreements or by law or pursuant to the transactions contemplated hereby normal severance policies or (ii) practices of Company or its Subsidiaries as in effect on the settlement date of this Agreement, or compromise increases in salary or wages payable or to become payable in the ordinary course of which could have a Material Adverse Effect on Company; orbusiness consistent with past practice; (nix) take accelerate the payment, right to payment or agree in writing vesting of any bonus, severance, profit sharing, retirement, deferred compensation, stock option, insurance or otherwise to take any of the actions described in SECTIONS 4.1(a) through 4.1(m) other compensation or any action that would make any of the representations or warranties of Company contained in this Agreement materially untrue or incorrect.benefits;