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

Conduct of Business of the Company. Except as described in Section 6.1 of the Company Disclosure Letter or as expressly provided for by this Agreement, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and the Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization and to preserve the present relationships with those Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries to: (a) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) on any shares of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests); (d) (i) make any acquisition or disposition, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice, (ii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; (f) make any loans, advances or capital contributions to, or investments in, any other Person (other than any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceeding; or (o) offer, agree or commit, in writing or otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

Conduct of Business of the Company. Except as described in Section 6.1 of the The Company Disclosure Letter or as expressly provided for by this Agreementcovenants and agrees that, during the period from between the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, unless Brekford shall otherwise consent in writing, and except as described on Schedule 6.2 hereto or as otherwise expressly contemplated hereby, the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and the Company will use and will cause each of its Subsidiaries to use its their commercially reasonable efforts to preserve substantially intact its their business organization organizations, to keep available the services of those of their present officers, employees and consultants who are integral to the operation of their businesses as presently conducted and to preserve the their present relationships with those Persons having significant clients and with other persons with whom they have significant business relationships with relations. By way of amplification and not limitation, except as set forth on Schedule 6.2 hereto or as otherwise expressly contemplated by this Agreement, the Company agrees on behalf of itself and each of its Subsidiaries that they will not, between the date of this Agreement and the Effective Time, directly or indirectly, do any of the following without the prior written consent of Brekford: (a) (i) except for (A) the issuance of Company Common Stock in order to satisfy obligations under employee benefit plans disclosed in Schedule 5.16; (B) grants of Company Options as set forth in Schedule 6.2; (C) the issuance of securities by any of the Company’s Subsidiaries to any person which is directly or indirectly wholly-owned by the Company; and (D) the issuance of Company Common Stock to satisfy the exercise of outstanding Company Warrants or outstanding Company Options, issue, sell, pledge, dispose of, encumber, authorize, or propose the issuance, sale, pledge, disposition, encumbrance or authorization of any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock of, or any other ownership interest in, the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries to: (aii) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize amend or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms Certificate of any shares of its capital stock Incorporation or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) on any shares of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests); (d) (i) make any acquisition or disposition, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities Bylaws of the Company or any of its Subsidiaries or adopt any Personshareholder rights plan or related rights agreement; (iii) split, combine or reclassify any outstanding shares of Company Common Stock, or declare, set aside or pay any dividend or distribution payable in each case involving cash, stock, property or otherwise with respect to such shares; (iv) redeem, purchase or otherwise acquire or offer to redeem, purchase or otherwise acquire any shares of its capital stock; or (v) authorize or propose or enter into any contract, agreement, commitment or arrangement with respect to any of the payment matters prohibited by this Section 6.2(a); (b) (i) other than as set forth on Schedule 2(b)(i)(B) hereto, acquire (by merger, consolidation, or acquisition of consideration (including consideration stock or assets) any corporation, partnership or other business organization or division thereof or make any investment in another entity other than an entity which is a wholly-owned Subsidiary of the Company as of the date hereof, except for investments which do not exceed $50,000 for any single investment or series of related investments, or $100,000 in the form of assumption of Liabilitiesaggregate for all such investments in any twelve (12)-month period; (ii) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities except in the ordinary course of business and in a manner consistent with past practice, (ii) adopt a plan of complete or partial liquidationsell, dissolutionpledge, recapitalization or restructuringdispose of, or encumber or authorize or propose the sale, pledge, disposition or encumbrance of any assets of the Company or any of its Subsidiaries; (iii) authorize or make capital expenditures which are in excess of the amounts shown in Schedule 6.2 hereto; (iv) enter into a Material Contract any agreement, contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent commitment which involves payments by the consummation of the Merger Company or any of its Subsidiaries in an amount in excess of $50,000 individually or as part of a series of related transactions, except for agreements, contracts and commitments of a type referred to in another clause of this subsection (b) and not prohibited thereby because of the transactions contemplated thereby;amount of such contract; or (v) authorize, enter into or amend any contract, agreement, commitment or arrangement with respect to any of the matters prohibited by this Section 6.2(b); or (ec) (i) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except person or issue or sell any direct debt securities or indirect wholly owned Subsidiaries warrants or rights to acquire any debt securities of the Company or any of its Subsidiaries or guarantee any debt securities of others (other than the Company or any of its wholly-owned Subsidiaries) or enter into or amend any contract, agreement, commitment or arrangement with respect to any of the foregoing, other than (A) in connection replacement for existing or maturing debt, (B) borrowings by the Company under its lines of credit existing on the date hereof up to the maximum amount permitted thereunder (as such maximum amount may be reduced from time to time in accordance with the Company’s retail products and terms thereof) or (C) capital leases or other retail activities in vendor financing for capital assets the ordinary course acquisition of business consistent with past practice; which is otherwise permitted under this Agreement; (fii) make any loans, advances or capital contributions to, or investments in, any other Person person (other than any direct or indirect wholly to the wholly-owned Subsidiaries subsidiaries of the Company or customary loans or advances to employees in connection the ordinary course of business consistent with past practice and in amounts not material to the maker of such loan or advance); or (iii) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereupon; (d) enter into (i) leveraged derivative contracts (defined as contracts that use a factor to multiply the underlying index exposure), or (ii) other derivative contracts except for the purpose of hedging known interest rate and foreign exchange exposures or otherwise reducing such Party’s cost of financing; (e) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Company Merger); (f) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any of the Company’s retail products Subsidiaries; (g) except as may be required by law or as contemplated by this Agreement, enter into, adopt or amend or terminate any Company Benefit Plan, or (except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company, and as required under existing agreements or in the ordinary course of business generally consistent with past practice) increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any Company Benefit Plan as in effect as of the date hereof; (h) make any payments (except in the ordinary course of business and in amounts and in a manner consistent with past practice or as otherwise required by Legal Requirements or the provisions of any Company Benefit Plan) under any Company Benefit Plan to any director or employee of, or independent contractor or consultant to, the Company or its Subsidiaries; (i) change in any material respect its tax or accounting policies, methods or procedures except as required by GAAP; (j) change in any material respect its tax or accounting policies, methods or procedures except as required by GAAP; (k) do any act or omit to do any act which would cause a material breach of any material contract, commitment or obligation; (l) take any action which could reasonably be expected to adversely affect or delay the ability of any of the Parties to obtain any approval of any governmental or regulatory body required to consummate the transactions contemplated hereby; (m) (i) issue SARs, new performance shares, restricted stock, or similar equity based rights; (ii) materially modify (with materiality to be determined with respect to the Company Benefit Plan in question) any actuarial cost method, assumption or practice used in determining benefit obligations, annual expense and funding for any Company Benefit Plan, except to the extent required by GAAP; (iii) materially modify (with materiality to be determined with respect to the Company Benefit Plan trust in question) the investment philosophy of the Company Benefit Plan trusts or maintain an asset allocation which is not consistent with such philosophy, subject to any ERISA fiduciary obligation; (iv) subject to any ERISA fiduciary obligation, enter into any outsourcing agreement, or any other retail activities material contract relating to the Company Benefit Plans or management of the Company Benefit Plan trusts; (v) offer any new or extend any existing retirement incentive, “window” or similar benefit program; (vi) grant any ad hoc pension increase; (vii) establish any new or fund any existing “rabbi” or similar trust (except in accordance with the current terms of such trust), or enter into any other arrangement for the purpose of securing non-qualified benefits or deferred compensation; (viii) adopt or implement any corporate owned life insurance; or (ix) adopt, implement or maintain any “split dollar” life insurance program; (n) take any action which would cause its representations and warranties contained herein to become inaccurate in any material respect; (o) 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 or as required by GAAP; (p) make or revoke any tax election or settle or compromise any tax liability material to the Company and/or any of its Subsidiaries taken as a whole or change (or make a request to any taxing authority to change) any material aspect of its method of accounting for tax purposes, other than as required by applicable Legal Requirements; (q) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company and its Subsidiaries or incurred in the ordinary course of business consistent with past practice) in excess of $100,000; (gr) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement settle or compromise of any material Tax liabilitypending or threatened suit, agree to any adjustment of any material Tax attribute, or surrender any right action or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those transactions contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceedinghereby; or (os) offer, agree make any significant distribution or commit, in writing or otherwise, to take any redemption of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationssecurities.

Conduct of Business of the Company. Except as described in Section 6.1 of the Company Disclosure Letter or as expressly provided for by this Agreement, during During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, the Company will conduct shall, and will shall cause each of its Subsidiaries to, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed), to use its commercially reasonable efforts to conduct its operations business in all material respects according to its the ordinary and usual course of business consistent with past practice, and and, to the extent consistent therewith, the Company will use shall, and will shall cause each of its Subsidiaries to to, (i) use its commercially reasonable efforts to preserve substantially intact its and its Subsidiaries’ business organization organization, to keep available the services of its and its Subsidiaries’ current officers and employees, to preserve the its and its Subsidiaries’ present relationships with those customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it and (ii) use commercially reasonable efforts to conduct its audit procedures in order to complete the Company or any audit of its Subsidiaries; providedfinancial statements for the year ended December 31, however2019, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentenceMarch 31, 2020. Without limiting the generality of the foregoing foregoing, between the date of this Agreement and the Effective Time, except as otherwise expressly provided for contemplated by this Agreement, during as set forth in Section 5.01 of the period specified in Company Disclosure Letter, or as required by applicable Law, the preceding sentenceCompany shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries to:): (a) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize amend or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their termsamend its Charter Documents; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (ci) split, combine, subdivideor reclassify any Company Securities or Company Subsidiary Securities, reclassify (ii) repurchase, redeem, or otherwise amend the terms of acquire, or offer to repurchase, redeem, or otherwise acquire, any shares of its capital stock Company Securities or Company Subsidiary Securities, or (iii) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property property, or otherwise) in respect of, or enter into any combination thereof) on Contract with respect to the voting of, any shares of its capital stock (other than cash dividends paid from its direct or indirect wholly owned Subsidiaries); (c) issue, sell, pledge, dispose of, or encumber any Company Securities or Company Subsidiary Securities, other than the issuance of shares of Company Common Stock upon the exercise of any Company Equity Award outstanding as of the date of this Agreement in accordance with its terms or pursuant to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary terms of the Company with regard to its capital stock or other equity interests)CHOP Note; (d) except as required by applicable Law or by any Company Employee Plan or Contract in effect as of the date of this Agreement (i) make any acquisition increase the compensation payable or disposition, or make any offer or agreement to acquire or dispose that could become payable by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries to directors, officers, or employees, (ii) promote any officers or employees, or (iii) establish, adopt, enter into, amend, terminate, exercise any discretion under, or take any action to accelerate rights under any Company Employee Plans or any plan, agreement, program, policy, trust, fund, or other arrangement that would be a Company Employee Plan if it were in existence as of the date of this Agreement, or make any contribution to any Company Employee Plan, other than contributions required by Law or the terms of such Company Employee Plans as in effect on the date hereof; (e) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances, or capital contributions to or investments in any Person; (f) (i) transfer, license, sell, lease, or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber, or otherwise subject to any Lien (other than a Permitted Lien), any assets, including the capital stock or other equity interests in any Subsidiary of the Company; provided, that the foregoing shall not prohibit the Company and its Subsidiaries from transferring, selling, leasing, or disposing of obsolete equipment or assets being replaced, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice, or (ii) adopt or effect a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, recapitalization, or other reorganization; (iiig) enter into a Material Contract other than the Buyer AZ Note and the Buyer LOC Note, repurchase, prepay, or amend incur any indebtedness for borrowed money or terminate guarantee any Material Contract in such indebtedness of another Person, issue or sell any material respect debt securities or grant options, warrants, calls, or other rights to acquire any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation debt securities of the Merger Company or any of the transactions contemplated thereby; (e) assumeits Subsidiaries, guaranteeguarantee any debt securities of another Person, endorse enter into any “keep well” or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations other Contract to maintain any financial statement condition of any other Person (other than any wholly owned Subsidiary of it) or enter into any arrangement having the economic effect of any of the foregoing; (h) except as set forth in Section 5.01(h) of the Company Disclosure Letter, enter into or amend or modify in any material respect, or consent to the termination of (other than at its stated expiry date), any Company Material Contract or any Lease with respect to Real Estate or any other Contract or Lease that, if in effect as of the date hereof would constitute a Company Material Contract or Lease with respect to Real Estate hereunder; (i) institute, settle, or compromise any Legal Action involving the payment of monetary damages by the Company or any of its Subsidiaries of any amount exceeding $50,000 in the aggregate, other than (i) any Legal Action brought against Parent, Merger Sub, or Second Merger Sub arising out of a breach or alleged breach of this Agreement by Parent, Merger Sub, or Second Merger Sub, and (ii) the settlement of claims, liabilities, or obligations reserved against on the Company Balance Sheet; provided, that neither the Company nor any of its Subsidiaries shall settle or agree to settle any Legal Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive impact on the Company’s business; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) (i) settle or compromise any Tax claim, audit, or assessment regarding the Company or any of its Subsidiaries for an amount in excess of $100,000 except the amount reserved or accrued on the Company Balance Sheet (or most recent consolidated balance sheet included in the Company SEC Documents), (ii) make, revoke or change any direct material Tax election, change any annual Tax accounting period, or indirect wholly owned Subsidiaries adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, (iv) enter into any material closing agreement, surrender in writing any right to claim a Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or its Subsidiaries; or (v) enter into any Tax sharing or similar agreement or arrangement (other than customary commercial Contracts the primary purpose of which is unrelated to Taxes) or take any similar action inconsistent with the Company’s or any Subsidiary’s prior course of action that would increase the liability for Taxes of the Company or any of its Subsidiaries for any period after the Closing; (l) enter into any material agreement, agreement in connection principle, letter of intent, memorandum of understanding, or similar Contract with the Company’s retail products and respect to any joint venture, strategic partnership, or alliance; (m) abandon, allow to lapse, sell, assign, transfer, grant any security interest in or otherwise encumber or dispose of any material Company IP, or grant any right or license to any material Company IP other retail activities than pursuant to non-exclusive licenses entered into in the ordinary course of business consistent with past practice; (fn) make incur any loans, advances expenditures or capital contributions to, enter into any commitment or investments in, any other Person transaction exceeding $25,000 individually or $50,000 in the aggregate (other than any direct or indirect wholly owned Subsidiaries of the Company or expenditures incurred in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those transactions contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice (it being acknowledged that on November 20, 2019, the Company dosed the first patient with AEVI-002 in a Phase Ib clinical trial for patients with moderate to fund working capital requirementssevere active Crohn’s Disease).; (no) except as set forth on Section 6.1(n) of the Company Disclosure Letterterminate or modify in any material respect, settle (i) or fail to exercise renewal rights with respect to, any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceedingmaterial insurance policy; or (op) offer, agree or commit, in writing or otherwise, commit to take do any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

Conduct of Business of the Company. Except as described in Section 6.1 of the The Company Disclosure Letter or as expressly provided for by this Agreementcovenants and agrees that, during the period from between the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, unless Brekford shall otherwise consent in writing, and except as described on Schedule 6.2 hereto or as otherwise expressly contemplated hereby, the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and the Company will use and will cause each of its Subsidiaries to use its their commercially reasonable efforts to preserve substantially intact its their business organization organizations, to keep available the services of those of their present officers, employees and consultants who are integral to the operation of their businesses as presently conducted and to preserve the their present relationships with those Persons having significant clients and with other persons with whom they have significant business relationships with relations. By way of amplification and not limitation, except as set forth on Schedule 6.2 hereto or as otherwise expressly contemplated by this Agreement, the Company agrees on behalf of itself and each of its Subsidiaries that they will not, between the date of this Agreement and the Effective Time, directly or indirectly, do any of the following without the prior written consent of Brekford: (a) (i) except for (A) the issuance of Company Common Stock in order to satisfy obligations under employee benefit plans disclosed in Schedule 5.16; (B) grants of Company Options as set forth in Schedule 6.2; (C) the issuance of securities by any of the Company’s Subsidiaries to any person which is directly or indirectly wholly-owned by the Company; and (D) the issuance of Company Common Stock to satisfy the exercise of outstanding Company Warrants or outstanding Company Options, issue, sell, pledge, dispose of, encumber, authorize, or propose the issuance, sale, pledge, disposition, encumbrance or authorization of any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock of, or any other ownership interest in, the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries to: (aii) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize amend or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms Certificate of any shares of its capital stock Incorporation or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) on any shares of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests); (d) (i) make any acquisition or disposition, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities Bylaws of the Company or any of its Subsidiaries or adopt any Personshareholder rights plan or related rights agreement; (iii) split, combine or reclassify any outstanding shares of Company Common Stock, or declare, set aside or pay any dividend or distribution payable in each case involving cash, stock, property or otherwise with respect to such shares; (iv) redeem, purchase or otherwise acquire or offer to redeem, purchase or otherwise acquire any shares of its capital stock; or (v) authorize or propose or enter into any contract, agreement, commitment or arrangement with respect to any of the payment matters prohibited by this Section 6.2(a); (i) other than as set forth on Schedule 2(b)(i)(B) hereto, acquire (by merger, consolidation, or acquisition of consideration (including consideration stock or assets) any corporation, partnership or other business organization or division thereof or make any investment in another entity other than an entity which is a wholly-owned Subsidiary of the Company as of the date hereof, except for investments which do not exceed $50,000 for any single investment or series of related investments, or $100,000 in the form of assumption of Liabilitiesaggregate for all such investments in any twelve (12)-month period; (ii) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities except in the ordinary course of business and in a manner consistent with past practice, (ii) adopt a plan of complete or partial liquidationsell, dissolutionpledge, recapitalization or restructuringdispose of, or encumber or authorize or propose the sale, pledge, disposition or encumbrance of any assets of the Company or any of its Subsidiaries; (iii) authorize or make capital expenditures which are in excess of the amounts shown in Schedule 6.2 hereto; (iv) enter into a Material Contract any agreement, contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent commitment which involves payments by the consummation of the Merger Company or any of its Subsidiaries in an amount in excess of $50,000 individually or as part of a series of related transactions, except for agreements, contracts and commitments of a type referred to in another clause of this subsection (b) and not prohibited thereby because of the transactions contemplated thereby;amount of such contract; or (v) authorize, enter into or amend any contract, agreement, commitment or arrangement with respect to any of the matters prohibited by this Section 6.2(b); or (ec) (i) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except person or issue or sell any direct debt securities or indirect wholly owned Subsidiaries warrants or rights to acquire any debt securities of the Company or any of its Subsidiaries or guarantee any debt securities of others (other than the Company or any of its wholly-owned Subsidiaries) or enter into or amend any contract, agreement, commitment or arrangement with respect to any of the foregoing, other than (A) in connection replacement for existing or maturing debt, (B) borrowings by the Company under its lines of credit existing on the date hereof up to the maximum amount permitted thereunder (as such maximum amount may be reduced from time to time in accordance with the Company’s retail products and terms thereof) or (C) capital leases or other retail activities in vendor financing for capital assets the ordinary course acquisition of business consistent with past practice; which is otherwise permitted under this Agreement; (fii) make any loans, advances or capital contributions to, or investments in, any other Person person (other than any direct or indirect wholly to the wholly-owned Subsidiaries subsidiaries of the Company or customary loans or advances to employees in connection the ordinary course of business consistent with past practice and in amounts not material to the maker of such loan or advance); or (iii) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material lien thereupon; (d) enter into (i) leveraged derivative contracts (defined as contracts that use a factor to multiply the underlying index exposure), or (ii) other derivative contracts except for the purpose of hedging known interest rate and foreign exchange exposures or otherwise reducing such Party’s cost of financing; (e) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Company Merger); (f) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any of the Company’s retail products Subsidiaries; (g) except as may be required by law or as contemplated by this Agreement, enter into, adopt or amend or terminate any Company Benefit Plan, or (except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company, and as required under existing agreements or in the ordinary course of business generally consistent with past practice) increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any Company Benefit Plan as in effect as of the date hereof; (h) make any payments (except in the ordinary course of business and in amounts and in a manner consistent with past practice or as otherwise required by Legal Requirements or the provisions of any Company Benefit Plan) under any Company Benefit Plan to any director or employee of, or independent contractor or consultant to, the Company or its Subsidiaries; (i) change in any material respect its tax or accounting policies, methods or procedures except as required by GAAP; (j) change in any material respect its tax or accounting policies, methods or procedures except as required by GAAP; (k) do any act or omit to do any act which would cause a material breach of any material contract, commitment or obligation; (l) take any action which could reasonably be expected to adversely affect or delay the ability of any of the Parties to obtain any approval of any governmental or regulatory body required to consummate the transactions contemplated hereby; (m) (i) issue SARs, new performance shares, restricted stock, or similar equity based rights; (ii) materially modify (with materiality to be determined with respect to the Company Benefit Plan in question) any actuarial cost method, assumption or practice used in determining benefit obligations, annual expense and funding for any Company Benefit Plan, except to the extent required by GAAP; (iii) materially modify (with materiality to be determined with respect to the Company Benefit Plan trust in question) the investment philosophy of the Company Benefit Plan trusts or maintain an asset allocation which is not consistent with such philosophy, subject to any ERISA fiduciary obligation; (iv) subject to any ERISA fiduciary obligation, enter into any outsourcing agreement, or any other retail activities material contract relating to the Company Benefit Plans or management of the Company Benefit Plan trusts; (v) offer any new or extend any existing retirement incentive, “window” or similar benefit program; (vi) grant any ad hoc pension increase; (vii) establish any new or fund any existing “rabbi” or similar trust (except in accordance with the current terms of such trust), or enter into any other arrangement for the purpose of securing non-qualified benefits or deferred compensation; (viii) adopt or implement any corporate owned life insurance; or (ix) adopt, implement or maintain any “split dollar” life insurance program; (n) take any action which would cause its representations and warranties contained herein to become inaccurate in any material respect; (o) 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 or as required by GAAP; (p) make or revoke any tax election or settle or compromise any tax liability material to the Company and/or any of its Subsidiaries taken as a whole or change (or make a request to any taxing authority to change) any material aspect of its method of accounting for tax purposes, other than as required by applicable Legal Requirements; (q) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company and its Subsidiaries or incurred in the ordinary course of business consistent with past practice) in excess of $100,000; (gr) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement settle or compromise of any material Tax liabilitypending or threatened suit, agree to any adjustment of any material Tax attribute, or surrender any right action or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those transactions contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceedinghereby; or (os) offer, agree make any significant distribution or commit, in writing or otherwise, to take any redemption of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationssecurities.

Conduct of Business of the Company. Except as described in Section 6.1 contemplated by this Agreement or with the prior written consent of the Company Disclosure Letter or as expressly provided for by this AgreementParent, during the period from the date of this Agreement and continuing until to the earlier earliest to occur of (a) such time as Purchaser Insiders shall constitute a majority of the termination of Company’s Board, (b) such time as this Agreement or is terminated in accordance with Section 8.01, and (c) the Effective Time, the Company will conduct will, and will cause each of its Subsidiaries to subsidiaries to, (i) conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and the Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization and to preserve the present relationships with those Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries to: (a) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) on any shares of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests); (d) (i) make any acquisition or disposition, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities only in the ordinary course of business consistent with past practice, (ii) use its commercially reasonable efforts to preserve intact the business or organization of the Company and each of its subsidiaries and to keep available the services of its and their present officers, consultants, and key employees, and (iii) use its commercially reasonable efforts to preserve the goodwill of those having business relationships with it, as well as with officials and employees of government agencies and other entities which regulate the Company, its subsidiaries, and their respective businesses. Without limiting the generality of the foregoing and except as otherwise contemplated by this Agreement or as set forth in Section 6.01 of the Company Disclosure Schedule, the Company will not, and will not permit any of its subsidiaries to, prior to the Effective Time, without the prior written consent of the Parent, which consent will not be unreasonably withheld (except as expressly permitted in Section 6.01(n) below) or delayed: (a) adopt any amendment to its certificate of incorporation, bylaws, or comparable organizational documents; (b) sell, pledge, or encumber any stock owned by it in any of its subsidiaries; (c) except for issuances of capital stock of the Company’s subsidiaries to the Company or a plan wholly owned subsidiary of complete the Company, (i) issue, reissue, sell, or partial liquidationconvey, dissolutionor authorize the issuance, recapitalization reissuance, sale, or restructuringconveyance of (A) shares of capital stock (or other ownership interests) of any class (including shares held in treasury), or securities convertible or exchangeable into capital stock (or other ownership interests) of any class, or any rights, warrants or options to acquire any such convertible or exchangeable securities or capital stock (or other ownership interests), or any Voting Debt, other than the issuance of Shares (and the related Rights), in accordance with the terms of the instruments governing such issuance on the date of this Agreement which instruments are set forth in Section 4.03 of the Company Disclosure Schedule, and pursuant to the exercise of Options and Warrants outstanding on the date of this Agreement and set forth in Section 4.03 of the Company Disclosure Schedule, or (iiiB) enter into a Material Contract or amend or terminate any Material Contract other securities in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contractof, in a manner that would reasonably be expected to materially delay lieu of, or prevent in substitution for, Shares outstanding on the consummation date of this Agreement; or (ii) make any other changes in the capital structure of the Merger Company, or in the case of clauses (i) and (ii) propose or agree to do any of the transactions contemplated therebyforegoing; (d) declare, set aside, or pay any dividend or other actual, constructive, or deemed distribution (whether in cash, securities, or property or any combination thereof) in respect of any class or series of its capital stock, or otherwise make any payments to stockholders in their capacity as stockholders, other than any distribution by a subsidiary of the Company to the Company or a wholly owned subsidiary of the Company; (e) split, combine, subdivide, reclassify or redeem, purchase, or otherwise acquire, or propose to redeem or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or any of its other securities; (f) increase the compensation or fringe benefits payable or to become payable to its present or former directors, officers, consultants, or employees (whether from the Company or any of its subsidiaries), or pay or award any benefit not required by any existing plan or arrangement (including, without limitation, the granting of stock options, stock appreciation rights, shares of restricted stock, or performance units pursuant to the Option Plans or otherwise), or grant any severance or termination pay to, or enter into any employment, severance, or other compensation agreement with, any director, officer, consultant, or employee of the Company or any of its subsidiaries, or establish, adopt, enter into, amend, or waive in any material respect any performance or vesting criteria or accelerate vesting or exercisability under any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance, or other employee benefit plan, agreement, trust, fund, policy, or arrangement for the benefit or welfare of any present or former director, officer, consultant, or employee (any of the foregoing being an “Employee Benefit Arrangement”), except in each case (i) to the extent required by applicable law or regulation, (ii) to the extent required under existing Employee Benefit Arrangements as described in Section 6.01 of the Company Disclosure Schedule, and (iii) for normal increases in salary, wages, and benefits of non-executive employees in the ordinary course of business consistent with past practice that do not result in a material increase in benefits or compensation expense to the Company or any of its subsidiaries; (g) acquire, mortgage, encumber, license, sell, lease, or dispose of any assets (other than inventory) or securities which are material to the Company and its subsidiaries, taken as a whole, or enter into any commitment to do any of the foregoing or enter into any material commitment or transaction outside the ordinary course of business; (h) (i) incur, assume, guarantee, endorse or prepay any indebtedness, except that the Company and its subsidiaries may incur, assume, or prepay indebtedness in the ordinary course of business consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse, or otherwise become liable or responsible (whether directly, contingently or otherwise) for the significant obligations of any other Person person other than a wholly owned subsidiary of the Company, (iii) pay, discharge, or satisfy any claims, liabilities, or obligations (absolute, accrued, contingent, or otherwise), other than the payment, discharge or satisfaction of liabilities in excess the ordinary course of business and consistent with past practice, (iv) make any loans, advances, or capital contributions to, or investments in, any other person, except to employees in the ordinary course of business consistent with past practice and except for loans, advances, capital contributions, or investments between any wholly owned subsidiary of the Company and the Company or another wholly owned subsidiary of the Company, (v) authorize or make any capital expenditures other than in the ordinary course of business consistent with past practice, or (vi) vary the Company’s business practices (including, without limitation, its inventory practices) in any material respect from the Company’s past practices; (i) settle or compromise any suit or claim or threatened suit or claim where the uninsured amount to be paid is greater than $100,000 except or where the settlement or compromise would include an admission by the Company or any direct subsidiary of its non-compliance with any securities or indirect wholly owned Subsidiaries other applicable law; (j) authorize, recommend, propose, or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any of its subsidiaries; (k) make any tax election not required by law or settle or compromise any material tax liability; (i) waive any rights of substantial value, (ii) cancel or forgive any indebtedness owed to the Company or any of its subsidiaries, or (iii) other than in connection the ordinary course of business consistent with past practice, make any payment, direct or indirect, of any material liability of the Company’s retail products and other retail activities Company or any of its subsidiaries before the same comes due in accordance with its terms; (m) voluntarily permit any material insurance policy naming the Company or any of its subsidiaries as a beneficiary or a loss payee to be canceled or terminated, except in the ordinary course of business consistent with past practice; (fn) enter into or amend any material lease, contract, or agreement other than in the ordinary course of business consistent with past practice (and the Company agrees that Parent may withhold its consent to the entry into or amendment of any (1) real property lease or (2) material contract or agreement having a duration of more than 18 months, in Parent’s sole and absolute discretion); provided, however, that the Company may not under any circumstance waive or release any of its rights under any confidentiality or standstill agreement to which it is a party; (o) except as may be required as a result of a change in law or under GAAP, make any loanschange in its methods, advances or capital contributions toprinciples, and practices of accounting, including tax accounting policies and procedures; (p) acquire (by merger, consolidation, or investments inacquisition of stock or assets) any corporation, any partnership, or other Person (other than any direct business organization or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities division thereof or, except in the ordinary course of business consistent with past practice) in excess of $100,000, any material assets; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (vq) enter into any settlement or compromise of any material Tax liabilityjoint venture, agree to any adjustment of any material Tax attributepartnership, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (lr) adopt, enter into, materially amend make any application or terminate filing with any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in Governmental Entity outside the ordinary course of business consistent with past practice to fund working capital requirements).practice; (ns) except as set forth on Section 6.1(n) adopt or amend any resolution or agreement concerning indemnification of the Company Disclosure Letterits directors, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof officers, employees, or (ii) any other Legal Proceedingagents; or (ot) offer, agree or commit, in writing or otherwise, otherwise to take any of the foregoing actions. Notwithstanding the foregoing, nothing actions or voluntarily take any action which could reasonably be expected to cause any representation or warranty in this Agreement is intended to give Parent, directly be or indirectly, become untrue or incorrect in any material respect or could reasonably be expected to cause any condition to the right to control or direct the business or operations consummation of the Company or its Subsidiaries at any time prior transactions contemplated by this Agreement not to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationsbe satisfied.

Conduct of Business of the Company. Except as described in Section 6.1 of the Company Disclosure Letter contemplated by this Agreement or as expressly provided for agreed to in writing by this AgreementParent, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or hereof to the Effective TimeDate, the Company will conduct and not, nor will cause each it permit any of its Subsidiaries to subsidiaries to, conduct its operations otherwise than in all material respects according to its the ordinary and usual course of business consistent with past practice, and the Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization and to preserve the present relationships with those Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing foregoing, and except as otherwise expressly provided for by in this Agreement, during prior to the period specified in Effective Date, the preceding sentenceBoard will not, without the prior written consent of Parent (which consent shall not be unreasonably conditionedor the Purchaser, withheld or delayed), permit the Company will not and will not permit or any of its Subsidiaries subsidiaries to: (a) except as set forth on Section 6.1(aamend or propose to amend its certificate or articles of incorporation or by-laws (or similar constituent documents); (b) of the Company Disclosure Letterauthorize for issuance, issue, sell, grant options deliver or rights agree or commit to purchaseissue, pledgesell or deliver (whether through the issuance or granting of options, deliverwarrants, transfercommitments, dispose of or encumber any shares of or securities convertible into or exchangeable forsubscriptions, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance otherwise) any stock of any shares of class or any other securities convertible into or exchangeable forequity equivalents (including, Company Securities without limitation, any stock options or Subsidiary Securitiesstock appreciation rights), other than Company except for Shares issuable issued upon exercise of the Company Options or vesting outstanding as of Company RSU Awards outstanding on the date hereof of this Agreement (in accordance with their respective terms; (b) acquire or redeem or offer pursuant to acquire or redeem, directly or indirectlythe existing terms of the Rights Agreement, or amend any Company Securities, except to the extent provided in of the terms of any Company Stock Plansuch securities or agreements outstanding as of the date hereof, except as specifically contemplated by this Agreement; (c) split, combine, subdivide, combine or reclassify or otherwise amend the terms of any shares of its capital stock or stock, declare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock, stock or property or any combination thereof) on any shares in respect of its capital stock (other than cash dividends paid to stock, or redeem or otherwise acquire any of its securities or any securities of its subsidiaries; provided, however, that the Company shall be allowed to pay the normal quarterly cash dividend for the first quarter of 1996 in the amount of $0.09 per Share, payable on or one about March 21, 1996 to stockholders of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests)record on March 7, 1996; (d) (i) make incur, assume or prepay any acquisition long-term or disposition, short-term debt or make issue any offer debt securities except for borrowing under existing lines of credit or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities prepayments in the ordinary course of business consistent with past practice, business; (ii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the any material obligations of any other Person in excess person except for obligations of $100,000 except any direct or indirect wholly wholly-owned Subsidiaries subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; ; (fiii) make any loans, advances or capital contributions to, or investments in, any other Person person (other than any direct or indirect wholly to wholly-owned Subsidiaries subsidiaries of the Company or customary loans or advances to employees in connection the ordinary course of business consistent with past practice and in amounts not material to the maker of such loan or advance); (iv) pledge or otherwise encumber shares of capital stock of the Company or any of its subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any lien thereupon, excluding Permitted Liens. (e) except as may be required by law or as contemplated by this Agreement, 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 (except for the trusts to be established pursuant to the Company’s retail products 's directors' retirement plan), plan, fund or other arrangement for the benefit or welfare of any director, officer or employee in any manner, or (except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company, and as required under existing agreements) 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 options, stock appreciation rights or performance units); (f) acquire, sell, lease or dispose of any assets outside the ordinary course of business or any assets which in the aggregate are material to the Company and its subsidiaries taken as a whole, or enter into any commitments, contracts, agreements or transactions outside the ordinary course of business consistent with past practice or which would, individually or in the aggregate, be material to the Company and its subsidiaries taken as a whole, or modify, amend, terminate or waive any material rights under any material contract or agreement; (g) except as may be required as a result of a change in law or in generally accepted accounting principles (after consultation with Parent as to the effect of any such change), change any of the accounting principles or practices used by it; (i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other retail activities 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 which would be material to the Company and its subsidiaries taken as a whole; or (iii) enter into or amend any contract, agreement, commitment or arrangement providing for the taking of any action that would be prohibited hereunder; (i) 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; (j) make any tax election or settle or compromise any federal, state or local tax liability or assent to the extension of time for collection or assessment of any federal, state or local tax (provided the Company and its subsidiaries may extend the time for filing 1995 tax returns in accordance with past practice); (k) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) of the Company and its subsidiaries or incurred in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adoptsettle or compromise any pending or threatened suit, enter intoaction or claim relating to the transactions contemplated hereby or material to the Company and its subsidiaries take as a whole, materially amend or terminate any material Plan except for the contemplated settlements with insurance carriers concerning environmental liabilities as disclosed to Parent (other than as required by applicable Law, and the Company agrees to reflect changes in plan administration, or in the ordinary course of businessconsult with Parent prior to finalizing such settlements); (m) incur authorize any new capital expenditure or any obligations, Liabilities expenditures which individually is in excess of $100,000 or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, aggregate are in excess of $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice to fund working capital requirements).1,000,000; or (n) except as set forth on Section 6.1(ntake, or agree in writing or otherwise to take, any of the actions described in Sections 7.1(a) through 7.1(m) or take, or omit to take, any action which would make any of the representations or warranties of the Company Disclosure Letter, settle (i) contained in this Agreement untrue or incorrect in any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to material respect as of the date hereof when made or (ii) any other Legal Proceeding; or (o) offer, agree or commit, would result in writing or otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, nothing conditions set forth in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationsAnnex I not being satisfied.

Conduct of Business of the Company. Except (a) From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall, and the Company shall cause its Subsidiaries to, except as described (1) expressly contemplated by this Agreement or any Ancillary Document, (2) required by applicable Law, (3) consented to in writing by CCTS (such consent not to be unreasonably withheld, conditioned or delayed) or (4) as set forth in Section ‎6.1 of the Company Disclosure Schedules, (i) operate the business of the Group Companies in the ordinary course in all material respects and in accordance with all applicable Law and (ii) use commercially reasonable efforts to maintain and preserve intact in all material respects the business organization, assets, properties and material business relations of the Group Companies, taken as a whole, and to maintain existing relations and goodwill with Governmental Entities and material customers, suppliers, licensors, licensees, distributors, creditors, lessors, and business associates and to keep available the services of the Group Companies’ present officers. (b) Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall, and the Company shall cause its Subsidiaries to, except as (1) expressly contemplated by this Agreement or any Ancillary Document, (2) required by applicable Law, (3) consented to in writing by CCTS (such consent not to be unreasonably withheld, conditioned or delayed) or (4) as set forth on Section 6.1 of the Company Disclosure Letter or as expressly provided for by this Agreement, during the period from the date of this Agreement and continuing until the earlier Schedules not do any of the termination of this Agreement or the Effective Time, the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and the Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization and to preserve the present relationships with those Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries tofollowing: (ai) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay a dividend on, or make any dividend or other distribution (whether or payment in cashrespect of, stockany Equity Securities of any Group Company or repurchase any outstanding Equity Securities of any Group Company, property other than dividends or distributions, declared, set aside or paid by any of the Company’s Subsidiaries to the Company or any combination thereofSubsidiary that is, directly or indirectly, wholly-owned by the Company, or enter into any agreement with respect to the voting rights of its capital stock; (ii) on reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests)share capital; (diii) (iA) make merge, consolidate, combine or amalgamate any acquisition Group Company with any Person or disposition(B) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or make by any offer other manner) any Equity Securities, material assets or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, other materials rights of any material businesscorporation, assets partnership, association or securities other business entity or organization or division thereof; (iv) adopt any saleamendments, supplements, restatements or modifications to any Group Company’s Governing Documents; (v) other than pursuant to Contracts to which the Company is a party that are in effect as of the date of this Agreement, transfer, sell, lease, encumbrance license, mortgage, pledge, charge or create any other disposition security interest over, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of assets or securities of the Company or any of its Subsidiaries material assets, properties, licenses, operations, rights, product lines, businesses or any Personinterests therein, in each case involving the payment of consideration except for (including consideration A) sales or other dispositions in the form ordinary course of assumption of Liabilitiesbusiness; (B) of $100,000 sales, leases, or more or the disposition other dispositions of assets or securities with a fair market value not in excess of $100,000250,000 in the aggregate or (C) non-exclusive licenses entered in the ordinary course of business; (vi) transfer, issue, sell, grant or otherwise directly or indirectly dispose of, or subject to a Lien, (A) any Equity Securities of any Group Company or (B) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating any Group Company to issue, deliver or sell any Equity Securities of any Group Company; provided that, for the avoidance of doubt, this shall not prohibit the issuance of Company Shares pursuant to the settlement of the TAG Agreement prior to the Company Share Exchange or the issuance of Holdco shares to any holder of Company Awards owed to them pursuant the Company Incentive Plan; (vii) incur, create or assume any Indebtedness, other than (A) ordinary course trade payables or (B) Indebtedness in an aggregate amount not to exceed $1,000,000; (viii) other than in the ordinary course of business, amend, modify, cancel, or waive any acquisition, disposition, sale, lease debts held by it; (ix) other than amendments or encumbrance modifications of assets related to the Company’s retail products and other retail activities Material Contracts in the ordinary course of business consistent with past practiceand that, individually or in the aggregate, are not material, (iiA) adopt a plan of complete or partial liquidationamend, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend modify or terminate any Material Contract in (excluding, for the avoidance of doubt, any material respect expiration or grant any release, waiver automatic extension or relinquishment renewal of any material rights under such Material Contract pursuant to its terms or entering into additional work orders pursuant to, and in accordance with the terms of, any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities Contract in the ordinary course of business consistent with past practicebusiness), (B) waive any material benefit or right under any Material Contract or (C) enter into any Contract that would constitute a Material Contract; (fx) make any loans, advances or capital contributions to, or guarantees for the benefit of, or any investments in, any other Person (other than any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each easePerson, other than as required by applicable Law (A) intercompany loans or capital contributions between the Company and any of its wholly-owned Subsidiaries, or between any such Subsidiaries and (B) the reimbursement of expenses of employees in the ordinary course of business; (ixi) adopt except (x) as required under the terms of any amendment Employee Benefit Plan to its certificate be set forth on Section ‎3.12(a) of incorporation the Company Disclosure Schedules or bylaws (y) in the ordinary course of business (it being understood and agreed, for the avoidance of doubt, that in no event shall the exception in this clause (y) be deemed or equivalent governing documentsconstrued as permitting any Group Company to take any action that is not permitted by any other provision of this Section 5.1(b)), (A) amend, modify, adopt, enter into or terminate any Employee Benefit Plan of any Group Company or any material benefit or compensation plan, policy, program or Contract that would be an Employee Benefit Plan if in effect as of the date of this Agreement, (B) increase the compensation or benefits payable to any current or former director, manager, officer, employee, or Contingent Worker of any Group Company earning annual compensation in excess of $150,000, or increase the aggregate annual compensation or benefits payable to any other current or former director, manager, officer, employee, or Contingent Worker of any Group Company to be greater than $150,000, (C) take any action to accelerate any payment, right to payment, or benefit, or the funding of any payment, right to payment or benefit, payable or to become payable to any current or former director, manager, officer, employee or Contingent Worker of any Group Company, (D) waive or release any material noncompetition, non-solicitation, no-hire, nondisclosure or other restrictive covenant obligation of any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company, (E) pay any special bonus or special remuneration to any director, officer or employee of any Group Company, (F) promise to do any of the foregoing (A) through (E), (G) terminate or furlough the employment of any director, officer, management-level or key employee of any Group Company, or (H) enter into a settlement agreement with any current or former director, officer, or employee of any Group Company; (jxii) grant make, change or revoke any entity Tax classification or other material election concerning Taxes, settle any material severance Tax claim or termination pay (assessment, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment, other than pursuant to a Plan) which will become due and payable on any such extension or after the Effective Time (other than as required by applicable Law or waiver that is obtained in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (kxiii) enter into any collective bargainingsettlement, works council conciliation or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in Contract the ordinary course performance of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated which would involve the payment by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date Group Companies in excess of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year$100,000, in the aggregate, $500,000)or that imposes, including or by its terms will impose at any longpoint in the future, any material, non-term debt monetary obligations on any Group Company; (xiv) authorize, recommend, propose or short-term announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving any Group Company; (except for short-term debt xv) change any Group Company’s methods of accounting in any material respect, other than changes that are (i) made in accordance with PCAOB standards, (ii) required by changes in applicable Law or IFRS, or (iii) required by such Group Company’s auditors; enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions; (xvi) make any Change of Control Payment that is not set forth on Section ‎3.2(f) of the Company Disclosure Schedules; (xvii) become a party to, establish, adopt, amend, commence participation in or enter into any collective bargaining or other labor union Contract; (xviii) fail to keep current and in full force and effect, or to comply in all material respects with the requirements of, any material Permit; (xix) create or incur any material Lien (other than Permitted Liens) that is not incurred in the ordinary course of business consistent with past practice to fund working capital requirements).on any of its assets; (nxx) except as set forth on Section 6.1(n) enter into any new material line of the Company Disclosure Letterbusiness or operations, settle (i) or discontinue any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof material line of business or (ii) any other Legal Proceedingmaterial business operations; or (oxxi) offerenter into any Contract to take, agree or commitcause to be taken, in writing or otherwise, to take any of the foregoing actionsactions set forth in this Section ‎6.1. Notwithstanding anything in this Section 6.1 or this Agreement to the foregoingcontrary, nothing set forth in this Agreement is intended to shall give ParentCCTS, directly or indirectly, the right to control or direct (a) the business or operations of the Company or its Subsidiaries at any time Group Companies prior to the Acceptance Time. Prior Closing or (b) any action taken, or omitted to be taken, by any Group Company to the Acceptance Timeextent such act or omission is reasonably determined by the Company to be necessary to comply with applicable Law in effect as of the date of this Agreement (which shall in no event be deemed to constitute a breach of this Section ‎6.1); provided, however, that (i) in the case of clause (b), the Company shall give CCTS prior written notice of any such act or omission to the extent reasonably practicable, which notice shall describe in reasonable detail the act or omission and its Subsidiaries the reason(s) that such act or omission is being taken, or omitted to be taken, pursuant to clause (b) and, in the event that it is not reasonably practicable for the Company to give the prior written notice described in this clause (i), the Company shall exerciseinstead give such written notice to CCTS promptly after such act or omission and (ii) in no event shall clause (b) be applicable to any act or omission of the type described in Section ‎6.1(b)(i), consistent with Section ‎6.1(b)(ii), Section ‎6.1(b)(iii), Section ‎6.1(b)(iv), Section ‎6.1(b)(vi), Section ‎6.1(b)(viii), Section ‎6.1(b)(xii) or Section ‎6.1(b)(xvii) (to the terms and conditions extent related to any of this Agreement, complete control and supervision over their own business and operationsthe foregoing).

Conduct of Business of the Company. (a) Except as described in Section 6.1 of the Company Disclosure Letter or as expressly provided for required by this AgreementAgreement or otherwise with the prior written consent of Parent, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or to the Effective Time, the Company will conduct will, and will cause each of its Subsidiaries to to, conduct its operations only in all material respects according to its the ordinary and usual course of business consistent with past practice, practice and the Company will use its reasonable best efforts, and will cause each of its Subsidiaries to use its commercially reasonable efforts best efforts, to preserve intact its the business organization of the Company and each of its Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the present goodwill of those having business relationships with those Persons it, including maintaining existing relationships with suppliers, distributors, customers, licensors, employees and others having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Company. (b) Without limiting the generality of the foregoing foregoing, and except as otherwise expressly provided for required by this Agreement, during Agreement or as set forth on Section 6.1 of the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Company Disclosure Schedule, the Company will not not, and will not permit any of its Subsidiaries to, during the period from the date of this Agreement to the Effective Time, without the prior written consent of Parent: (ai) adopt any amendment to its articles of incorporation or bylaws or comparable organizational documents or the Rights Agreement, except as set forth on Section 6.1(aexpressly contemplated by this Agreement; (ii) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of of, pledge, hypothecate, grant a security interest in or otherwise encumber any capital stock or other securities owned by it in any of its Subsidiaries; (iii) (A) issue, reissue or sell, or authorize the issuance, reissuance or sale of (1) shares of capital stock of any class, or securities convertible into or exchangeable forcapital stock of any class, or authorize any rights, warrants or propose the issuance, sale, grant of options to acquire any convertible securities or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securitiescapital stock, other than Company Shares issuable upon the issuance of Common Shares, pursuant to the exercise of the Company Options or Stock Options, vesting of Company RSU Awards Restricted Shares or settlement of Company RSUs, in each case, outstanding on the date hereof in accordance with their termsthe terms of such Company Stock Options, Company Restricted Shares or Company RSUs, as applicable, or (2) any other securities in respect of, in lieu of, or in substitution for, Common Shares outstanding on the date hereof or (B) make any other changes in its capital structure; (biv) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock, securities or property or any combination thereof) on in respect of any shares class or series of its capital stock (other than cash except for dividends paid to the Company or one of its wholly owned Subsidiaries by a any wholly owned Subsidiary of the Company with regard to its capital stock the Company or other equity interests)another wholly owned Subsidiary of the Company; (dv) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities other than the acquisition of stock by the Company in connection with (A) payment of income tax as provided in award agreements relating to Company Stock Options, Company Restricted Shares, or Company RSUs or (B) forfeiture of Company Restricted Shares; (vi) (iA) make increase the compensation or benefits payable or to become payable to its current or former directors, officers or employees (whether from the Company or any acquisition of its Subsidiaries), (B) pay or dispositionaward any payment or benefit not required by any existing Employee Benefit Arrangement or Employment Agreement to any officer, director or make any offer employee (including the granting of stock options, stock appreciation rights, restricted stock units, shares of restricted stock or agreement performance units pursuant to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale the Company Stock Plans or otherwise), (C) grant any severance or termination pay to any officer or director of the Company or its Subsidiaries, (D) grant any severance or termination pay to any employee who is not an officer, other than grants of severance or termination pay in one transaction the ordinary course of business consistent with past practice that are required by the terms of the Company’s Employee Benefit Arrangements (as such terms and arrangements existed as of May 26, 2007) to such employees whose employment is terminated prior to the Effective Time, (E) enter into any employment or severance agreement with, any series of related transactionsdirector, of any material business, assets or securities or any sale, lease, encumbrance officer or other disposition of assets or securities employee of the Company or any of its Subsidiaries or (F) establish, adopt, enter into, amend or waive any Personperformance or vesting criteria or accelerate vesting, exercisability or funding under any bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees of the Company or its Subsidiaries (any of the foregoing being an “Employee Benefit Arrangement”), except, in each case involving case, to the payment extent required by applicable Law or term of consideration any existing Employee Benefit Arrangement (as such terms and arrangements existed as of May 26, 2007) described in the Company Disclosure Schedule as specifically requiring such an action; (vii) mortgage, encumber, sell, transfer, lease, license or otherwise dispose of, or subject to any material Lien, (A) any assets or property (including consideration in the form of assumption of LiabilitiesIntellectual Property) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,0001,000,000 individually or, other than any acquisition(B) taking all such matters in the aggregate, dispositionassets or property (including Intellectual Property) or securities with a value of $2,000,000, salein each case, lease except pursuant to existing contracts or encumbrance commitments or the sale of assets related to the Company’s retail products and other retail activities goods in the ordinary course of business consistent with past practice, (ii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (eviii) acquire (whether by merger, consolidation, recapitalization, acquisition of stock or assets or any other form of transaction) any corporation, partnership or other business organization or division thereof; (ix) (A) incur, assume or pre-pay any Indebtedness, (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 (including any Indebtedness), (C) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; practice and in accordance with their terms, (fD) make any loans, advances or capital contributions to, or investments in, any other Person Person, except for loans, advances, capital contributions or investments between any wholly owned Subsidiary of the Company and the Company or another wholly owned Subsidiary of the Company, (E) vary the Company’s payment, collection or inventory practices in any material respect from the Company’s past practices or (F) cancel or forgive any Indebtedness owed to the Company or any of its Subsidiaries; (A) other than in the ordinary course of business consistent with past practice, terminate, modify, renew or waive any material provision of any Company Material Contract other than normal renewals of such Company Material Contracts without materially adverse changes, additions or deletions of terms or (B) enter into or renew any agreement, contract, lease, license or other binding obligation of the Company or its Subsidiaries (i) containing (1) any limitation or restriction on the ability of the Company or its Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Parent or its Subsidiaries, to engage in any type of activity or business, (2) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of the Company or its Subsidiaries or, following consummation of the transactions contemplated hereby, all or any portion of the business of Parent or its Subsidiaries, is or would be conducted or (3) any limit or restriction on the ability of the Company or its Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Parent or its Subsidiaries, to solicit customers or employees, (ii) that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated by this Agreement, (iii) that involves or would reasonably be expected to involve payments in excess of $1,000,000 annually or $2,000,000 in the aggregate over the term of the contract and that is not terminable within thirty (30) days of the Effective Time without payment by Parent or its Subsidiaries or (iv) that, if effective as of the date hereof, would have been listed on Section 4.9(a) of the Company Disclosure Schedule as a Company Material Contract; (xi) alter in any material respect, or enter into any commitment to alter in any material respect, any interest material to the Company and its Subsidiaries, taken as a whole, in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any equity or ownership interest on the date hereof (other than any direct interest arising from any foreclosure, settlement in lieu of foreclosure or indirect wholly owned Subsidiaries troubled loan or debt restructuring in the ordinary course of the Company business consistent with past practice); (xii) agree or in connection consent to any material agreement or material modifications of existing agreements with the Company’s retail products and any Governmental Entity (other retail activities than customer contracts in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (ixiii) change permit any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind insurance policy naming the Company or any of its Subsidiaries as a beneficiary or a loss payable payee to lapse, be canceled or expire unless a new policy with substantially identical coverage is in effect as of the Company’s Subsidiaries after the Effective Datedate of lapse, cancellation or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of businessexpiration; (ixiv) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice practice, make or change any material Tax elections unless required by applicable Law, file any material amended Tax Return, enter into any material closing agreement with respect to fund working capital requirements).Taxes, settle or compromise any material liability with respect to Taxes, agree to any material adjustment of any Tax attribute, file any material claim for a refund of Taxes or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment; (nxv) change in any material respect its Tax or financial accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, in each case, in effect on the date hereof, except as set forth on Section 6.1(nrequired by changes in GAAP or regulatory financial accounting principles; (xvi) change in any material respects its investment or risk management or other similar policies (including with respect to hedging) of the Company Disclosure Letter, settle or any of its Subsidiaries; (ixvii) take any action that is intended or is reasonably likely to result in (a) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof of its representations or (ii) any other Legal Proceeding; or (o) offer, agree or commit, in writing or otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, nothing warranties set forth in this Agreement is intended to give Parent, directly being or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries becoming untrue in any respect at any time prior to the Acceptance Time. Prior Effective Time in any manner that would be reasonably likely to cause the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions set forth in Annex I or Article Seven to not be satisfied or (b) a violation of any provision of this Agreement, complete control except, in each of the foregoing cases, as may be required by applicable Law; (xviii) incur any capital expenditures or enter into any agreement obligating the Company or its Subsidiaries to provide for future capital expenditures, except in a manner consistent with the capital expenditures budgeted for in the 2008 Budget previously made available to Parent (provided, however, that in no event shall the aggregate amount of such capital expenditures exceed $5,000,000 as measured from the date of this Agreement to the Effective Time); (xix) waive, release, assign, initiate, pay, discharge, settle or compromise any pending or threatened claim, action, litigation, arbitration or proceeding other than (A) in the ordinary course of business consistent with past practice, (B) for solely money damages not in excess of $25,000 individually or $50,000 in the aggregate and supervision over their own business and operations(C) as would not be reasonably likely to have any adverse impact on any other pending or potential claims, actions, litigation, arbitration or proceedings; (xx) change its cash management policies, including accelerating the collection of accounts receivable or deferring the payment of accounts payable; or (xxi) agree to take, make any commitment to take, or adopt any resolutions of its board of directors in support of, any of the actions prohibited by this Section 6.1.

Conduct of Business of the Company. Except as described in Section 6.1 of the Company Disclosure Letter or as expressly provided for contemplated by this Agreement, during the period from the date of this Agreement and continuing until to the earlier date on which a majority of the termination Company's directors are designees of this Agreement Parent or the Effective TimeSub, the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business and consistent with past practice, and the Company will use and will cause each of its Subsidiaries to use its commercially reasonable best efforts to preserve intact its business organization organization, to keep available the services of its current officers and employees and to preserve the present goodwill of and maintain satisfactory relationships with those Persons persons and entities having business relationships with the Company and its Subsidiaries, and the Company will promptly advise Parent and Sub in writing of any material change in the Company's or any of its Subsidiaries; provided' condition (financial or otherwise), howeverproperties, that no action by the Company customer or its Subsidiaries with respect to matters addressed by any provision supplier relationships, assets, liabilities, business prospects or results of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentenceoperations. Without limiting the generality of the foregoing and except as otherwise expressly provided for in or contemplated by this AgreementAgreement or as set forth in the Disclosure Letter, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Parent, the Company will not and will not permit any of its Subsidiaries to: (ai) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transferpledge of (A) any Company Securities (including any Existing Stock Option) or Subsidiary Securities, or disposition grant or encumbrance of accelerate any shares of right to convert or securities convertible into or exchangeable for, exchange any Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Existing Stock Options or vesting of Company RSU Awards outstanding on the date hereof or (B) any other securities in accordance with their termsrespect of, in lieu of or in substitution for Shares outstanding on the date hereof; (bii) acquire or redeem or offer to otherwise acquire or redeem, directly or indirectly, or amend any Company Securities or Subsidiary Securities, except to the extent provided in the terms of any Company Stock Plan; (ciii) split, combine, subdivide, combine or reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property stock or any combination thereofproperty) on any shares of its capital stock (other than cash dividends paid to the Company or one of by its wholly wholly-owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its their capital stock or other equity interestsstock); (div) except as set forth in Section 4.16 of the Disclosure Letter, (iA) make any acquisition or disposition, or offer to make any offer or agreement to acquire or dispose acquisition, by means of a merger, consolidation, recapitalization, purchase, sale merger or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities securities, or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Personsecurities, in each case involving the payment or receipt of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more more, except for purchases of inventory made in the ordinary course of business and consistent with past practice, or the disposition (B) enter into or amend any Material Contract or grant any release or relinquishment of assets any rights under any Material Contract; (v) incur or securities with a fair market value in excess of $100,000, other than assume any acquisition, disposition, sale, lease long-term debt or encumbrance of assets related to short-term debt except for debt incurred under the Company’s retail products and other retail activities 's existing Revolving Credit Facility in the ordinary course of business consistent with past practice, (ii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (evi) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 person except any direct or indirect wholly wholly-owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; (fvii) make any loans, advances or capital contributions to, or investments in, any other Person person (other than any direct or indirect wholly wholly-owned Subsidiaries of the Company Company); (viii) change any of the accounting principles or practices used by it; (ix) make any Tax election or settle or compromise any material federal, state or local income Tax liability; (x) propose or adopt any amendments to its Certificate of Incorporation or Bylaws (or similar documents); (xi) except as set forth in Section 6.01 of the Disclosure Letter, grant any stock-related, performance or similar awards or bonuses; (xii) forgive any loans to employees, officers or directors or any of their respective affiliates or associates; (xiii) except as set forth in Section 6.01 of the Disclosure Letter, enter into any new, or amend any existing, employment, severance, consulting or salary continuation agreements with any officers, directors or employees, or grant any increases in the compensation or benefits to officers, directors and employees (other than normal increases to persons who are not officers or directors in the ordinary course of business consistent with past practices and that, in the aggregate, do not result in a material increase in benefits or compensation expense of the Company); (xiv) make any deposits or contributions of cash or other property to fund or in connection with any other way secure the Company’s retail products and payment of compensation or benefits under the Plans or agreements subject to the Plans, other retail activities than in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (vxv) enter into any settlement or compromise of any material Tax liabilityinto, agree to any adjustment of any material Tax attributeamend, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into extend any collective bargaining, works council bargaining or similar other labor agreement; (lxvi) except as set forth in Section 6.01 of the Disclosure Letter, adopt, enter into, materially amend or terminate any material Plan (or any other than as required by applicable Lawbonus, to reflect changes in severance, insurance pension or other employee benefit plan administration, or in the ordinary course of business)arrangement; (mxvii) incur settle or agree to settle any capital expenditure suit, action, claim, proceeding or investigation (including any obligationssuit, Liabilities action, claim, proceeding or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available investigation relating to Parent prior to the date of this Agreement and or the transactions contemplated hereby) or pay, discharge or satisfy or agree to pay, discharge or satisfy any claim, liability or obligation (iiabsolute or accrued, asserted or unasserted, contingent or otherwise) any unbudgeted capital expenditure other than the payment, discharge or satisfaction of liabilities reflected or reserved against in an amount not to exceed, in any year, full in the aggregatefinancial statements as at April 30, $500,000), including any long-term debt 1998 or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice subsequent to fund working capital requirements). (n) except as set forth on Section 6.1(n) of the Company Disclosure LetterApril 30, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceeding1998; or (oxviii) offer, agree or commit, in writing or otherwise, otherwise to take any of the foregoing actions. Notwithstanding the foregoing, nothing actions or any action which would make any representation or warranty in this Agreement is intended to give Parent, directly untrue or indirectly, the right to control or direct the business or operations incorrect as of the Company date when made or its Subsidiaries at as of a future date or would result in any time prior to of the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationsset forth in Exhibit A not being satisfied.

Conduct of Business of the Company. Except as described in expressly contemplated by this Agreement or Section 6.1 5.01 of the Company Disclosure Letter Schedule, required by applicable Law or as expressly provided for may be agreed in writing by this AgreementParent (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or to the Effective Time, the Company will conduct will, and will cause each of its the Company Subsidiaries to, use commercially reasonable efforts to conduct its operations in all material respects according to its ordinary and usual course of business and consistent with past practice, and the Company will use and will cause each of its the Company Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization organization, to keep available the services of its current officers and employees and to preserve the present goodwill of and maintain satisfactory relationships with those Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by and the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentenceSubsidiaries. Without limiting the generality of the foregoing and except as otherwise expressly provided for in or contemplated by this AgreementAgreement or Section 5.01 of the Company Disclosure Schedule or required by applicable Law, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditionedwithheld, withheld conditioned or delayed), the Company will not and will not permit any of its the Company Subsidiaries to: (a) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, sell or grant options or rights (excluding any options or rights under the Company’s Employee Stock Purchase Plan) to purchase, pledge, deliver, transfer, dispose of pledge or encumber any shares of or securities convertible into or exchangeable forreceive, or authorize or propose the issuance, sale, sale or grant of options or rights to purchase purchase, pledge or pledge, deliver, transfer, or disposition or encumbrance of receive any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company the issuance of Shares issuable upon exercise of the Company Stock Options or vesting outstanding as of Company RSU Awards outstanding on the date hereof in accordance with their termsof this Agreement or upon the conversion of Outstanding Preferred Shares; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, combine or reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property stock or any combination thereofproperty) on any shares of its capital stock (stock, other than cash dividends paid to the Company or one of its wholly any wholly-owned Subsidiaries Company Subsidiary by a wholly owned any Company Subsidiary or other than dividends paid pursuant to the terms of the Company with regard to its capital stock or other equity interests)Preferred Stock which shall be paid in cash; (d) take any action which would (i) cause an adjustment under the Company’s Certificate of Incorporation to the “Stated Amount,” the “Stated Amount Conversion Price,” the “Cash Dividends Conversion Price,” the “Series B Stated Amount,” the “Series B Stated Amount Conversion Price” or the “Series B Cash Dividends Conversion Price” (all as defined in the Company’s Certificate of Incorporation) from the numbers set forth in Section 3.02(b) or would cause the “Deferred Dividend Due Date” (as defined in the Company’s Certificate of Incorporation) to occur before the Effective Time, or (ii) cause the “Stock Price” (as defined in the 2003 Incentive Plan, effective May 12, 2003) as of the Closing Date to be less than $35.41; (e) (i) make any acquisition or disposition, or offer to make any offer or agreement to acquire or dispose acquisition, by means of a merger, consolidation, recapitalization, purchase, sale merger or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Person, in each case involving the payment or receipt of consideration of $2,000,000 or more (including consideration inclusive of assumed debt), individually or in the form aggregate for all such acquisitions or sales, leases, encumbrances or other dispositions, as the case may be, except for purchases or sales of assumption supplies, equipment and inventory made in the ordinary course of Liabilitiesbusiness and consistent with past practice or (ii) enter into a Material Contract or amend or extend any Material Contract or grant any release or relinquishment of $100,000 any rights under any Material Contract; (f) incur or more or assume any Indebtedness except for short-term Indebtedness incurred under the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities Company Credit Agreement in the ordinary course of business consistent with past practice, (ii) adopt a plan of complete practice or partial liquidation, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract except in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, amounts not to exceed $300,000 in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated therebyaggregate; (eg) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of with respect to the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practicewholly-owned Company Subsidiaries; (fh) make any loans, advances or capital contributions to, or investments in, any other Person (other than any direct or indirect wholly wholly-owned Company Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (i) change any of the accounting methods, principles or practices used by it except as required by Law or U.S. GAAP; (j) make any material Tax election (except as required by Law) or, except as is consistent with past practices, settle or compromise any material Federal, state or local income Tax liability; (k) propose or adopt any amendments to its Certificate of Incorporation or Bylaws (or similar documents); (l) make any deposits or contributions of cash or other property to or take any other action to fund or in any other way secure the payment of compensation or benefits under any Plan, except as required by Law or the terms of the Company Plans currently in effect; (m) incur except as required by applicable Law or pursuant to any capital expenditure collective bargaining or other labor agreement currently in effect, enter into, amend, or extend any obligationscollective bargaining or other labor agreement; (n) settle or agree to settle any suit, Liabilities action, claim, proceeding or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior investigation that is material to the date of Company (including any suit, action, claim, proceeding or investigation relating to this Agreement and or the transactions contemplated hereby) or pay, discharge or satisfy or agree to pay, discharge or satisfy any claim, liability or obligation (iiabsolute or accrued, asserted or unasserted, contingent or otherwise) any unbudgeted capital expenditure in an amount not other than the payment, discharge or satisfaction of liabilities to exceed, in any year, the extent reflected or reserved against in the aggregatefinancial statements as at February 28, $500,000)2005, including any long-term debt or short-term (except for short-term debt payable with insurance or incurred in the ordinary course of business consistent with past practice subsequent to fund working capital requirements).that date; (no) except as specifically permitted by Section 6.02, take any action that would result or is reasonably likely to result in any of the conditions to the Merger set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal ProceedingArticle VII not being satisfied; or (op) offer, agree or commit, in writing or otherwise, otherwise to take any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

Conduct of Business of the Company. (a) Except as described in Section 6.1 of the Company Disclosure Letter or as expressly provided for required by this AgreementAgreement or required by applicable Law or otherwise with the prior written consent of Parent, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or to the Effective Time, the Company will conduct will, and will cause each of its Subsidiaries to to, conduct its operations only in all material respects according to its the ordinary and usual course of business consistent with past practice, practice and the Company will use its reasonable best efforts, and will cause each of its Subsidiaries to use its commercially reasonable efforts best efforts, to preserve intact its the business organization of the Company and each of its Subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the present good will of those having business relationships with those Persons it, including maintaining satisfactory relationships with suppliers, distributors, customers, licensors and others having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Company. (b) Without limiting the generality of the foregoing foregoing, and except as otherwise expressly provided for required by this Agreement, during Agreement or as set forth on Section 6.1 of the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Company Disclosure Schedule, the Company will not not, and will not permit any of its Subsidiaries to, prior to the Effective Time, without the prior written consent of Parent: (ai) except as set forth on Section 6.1(aadopt any amendment to its certificate of incorporation or by-laws or comparable organizational documents or the Rights Agreement; (ii) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of of, pledge, hypothecate, grant a security interest in or otherwise encumber any capital stock or other securities owned by it in any of its Subsidiaries; (iii) (A) issue, reissue or sell, or authorize the issuance, reissuance or sale of (1) shares of capital stock of any class, or securities convertible into or exchangeable forcapital stock of any class, or authorize any rights, warrants or propose the issuance, sale, grant of options to acquire any convertible securities or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securitiescapital stock, other than Company Shares issuable upon the issuance of Common Shares, pursuant to the exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their termsthe terms of such Options or pursuant to the exercise of rights to purchase Common Shares under the ESPP in accordance with its terms and the provisions of this Agreement or (2) any other securities in respect of, in lieu of, or in substitution for, Common Shares outstanding on the date hereof, or (B) make any other changes in its capital structure; (biv) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock, securities or property or any combination thereof) on in respect of any shares class or series of its capital stock (other than cash except for dividends paid to the Company or one of its wholly owned Subsidiaries by a any wholly owned Subsidiary of the Company with regard to its capital stock the Company or other equity interests)another wholly owned Subsidiary of the Company; (dv) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock, or any of its other securities; (vi) (iA) make any acquisition increase the compensation or dispositionbenefits payable or to become payable to its current or former directors, officers or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of employees (whether from the Company or any of its Subsidiaries Subsidiaries), (B) pay or award any Personpayment or benefit not required by any existing plan or arrangement to any officer, in each case involving the payment of consideration director or employee (including consideration in the form granting of assumption stock options, stock appreciation rights, shares of Liabilitiesrestricted stock or performance units pursuant to the Stock Plans or otherwise), (C) grant any severance or termination pay to any officer or director of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000Company, or, other than any acquisition, disposition, sale, lease grants of severance or encumbrance termination pay in the ordinary course of assets related business consistent with past practice to the Company’s retail products and other retail activities employees whose employment is terminated in the ordinary course of business consistent with past practice, or other employee of the Company or any of its Subsidiaries (ii) adopt a plan of complete or partial liquidationother than as required by existing agreements), dissolution, recapitalization or restructuring, or (iiiD) enter into a Material Contract any employment or amend severance agreement with, any director, officer or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation other employee of the Merger Company or any of its Subsidiaries or (E) establish, adopt, enter into, amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the transactions contemplated therebybenefit or welfare of any directors, officers or current or former employees of the Company or its Subsidiaries (any of the foregoing being an “Employee Benefit Arrangement”), except, in each case, (1) to the extent required by applicable law or regulation or existing term of any such Employee Benefit Arrangement described in the Company Disclosure Schedule, and (2) arrangements for newly hired individuals that are in the ordinary course consistent with existing policies and practice; (evii) mortgage, encumber, sell, transfer, lease, license or otherwise dispose of, or subject to any material Lien, (A) any assets or property (including material Intellectual Property) or securities with a value of $500,000 individually or, (B) taking all such matters in the aggregate, assets or property (including material Intellectual Property) or securities with a value of $3,000,000, in each case, except pursuant to existing contracts or commitments or the sale of goods in the ordinary course of business consistent with past practice; (viii) acquire (whether by merger, consolidation, recapitalization, acquisition of stock or assets or any other form of transaction) any corporation, partnership or other business organization or division thereof or, except in the ordinary course of business consistent with past practice or in accordance with the 2006 budget plan previously provided to Parent, (A) any assets with a value of $500,000 individually or, (B) taking all such acquisitions in the aggregate, assets with a value of $3,000,000; (ix) (A) incur, assume or pre-pay any Indebtedness, (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 (including any Indebtedness), (C) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; practice and in accordance with their terms, (fD) make any loans, advances or capital contributions to, or investments in, any other Person (other than Person, except for loans, advances, capital contributions or investments between any direct or indirect wholly owned Subsidiaries Subsidiary of the Company and the Company or in connection with another wholly owned Subsidiary of the Company, (E) vary the Company’s retail products and payment, collection or inventory practices in any material respect from the Company’s past practices or (F) cancel or forgive any Indebtedness owed to the Company or any of its Subsidiaries; (A) other retail activities than in the ordinary course of business consistent with past practice, terminate, modify, renew or waive any material provision of any Company Material Contract other than normal renewals of such Company Material Contracts without materially adverse changes, additions or deletions of terms, or (B) enter into or renew any agreement, contract, lease, license or other binding obligation of the Company or its Subsidiaries (i) containing (1) any limitation or restriction on the ability of the Company or its Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Parent or its Subsidiaries, to engage in any type of activity or business, (2) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of the Company or its Subsidiaries or, following consummation of the transactions contemplated hereby, all or any portion of the business of Parent or its Subsidiaries, is or would be conducted, or (3) any limit or restriction on the ability of the Company or its Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Parent or its Subsidiaries, to solicit customers or employees, (ii) that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated by this Agreement, (iii) that involves or would reasonably be expected to involve payments in excess of $100,000500,000 annually or $5,000,000 in the aggregate over the term of the contract and that is not terminable within thirty (30) days of the Effective Time without payment by Parent or its Subsidiaries, or (iv) that, if effective as of the date hereof, would have been listed on Section 4.9(a) of the Company Disclosure Schedule as a Company Material Contract; (gxi) alter in any material respect, or enter into any commitment to alter in any material respect, any interest material to the Company and its Subsidiaries, taken as a whole, in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any equity or ownership interest on the date hereof (other than any interest arising from any foreclosure, settlement in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with past practice); (xii) agree or consent to any material agreement or material modifications of existing agreements with any Governmental Entity except as required by Law; (xiii) permit any insurance policy naming the Company or any of its Subsidiaries as a beneficiary or a loss payable payee to lapse, be canceled or expire unless a new policy with substantially identical coverage is in effect as of the date of lapse, cancellation or expiration; (xiv) except in the ordinary course of business consistent with past practice, make or change any Tax elections (unless required by applicable Law), file any amended Tax Return, enter into any closing agreement, settle or compromise any material liability with respect to Taxes, agree to any adjustment of any Tax attribute, file any claim for a refund of Taxes or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment; (xv) change in any material respect its Tax or financial accounting methodsmethods (or underlying assumptions), principles or practices used by itaffecting its assets, liabilities or business, in each case, in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles; (xvi) change in any material respects its investment or risk management or other similar policies (including with respect to hedging) of the Company or any of its Subsidiaries; (xvii) take any action that is intended or is reasonably likely to result in (a) any of its representations or warranties set forth in this Agreement being or becoming untrue in any respect at any time prior to the Effective Time in any manner that would be reasonably likely to cause the conditions set forth in Annex I hereto or Article Seven of this Agreement to not be satisfied, or (b) a violation of any provision of this Agreement, except, in each of the foregoing cases, as may be required by applicable Law; (ixviii) change incur any annual Tax accounting period, (ii) make, change capital expenditures or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind obligating the Company or any of its Subsidiaries to provide for future capital expenditures, except in a manner consistent with the Company’s Subsidiaries after capital expenditures budgeted for in fiscal year 2006 on the Effective Date2006 budget plan previously provided to Parent (provided, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Returnhowever, that in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documentsno event shall capital expenditures exceed $2,000,000 per month); (jxix) grant pay, discharge, settle or compromise any material severance claim, action, litigation, arbitration or termination pay (proceeding, other than pursuant to a Plan) which will become due and payable on any payment, discharge, settlement or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred compromise in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) that involves solely money damages not in excess of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed $100,000 individually or $500,000 in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceedingaggregate; or (oxx) offeragree to take, agree make any commitment to take, or commitadopt any resolutions of its board of directors in support of, in writing or otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, nothing in actions prohibited by this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationsSection 6.1.

Conduct of Business of the Company. Except as described in Section 6.1 of the Company Disclosure Letter or as expressly provided for required by this AgreementAgreement or with the prior written consent of Parent, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or to the Effective Time, the Company will conduct and will cause each of its the Subsidiaries to conduct its operations only in all material respects according to its the ordinary and usual course of business consistent with past practice, practice and the Company will use its best efforts and will cause each of its the Subsidiaries to use its commercially reasonable efforts best efforts, to preserve intact its the business organization of the Company and each of the Subsidiaries, to keep available the services of its and their present officers and key employees and to preserve the present relationships with goodwill of those Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentenceit. Without limiting the generality of to the foregoing foregoing, and except as otherwise expressly provided for required by this AgreementAgreement or as set forth in Section 6.01 of the Company Disclosure Statement, during the period specified in Company will not, and will not permit any of the preceding sentenceSubsidiaries to, prior to the Effective Time, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries to: Parent: (a) adopt any amendment to its charter or by-laws or comparable organizational documents; (b) except as set forth on Section 6.1(a) for issuances of capital stock of the Company Disclosure LetterSubsidiaries to the Company, or to a wholly-owned Subsidiary of the Company, issue, sell, grant options reissue or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, sell or authorize or propose the issuance, sale, grant reissuance or sale of options or rights to purchase or pledge, deliver, transferadditional shares of capital stock of any class, or disposition or encumbrance shares convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securitiescapital stock, other than Company Shares issuable upon exercise the issuance of the Company Shares, pursuant to Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire of this Agreement or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except pursuant to the extent provided in the terms of any Company Stock Plan; Option Agreement; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock, shares or property or any combination thereof) on in respect of any class or series of its capital stock other than between any of the Company and any Subsidiary which is wholly-owned by the Company; (d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock (other than cash dividends paid to the Company stock, or one any of its wholly owned Subsidiaries by a wholly owned Subsidiary other shares; (e) except for (A) increases in salary, wages and benefits of the Company with regard to its capital stock non-executive officers or other equity interests); (d) (i) make any acquisition or disposition, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities employees of the Company or any of its the Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice, (iiB) adopt a plan of complete or partial liquidationincreases in salary, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected wages and benefits granted to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries officers and employees of the Company or the Subsidiaries in connection conjunction with the Company’s retail products and new hires, promotions or other retail activities changes in job status in the ordinary course of business consistent with past practice; (f) make any loans, advances or capital contributions to, or investments in(C) increases in salary, any other Person (other than any direct or indirect wholly owned Subsidiaries wages and benefits to employees of the Company or in connection with the Company’s retail products and other retail activities Subsidiaries pursuant to collective bargaining agreements entered into in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting periodincrease the compensation or fringe benefits payable or to become payable to its directors, officers or key employees (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind whether from the Company or any of the Company’s Subsidiaries after the Effective DateSubsidiaries), or (viiii) give pay any benefit not required by any existing plan or request arrangement (including, without limitation, the granting of stock options, stock appreciation rights, shares of restricted stock or performance units), or (iii) grant any waiver severance or extension termination pay to (except pursuant to existing agreements, plans or policies and as required by such agreements, plans or polices), or (iv) enter into any employment or severance agreement with, any director, officer or other key employee of a statute the Company or any of limitation with respect to a material Tax Returnthe Subsidiaries or (iv) establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock or Employee Plans/Agreements for the benefit or welfare of any directors, officers or current or former employees, except in each ease, other than as case to the extent required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceedingregulation; or (o) offer, agree or commit, in writing or otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.- 19 - 20

Conduct of Business of the Company. (a) Except as described for matters set forth in Section 6.1 5.01(a) of the Company Disclosure Letter or as otherwise required or expressly provided for contemplated by this AgreementAgreement or required by applicable Law or with the prior written consent of Parent (such consent not to be unreasonably withheld, during the period delayed or conditioned), from the date of this Agreement and continuing until to the earlier of the termination of this Agreement or and the Effective Time, (i) the Company will conduct shall, and will shall cause each of its Subsidiaries to to, conduct its their respective businesses and operations in all material respects according to its the ordinary and usual course of business consistent with past practicepractice in all material respects, and (ii) the Company will use shall, and will shall cause each of its Subsidiaries to to, use its commercially reasonable efforts to preserve intact its their respective current business organization organizations and commercially reasonable efforts to preserve the present relationships maintain their relations and goodwill with those all material suppliers, customers, landlords, creditors, employees and other Persons having material business relationships with the Company or any of its Subsidiaries; providedSubsidiary thereof. In addition, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without without limiting the generality of the foregoing and foregoing, except for matters set forth in Section 5.01(a) of the Company Disclosure Letter or as otherwise expressly provided for contemplated by this AgreementAgreement or required by applicable Law, during from the period specified in date of this Agreement to the preceding sentenceearlier of the termination of this Agreement and the Effective Time, the Company shall not, and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of Parent (which such consent shall not to be unreasonably withheld, delayed or conditioned): (i) (A) declare, withheld set aside or delayed)pay any dividends on, the Company will not and will not permit or make any other distributions (whether in cash, stock or property or any combination thereof) in respect of, any of its Subsidiaries to:capital stock or other Equity Interests, (B) split, combine or reclassify any of its capital stock or other Equity Interests, or (C) directly or indirectly redeem, repurchase or otherwise acquire any Equity Interests in the Company or any Subsidiary of the Company, except for (1) acquisitions of shares of Company Common Stock in connection with the surrender of shares of Company Common Stock by holders of Company Stock Options in order to pay the exercise price of such Company Stock Options, (2) the withholding of shares of Company Common Stock to satisfy Tax obligations with respect to Company Equity Awards, or (3) the acquisition by the Company of Company Equity Awards that are outstanding as of the date hereof in connection with the forfeiture of such awards in accordance with their respective terms in effect at such time; (aii) issue, sell, register to issue or sell, encumber, subject to any Lien, grant, or amend any terms of, any of its capital stock or Equity Interests or make any change in or to the terms of any outstanding shares of capital stock or other Equity Interests, other than the issuance of shares of Company Common Stock upon the exercise of Company Stock Options, the settlement of Company RSUs or Company PSUs or vesting of Company Restricted Shares, in each case, only to the extent outstanding as of, and pursuant to the respective vesting and settlement terms applicable thereto, as of, the date of this Agreement; (iii) amend the Company Charter or Company Bylaws or amend in any material respect the certificate of incorporation, bylaws or other comparable organizational documents of any Subsidiary of the Company; (iv) propose or adopt a plan of, or effect any, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Subsidiary thereof, other than the Merger; (v) except as required by the terms of any Company Benefit Plan set forth on in Section 6.1(a3.10(a) of the Company Disclosure Letter, issue(A) increase the compensation (whether base salary or wages, sell, grant options bonus opportunity or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance otherwise) of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary SecuritiesService Provider, other than Company Shares issuable upon exercise increases in the ordinary course of business consistent with past practice to the Company Options base compensation for any such individual who is not a Senior Employee by an amount not exceeding (x) for any such individual who is an hourly employee or vesting whose base salary is less than $70,000, 10% of Company RSU Awards outstanding his or her base compensation (as in effect on the date hereof hereof) and (y) for any other such individual, 3% of his or her base compensation (as in accordance with their terms; effect on the date hereof), in each case, so long as the aggregate effect of all such increases, on a quarterly basis, does not exceed $300,000; (bB) acquire accelerate the vesting, payment or redeem provision of any compensation or offer to acquire or redeem, directly or indirectlybenefit under any Company Benefit Plan, or amend any Company SecuritiesContract or arrangement, except to the extent provided including any award or grant agreement in the terms respect of any Company Stock Options, Company RSUs, Company PSUs or Restricted Shares; (C) adopt, enter into, terminate or materially amend any Company Benefit Plan (or any arrangement which if in existence as of the date hereof would constitute a Company Benefit Plan; , as the case may be), other than (c1) splitannual renewals of benefit plans in the ordinary course of business consistent with past practices, combine(2) in connection with the actions contemplated by Section 2.03(h), subdivideor (3) offer letters entered into in the ordinary course of business and consistent with past practice that are in substantially the form as a form offer letter provided to Parent prior to the date hereof, reclassify or, with respect to individuals located outside of the United States, employment contracts that do not provide for severance benefits beyond those required by applicable law, in either case, only to the extent entered into with individuals who are hired in accordance with Section 5.01(a)(vi)(B); (D) fund any payments or otherwise amend the terms of benefits that are payable or to be provided under any shares of its capital stock or declare, set aside, Company Benefit Plan; (E) make or pay forgive any dividend or other distribution (whether in cash, stock, property or loan to any combination thereof) on any shares of its capital stock Company Service Provider (other than cash dividends paid routine travel advances issued in the ordinary course of business); or (F) without limitation of the foregoing, commit to pay any new severance benefits or increase any existing severance benefits (in each case, other than as may be required by applicable Law), or grant any change in control, retention, or transaction bonuses. (vi) (A) terminate the employment of any employee of the Company or one of its wholly owned Subsidiaries by a wholly owned any Subsidiary of the Company with regard an annual base salary in excess of $175,000 (a “Senior Employee”), other than due to its capital stock such individual’s death, disability or for cause (each as determined by the Company in the ordinary course of business consistent with past practices and the terms of relevant Company Benefit Plans or PEO Plans); (B) hire any individual who would be a Senior Employee, or promote any employee to the level of Senior Employee; (C) engage any Company Service Provider who is not an employee with annual base compensation in excess of $175,000; (D) voluntarily recognize or certify any labor union, works council, bargaining representative, or any other similar organization as the bargaining representative for any Company Service Provider; (E) implement or announce any employee layoffs, furloughs, reductions in force, reductions in compensation, hour or benefits, work schedule changes or similar actions that trigger the Worker Adjustment and Retraining Notification Act or any similar state law; or (F) waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other equity interestsrestrictive covenant obligation of any Company Service Provider (other than in connection with changes in applicable Law); (dvii) purchase or acquire all or a material portion of the assets, properties, rights or Equity Interests of or in any Person or division thereof (i) make any acquisition or dispositionincluding by license, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale consolidation or otherwise), other than the purchase or acquisition of supplies, inventory, merchandise, Intellectual Property rights or products (A) in one transaction the ordinary course of business consistent with past practice or any series (B) the value or purchase price of related transactionswhich would not exceed $1,500,000, of any material business, assets individually or securities or any salein the aggregate; (viii) assign, lease, encumbrance license, encumber, pledge, sell or other disposition otherwise dispose of assets (whether by license, merger, consolidation or securities otherwise) all or any material portion of the assets, rights or properties of the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration Subsidiary thereof (including consideration the capital stock or Equity Interests in any Subsidiary of the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000Company), other than any acquisitionsales, disposition, sale, lease dispositions or encumbrance of assets related to the Company’s retail products and other retail activities non-exclusive licensing (A) in the ordinary course of business consistent with past practice, (iiB) adopt a plan pursuant to existing Contracts that, if required pursuant to the terms of complete or partial liquidationthis Agreement, dissolution, recapitalization or restructuringare set forth in the applicable section of the Company Disclosure Letter, or (iiiC) with a value or purchase price of less than $1,500,000, individually or in the aggregate; (ix) (A) incur, assume, guarantee, or otherwise become liable for any, or amend or modify the terms or conditions of, any indebtedness for borrowed money (or any interest rate or other hedging Contracts or arrangements entered into in connection therewith) or issue or sell any debt securities, other than (x) solely between any of the Company and any of its wholly owned Subsidiaries or between any of such wholly owned Subsidiaries, (y) performance bonds and surety bonds entered into in the ordinary course of business consistent with past practice and in a face or exposure amount that does not exceed, in the aggregate, $1,500,000, or (z) borrowings incurred under the revolving credit facility contained in the Credit Agreement as in effect as of the date hereof in an amount not in excess of $2,500,000; or (B) make any pledge of or permit any of its properties, assets or rights to become subject to any material Lien other than Permitted Liens; (x) (A) materially modify, materially amend, renew, extend or terminate (other than any expiration in accordance with existing terms) or waive or release any rights under any Material Contract or (B) enter into any Contract that would be a Material Contract if in effect on the date of this Agreement, in each case, other than any modification, renewal, extension, termination, waiver, release or entry into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; ; provided, that neither the Company nor any Subsidiary thereof shall modify, amend, renew, extend, terminate or enter into any Material Contract (for any Contract that would constitute a Material Contract if in effect on the date hereof) make if the effect thereof would be to (1) impose any loans, advances material restrictions on the right or capital contributions toability of the Company or any Subsidiary thereof to engage in any line of business or compete with, or investments inprovide services to, any other Person or in any geographic area, (other than 2) grant any direct exclusive rights to license, market, sell or indirect wholly owned Subsidiaries deliver any material product, service or Intellectual Property of the Company or any Subsidiary thereof, (3) require the Company or any Subsidiary thereof to exclusively or predominantly purchase any material inventory, products, or services from such Person, (4) grant any “most favored nation” or similar provision in favor of the other party or a right of first refusal, first offer or first negotiation binding upon the Company or any Subsidiary thereof that, in each case, is material to the Company or (5) impose minimum purchase obligations on the Company or any Subsidiary thereof in excess of $250,000 annually in respect of any such Contract or $1,000,000 in the aggregate with respect to all such Contracts; (xi) (A) commence, settle, release, compromise or forgive any Proceeding, other than (1) in the case of a commencement of a Proceeding, (x) with respect to routine matters in the ordinary course of business or in cases where the Company reasonably determines in good faith that the failure to commence suit would result in a material impairment of a valuable aspect of its business; or (y) in connection with a breach by Parent or Merger Sub of this Agreement or any other agreement (including any Ancillary Document) contemplated hereby, and (2) settlements, releases, compromises or forgiveness that require only payment by the Company’s retail products and Company or any Subsidiary of the Company of cash amounts that does not exceed $1,000,000 individually or $2,000,000 in the aggregate and, for the avoidance of doubt, does not involve any material injunctive or other retail activities equitable relief, admissions of fault or other material obligations of the Company or any or any Subsidiary thereof; or (B) waive or relinquish any material claim held by the Company or any Subsidiary thereof, other than in the ordinary course of business consistent with past practice; provided, that this clause (xi) in excess of $100,000shall not apply to any stockholder Proceeding which shall be governed by Section 6.09; (gxii) make any material change in any financial or accounting methodspolicy, principles principle, procedure, method, estimate or practices used by itpractice, except as for any such change required by changes in GAAP (or any interpretation thereof) or applicable Law, in each case, occurring after the date of this Agreement; (ixiii) change any annual Tax accounting period, (iiA) make, change or rescind revoke any material Tax election, (iiiB) amend adopt or change any material Tax accounting method or change any Tax accounting period, unless required by changes in GAAP, (C) file any amended U.S. federal income or other material Tax Return, (ivD) adopt settle any Proceeding or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement audit relating to any material Tax liability or that could bind the Company or any of the Company’s its Subsidiaries after the Effective Dateinvolving a material amount of Taxes, or (viiE) give or request surrender any waiver or extension right to claim a refund of a statute material amount of limitation Taxes, (F) enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) with respect to a material Tax Returnamount of Taxes, or (G) amend or modify the TRA; (xiv) fail to maintain in each easeall material respects insurance in the name of the Company and its Subsidiaries in such amounts and covering such risks as are consistent with past practice, subject to availability of such insurance in the market at commercially reasonable rates; (xv) enter into or amend any Contract, arrangement or transaction with the Principal Stockholder or any Affiliate thereof (other than as required by applicable Law the Company or any Subsidiary thereof); (xvi) make any material capital expenditures or commitments therefor in excess of $5,000,000 in the aggregate, except in the ordinary course of business; (ixvii) adopt abandon or discontinue any amendment to its certificate material existing line of incorporation or bylaws (or equivalent governing documents)business; (jxviii) grant adopt or implement any material severance stockholder rights plan or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business)similar arrangement; (kxix) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate modify in any material Plan (other than materially adverse respect any publicly posted privacy policies, or any administrative, technical or physical safeguards related to privacy or cybersecurity, except in each case, as required by applicable, to remediate any security issue, to enhance data security or integrity, to comply with or improve compliance with applicable Law, to reflect changes in plan administrationas otherwise directed or required by a Governmental Entity, or in the ordinary course of business); (m) incur relation to any capital expenditure new or any obligationsupdated software, Liabilities products or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) technologies of the Company Disclosure Letter, settle (i) or any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceedingof its Subsidiaries; or (oxx) offerauthorize, commit or agree or commit, in writing or otherwise, to take any of the foregoing actions. (b) Control of the Company and Parent and Merger Sub. Notwithstanding the foregoing, Parent acknowledges and agrees that nothing contained in this Agreement is intended to give ParentParent or Merger Sub, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time Subsidiary of the Company prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions Effective Time in violation of this Agreement, complete control and supervision over their own business and operationsapplicable Law.

Conduct of Business of the Company. Except as described in Section 6.1 contemplated by this Agreement or with the prior written consent of the Company Disclosure Letter or as expressly provided for by this AgreementParent, during the period from the date of this Agreement to the Effective Time, the Company will, and continuing until the earlier will use its best efforts to cause each of the termination Company Subsidiaries to, conduct its operations only in the ordinary course of business consistent with past practice and will use its reasonable best efforts to, and to use its best efforts to cause each Company Subsidiary to, preserve intact the business organization of the Company and each of the Company Subsidiaries, to keep available the services of the present officers and key employees of the Company and the Company Subsidiaries, and to preserve the good will of customers, suppliers and all other persons having business relationships with the Company and the Company Subsidiaries. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or disclosed in Section 5.1 of the Company Disclosure Letter, prior to the Effective Time, the Company will conduct not, and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and the not permit any Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization and to preserve the present relationships with those Persons having business relationships with the Company Subsidiary (or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by clauses (e) and (h) below, use its best efforts not to permit any provision of this Section 6.1 shall be deemed Company Subsidiary that is not a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentencewholly-owned Company Subsidiary) to, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries toParent: (a) except as set forth on Section 6.1(a) of adopt any amendment to the Company Disclosure Letter, issue, sell, grant options Charter Documents or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance comparable organizational documents of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their termsSubsidiary; (b) acquire except for issuances of capital stock of Company Subsidiaries to the Company or redeem a wholly owned Company Subsidiary, issue, reissue or offer sell, or authorize the issuance, reissuance or sale of (i) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or redeemcapital stock, directly or indirectlyother than the issue of Company Shares, or amend any Company Securities, except to the extent provided in accordance with the terms of any the instruments governing such issuance on the date hereof, pursuant to the exercise of Company Stock PlanOptions or Company Warrants or the conversion of Convertible Notes outstanding on the date hereof, or (ii) any other securities in respect of, in lieu of, or in substitution for, Company Shares outstanding on the date hereof; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock, securities or property or any combination thereof) on in respect of any class or series of its capital stock other than between the Company and any Company Subsidiary; (d) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock stock, or any of its other securities, except for a redemption of the Company Preferred Shares in accordance with the terms of this Agreement; (other than cash dividends paid to e) except for (i) increases in salary, wages and benefits of officers or employees of the Company or one the Company Subsidiaries in the ordinary course of its wholly owned Subsidiaries by a wholly owned Subsidiary business and in accordance with past practice, (ii) increases in salary, wages and benefits granted to officers and employees of the Company or the Company Subsidiaries in conjunction with regard new hires, promotions or other changes in job status in the ordinary course of business and consistent with past practices, increase the compensation or fringe benefits payable or to become payable to its capital directors, officers or employees (whether from the Company or any Company Subsidiaries), or pay any benefit not required by any existing plan or arrangement (including the granting of stock options, stock appreciation rights, shares of restricted stock or performance units) or grant any severance or termination pay to (except pursuant to existing agreements, plans or policies), or enter into any employment or severance agreement with, any director, officer or other equity interests)employee of the Company or any Company Subsidiaries or establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees, except in each case to the extent required by applicable Law; PROVIDED, HOWEVER, that nothing in this Agreement will be deemed to prohibit the payment of benefits existing on the date hereof as they become payable; (df) (iexcept as set forth in Section 5.1(f) make any acquisition or dispositionof the Company Disclosure Letter, or make any offer or agreement to acquire acquire, sell, lease, license, transfer, pledge, encumber, grant or dispose of (whether by means of a merger, consolidation, recapitalization, purchase, sale or otherwise) any assets, in one transaction or any series including capital stock of related transactions, Company Subsidiaries (other than the acquisition and sale of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more inventory or the disposition of assets used or securities with a fair market value excess equipment and the purchase of raw materials, supplies and equipment, in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities either case in the ordinary course of business consistent with past practice), with a value in excess of $100,000 or enter into any material commitment or transaction outside the ordinary course of business, other than transactions between a wholly owned Company Subsidiary and the Company or another wholly owned Company Subsidiary; (g) (i) incur, assume or prepay any long-term indebtedness or incur or assume any short-term indebtedness (including, in either case, by issuance of debt securities), except that the Company and the Company Subsidiaries may incur, assume or prepay indebtedness in the ordinary course of business consistent with past practice and except for loans made by the Parent to the Company pursuant to the Bridge Loan Agreement dated as of the date hereof between the Company and the Parent (the "Bridge Loan Agreement"), (ii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 person except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; business, or (fiii) make any loans, advances or capital contributions to, or investments in, any other Person (other than person except in the ordinary course of business and except for loans, advances, capital contributions or investments between any direct or indirect wholly owned Subsidiaries of Company Subsidiary and the Company or another wholly owned Company Subsidiary; (h) terminate, cancel or request any material change in, or agree to any material change in connection with any Contract which is material to the Company’s retail products Company and the Company Subsidiaries taken as a whole, or enter into any Contract which would be material to the Company and the Company Subsidiaries taken as a whole, in either case other retail activities than in the ordinary course of business consistent with past practice) ; or make or authorize any capital expenditure, other than capital expenditures that are not, in the aggregate, for any fiscal year, in excess of $100,000; the capital expenditures provided for in the Company's budget for the Company and the Company Subsidiaries taken as a whole for such fiscal year (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Lawa copy of which budget has been provided to the Parent); (i) change take any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation action with respect to a material Tax Return, in each easeaccounting policies or procedures, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred actions in the ordinary course of business and consistent with past practice or as required pursuant to fund working capital requirements).applicable Law or GAAP; (nj) except as set forth on Section 6.1(n) of the Company Disclosure Lettermake any Tax election or settle or compromise any material federal, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof state, local or (ii) any other Legal Proceedingforeign income Tax liability; or (ok) offer, agree authorize or commit, in writing enter into any formal or otherwise, informal written or other agreement or otherwise make any commitment to take do any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

Conduct of Business of the Company. Except as described in Section 6.1 of the The Company Disclosure Letter or as expressly provided for by this Agreementcovenants and agrees that, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or hereof to the Effective Time, except as set forth in Section 4.1 of the Disclosure Schedule or unless Parent shall otherwise agree in writing, the businesses of the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practicesubsidiaries shall be conducted only in, and the Company will use shall not take any action and will cause its subsidiaries shall not take any action except in, the ordinary course of business; and the Company and each of its Subsidiaries to subsidiaries shall use its commercially reasonable best efforts to preserve intact its the business organization of the Company and its subsidiaries, to keep available the services of the present officers, employees and consultants of the Company and its subsidiaries and to preserve the present relationships of the Company and its subsidiaries with those Persons having business relationships customers, suppliers and other persons with which the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentencesubsidiaries has significant business relationships. Without limiting the generality of the foregoing and foregoing, except as otherwise expressly provided for by in this AgreementAgreement (including Section 4.3), during neither the period specified in Company nor any of its subsidiaries shall, between the preceding sentencedate of this Agreement and the Effective Time, directly or indirectly do, or propose or commit to do, any of the following without the prior written consent of Parent (which consent shall may not be unreasonably conditioneddelayed or withheld): (a) (i) declare, withheld set aside or delayed)pay any dividends on, the Company will not and will not permit or make any other distributions in respect of, any of its Subsidiaries to:capital stock (except dividends and distributions by a wholly owned subsidiary of the Company to its parent), (ii) 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 or (iii) purchase, redeem or otherwise acquire any shares of capital stock of the 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 (other than in connection with its employee stock purchase plan consistent with past practice); (ab) except as set forth on Section 6.1(ain Schedule 3.1(m) of the Company Disclosure LetterSchedule and except as permitted under existing Plans or Employment Arrangements in effect on the date of this Agreement (including, without limitation, any Stock Incentive Plans) and consistent with past practice, authorize for issuance, issue, sell, grant options or rights to purchase, pledge, deliver, transfersell or agree or commit to issue, dispose sell or deliver (whether through the issuance or granting of or encumber any shares of or securities convertible into or exchangeable foroptions, or authorize or propose the issuancewarrants, salecommitments, grant of options or subscriptions, rights to purchase or pledgeotherwise), deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify pledge or otherwise amend the terms of encumber any shares of its capital stock or declarethe capital stock of any of its subsidiaries, set aside, make or pay any dividend or other distribution (whether in cash, stock, property voting securities or any combination thereofsecurities 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) on any shares of its capital stock (other than cash dividends paid sales of capital stock of any wholly owned subsidiary of the Company to the Company or one of its another wholly owned Subsidiaries by a wholly owned Subsidiary subsidiary of the Company with regard to its capital stock or other equity interestsCompany); (dc) except as set forth in Section 3.1(m) of the Disclosure Schedule and except to the extent required under existing Plans or Employment Arrangements as in effect on the date of this Agreement, (i) make any acquisition increase the compensation or disposition, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, fringe benefits of any material businessof its directors, assets officers or securities employees, except for periodic increases in salary or any sale, lease, encumbrance wages of officers or other disposition of assets or securities employees of the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities subsidiaries in the ordinary course of business consistent with past practice, or (ii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver severance or relinquishment of any material rights termination pay not currently required to be paid under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any existing Plans other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities than in the ordinary course of business consistent with past practice, or (iii) enter into any Employment Arrangement or similar agreement or arrangement with any present or former director level or other equivalent or more senior officer or employee, or, other than in the ordinary course of business, any other employee of the Company or any of its subsidiaries, or (iv) establish, adopt, enter into or amend in any material respect or terminate any Plan or Employment Arrangement or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees; provided that this Section 4.1(c) shall not apply to (A) any employment or consulting arrangement providing for annual compensation (excluding benefits) of $200,000 or less which is entered into in the ordinary course of business or (B) any renewal of any existing employment or consulting arrangement that provides for an increase in annual compensation (excluding benefits) of 10% or less than the immediately preceding year or (C) any amendment or termination of the Stock Incentive Plans necessary or desirable to effectuate the purposes of Section 2.3; (d) amend its certificate of incorporation, by-laws or other comparable charter or organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any Significant Subsidiary of the Company; (e) acquire or agree to acquire (i) 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 or division thereof or (ii) any assets that are material, individually or in the aggregate, to the Company and its subsidiaries taken as a whole; (f) sell, lease, dispose of, license, mortgage or otherwise encumber or subject to any lien or otherwise dispose of any of its properties or assets, except (i) in the ordinary course of business, and (ii) in connection with capital expenditures permitted to be expended by the Company pursuant to Section 4.1(h); (g) (i) incur or assume any indebtedness for borrowed money or guarantee any such indebtedness of another person (other than guarantees by the Company in favor of any of its wholly owned subsidiaries or by any of its subsidiaries in favor of the Company), issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for borrowings incurred in the ordinary course of business under existing lines of credit, or (ii) make any loans, advances or capital contributions to, or investments in, any other Person (person, other than to the Company or any direct or indirect wholly owned Subsidiaries subsidiary of the Company; (h) authorize or expend funds for capital expenditures other than in accordance with the Company's current capital expenditure plans and budgets (which plans and budgets shall have been disclosed in writing to Parent on or prior to the date hereof); (i) enter into, amend in any material respect, terminate, rescind, waive in any material respect or release any of the terms or provisions of any (i) Material Contract or (ii) any other agreement which is material to the business of the Company and its subsidiaries taken as a whole other than in the ordinary course of business, in each case other than (A) any modification in compliance with the terms of Section 5.6(a)(ii), (B) any modification or termination of an LMA Agreement to comply with any FCC rule making proceeding or other action, (C) any programming agreement entered into after the date hereof in the ordinary course of business and which provides for annual payments by a Company Station of $400,000 or less and has a term of 2 years or less and (D) any modification of the PMVG approved by the Independent Directors; (j) knowingly violate or fail to perform any material obligation or duty imposed upon it by any applicable material federal, state or local law, rule, regulation, guideline or ordinance; (k) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (l) recognize any labor union (unless legally required to do so) or enter into or materially amend any collective bargaining agreement; (m) except as may be required as a result of a change in law or in connection with generally accepted accounting principles, make any material change in its method of accounting; (n) revalue in any material respect any of its material assets, including, without limitation, writing down the Company’s retail products value of inventory or writing-off notes or accounts receivable other than in the ordinary course of business or as required by generally accepted accounting principles; (o) except to the extent required by law, make or revoke any Tax election or settle or compromise any Tax liability that is, in the case of any of the foregoing, material to the business, financial condition or results of operations of the Company and its subsidiaries taken as a whole or change (or make a request to any taxing authority to change) any material aspect of its method of accounting for tax purposes; (p) except for claims covered by insurance, settle or compromise any litigation in which the Company or any subsidiary is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, which payments are individually in an amount in excess of $500,000 and in the aggregate in an amount in excess of $1,000,000, or settle or compromise any pending or threatened suit, action or claim which would prevent or materially delay the ability of the Company to consummate the transactions contemplated hereby; (q) pay any liabilities or obligations (absolute, accrued, asserted, contingent or otherwise), other retail activities than any payment, discharge or satisfaction in the ordinary course of business consistent with past practice) , any payment for the prepaid insurance and indemnification policy referred to in excess the second proviso of $100,000Section 5.5 and any payment of expenses arising in connection with the transactions contemplated hereby; (gr) change knowingly violate or fail to perform any financial accounting methodsmaterial obligation under the consulting agreement with WOOD-TV, principles or practices used by itGrand Rapids, except as required by applicable Law;Michigan; and (is) change any annual Tax accounting periodtake, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree propose to any adjustment of any material Tax attributetake, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceeding; or (o) offer, agree or commit, in writing or otherwiseotherwise to take, to take any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

Conduct of Business of the Company. Except as described set forth in Section 6.1 of the Company Disclosure Letter or as expressly provided for contemplated by this Agreement, during the period from commencing on the date of this Agreement hereof and continuing until the earlier of the termination of this Agreement or ending at the Effective Time, the Company will conduct shall, and will shall cause each of its Subsidiaries to subsidiaries to, conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and the Company will use shall, and will shall cause each of its Subsidiaries to subsidiaries to, use its commercially all reasonable efforts to preserve intact its business organization and to preserve the present maintain satisfactory relationships with those Persons its customers, suppliers and others having material business relationships with the Company or any of its Subsidiariesit; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 it shall not be deemed a breach of this covenant if the covenants contained Company fails to conduct its operations according to its ordinary course of business consistent with past practice if such deviation results from the limitations set forth in this Section 6.1 unless such action would constitute a breach of one clauses (e) or more specific provisions of the following sentence(g) below. Without limiting the generality of the foregoing foregoing, and except as otherwise expressly provided for by in this Agreement, during prior to the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Effective Time, the Company will not and will not permit any or its subsidiaries to, without the prior written consent of its Subsidiaries tothe Parent: (a) except as set forth on Section 6.1(aamend or propose to amend its certificate of incorporation or by-laws (or equivalent governing instruments); (b) of the Company Disclosure Letterauthorize for issuance, issue, sell, grant options or rights to purchase, pledge, deliverdeliver or agree or commit to issue, transfersell, dispose pledge or deliver (whether through the issuance or granting of any options, warrants, calls, subscriptions, stock appreciation rights or other rights or other agreements) or otherwise encumber any shares capital stock of any class or any securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant for shares of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance capital stock of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securitiesclass, other than Company Shares the issuance of shares of Common Stock issuable upon exercise of the Company Stock Options or vesting conversion of Company RSU Awards 7% Debentures outstanding on the date hereof of this Agreement or pursuant to the Stock Purchase Plan or the Directors Plan (in each of such case, in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the present terms of any Company Stock Planthereof); (c) split, combine, subdivide, combine or reclassify or otherwise amend the terms of any shares of its capital stock or declare, pay or set aside, make or pay aside for payment any dividend or other distribution (whether in cash, respect of or substitution for its capital stock, property or any combination thereof) on redeem, purchase or otherwise acquire any shares of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests)stock; (d) except as set forth in Schedule 4.9, increase or establish any compensation or benefit plan, agreement, policy, practice, program or arrangement that would be a Plan (ihad such plan, agreement, policy, practice, program or arrangement been adopted prior to the date of this Agreement) make or otherwise increase in any acquisition manner the compensation payable or disposition, or make any offer or agreement to acquire or dispose become payable by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries subsidiaries to any of their respective directors, officers, former employees, or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000employees, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice, (ii) adopt a plan of complete practice or partial liquidation, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights as required under any Material Contract, in a manner that would reasonably be expected to materially delay existing employment agreement or prevent the consummation of the Merger Plan or any of the transactions contemplated therebythis Agreement; (e) assumeacquire or agree to acquire (x) by merging or consolidating with, guaranteeor by purchasing a substantial portion of the assets of, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of by any other Person manner, any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof or (y) any assets, outside of the ordinary course of business that in the aggregate is in excess of $100,000 except 10 million; it being understood that the foregoing does not restrict any direct construction project heretofore identified or indirect wholly owned Subsidiaries of commenced by the Company that is not prohibited by Section 6.1(h) below; (f) sell, lease, license, or in connection otherwise dispose of, or enter into any material contract, commitment, lease or agreement with respect to, any properties or assets (i) that are material to the Company’s retail products Company and its subsidiaries taken as a whole and (ii) other retail activities than in the ordinary course of business consistent with past practice; (fg) (x) incur any long-term indebtedness in excess of the aggregate amount of the Company's consolidated long-term indebtedness outstanding as of June 16, 1997 other than (i) indebtedness not to exceed $10 million at any one time outstanding, the proceeds of which are used to make acquisitions permitted by clause (e) above; provided, that the ratio of the principal amount of the indebtedness incurred to finance such acquisitions to the aggregate pro forma cash flow of the businesses so acquired during the four fiscal quarters preceding such acquisition does not exceed 6:1, and (ii) additional indebtedness not to exceed $10 million on the date shares are purchased in the Offer, and except for intercompany indebtedness between the Company and any of its subsidiaries or between such subsidiaries, or (y) make any loans, advances or capital contributions to, or investments in, any other Person (person, other than to the Company or any direct or indirect wholly owned Subsidiaries subsidiary or joint venture of the Company or in connection with to officers and employees of the Company’s retail products and other retail activities Company or any of its subsidiaries for travel, business or relocation expenses in the ordinary course of business consistent with past practice) in excess of $100,000; (gh) make or agree to make any new capital expenditure or capital expenditures other than in accordance with the Company's 1997 budget previously delivered to Parent; (i) make any tax election or settle or compromise any tax liability that will have a Material Adverse effect with respect to the Company; (j) make any material change any financial to its accounting methods, principles or practices used by itpractices, except as may be required by applicable Law; (i) change any annual Tax generally accepted accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business)principles; (k) enter into any collective bargainingother agreements, works council commitments or similar labor agreement; (l) adoptcontracts that are material to the Company and its subsidiaries taken as a whole, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice practice, or otherwise make any material change that is adverse to fund working capital requirements). (n) except as set forth on Section 6.1(n) of the Company Disclosure Letter, settle (including by way of termination) in (i) any Legal Proceeding existing agreement, commitment or arrangement that is disclosed in material to the Company SEC Reports filed prior to the date hereof and its subsidiaries taken as a whole or (ii) any other Legal Proceeding; or (o) offer, agree or commit, in writing or otherwise, to take any the conduct of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercisesubsidiaries; or (l) agree, consistent with commit or arrange to do any of the terms and conditions of this Agreement, complete control and supervision over their own business and operationsforegoing.

Conduct of Business of the Company. Except as described in contemplated by this Agreement (including Section 6.1 5.2 of the Company Disclosure Letter or as expressly provided for by this AgreementLetter), during the period from the date of this Agreement and continuing until the earlier of Effective Time or until the termination of this Agreement or the Effective Timepursuant to Section 7.1, the Company will and its subsidiaries shall conduct and will cause each of its Subsidiaries to conduct its operations their respective businesses in all material respects according to its the ordinary and usual course of business consistent with past practice, including, without limitation, where consistent with past practice, consulting with, advising and obtaining the Company will use approval of Parent, and will cause each of its Subsidiaries to shall use its commercially reasonable efforts to (i) preserve intact its present business organization organization; provided that no action taken by Parent or any of its subsidiaries (other than Company and its subsidiaries) with respect to preserve the present relationships with those Persons having business relationships with Company and its subsidiaries which would otherwise result in a breach of this Section, shall so constitute a breach, (ii) maintain in effect all material licenses, approvals and authorizations, including, without limitation, all licenses and permits that are required by applicable laws, statutes, ordinances, rules or regulations for the Company or any of its Subsidiaries; providedsubsidiaries to carry on its business, howeverand (iii) preserve material existing relationships with its employees, that no action by the Company or its Subsidiaries agents, and its customers, lenders, suppliers and others having business relationships with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentenceit. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreementforegoing, during neither the period specified in the preceding sentenceCompany nor any of its subsidiaries shall, without the prior written consent of Parent Parent: (which consent shall not be unreasonably conditionedi) declare, withheld set aside or delayed), the Company will not and will not permit pay any dividends on or make any other distribution in respect of any of its Subsidiaries to: (a) capital stock, except as set forth on Section 6.1(a) dividends or distributions declared and paid by a wholly owned subsidiary of the Company Disclosure Letteronly to the Company or another wholly owned subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance or authorization of any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or repurchase, redeem or otherwise acquire any shares of its capital stock; (iii) except with respect to the creation of the Company Preferred Stock and the issuance of the Company Preferred Stock in exchange for the Embedded Shares as contemplated by Section 1.6 hereof, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable forsell, or authorize or propose the issuance, saledelivery, grant of options or rights to sale of, or purchase or pledgepropose the purchase of, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declaresecurities convertible into, set asideor rights, make warrants or pay options to acquire, any dividend such shares of capital stock or other distribution (whether in cash, stock, property or any combination thereof) on any shares of its capital stock convertible securities (other than cash dividends paid the issuance of such capital stock to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary subsidiary of the Company, or upon the exercise or conversion of outstanding options in accordance with the Stock Plans in effect on the date of this Agreement or other convertible or exchangeable securities outstanding on the date hereof, in each case in accordance with their present terms, as such terms may be amended or modified as contemplated by this Agreement), authorize or propose any change in its equity capitalization, or amend any of the financial or other economic terms of such securities or the financial or other economic terms of any agreement relating to such securities, except as contemplated by this Agreement; (iv) except for the creation of the Company with regard to Preferred Stock, amend the Company Certificate of Incorporation, Company Bylaws or its capital stock or other equity interests)organizational documents in any manner; (dv) take any action that would reasonably be expected to result in any of the conditions to the Transactions set forth in Article 6 not being satisfied; (ivi) merge or consolidate with any other Person, or acquire any assets of or equity interest in any other Person, other than acquisitions of assets in the ordinary course of business, such as for inventory or relating to the ordinary operations of the Company; (vii) incur any indebtedness for money borrowed or guarantee any such indebtedness of another Person, other than (x) indebtedness incurred under any agreement relating to indebtedness for borrowed money in existence on the date hereof, (y) indebtedness in an amount not to exceed $500,000, or (z) in the ordinary course of business; (viii) make or authorize any acquisition capital expenditures of the Company and its subsidiaries taken as a whole in excess of $1,000,000 other than capital expenditures that are part of the Company’s then existing budget, which has previously been approved by the Company’s Board of Directors; (ix) except as may be required by changes in applicable law or dispositionGAAP, change any principle of accounting, or make change in any offer material respect its method of reporting income and deductions for United States federal income tax purposes, from those employed in the preparation of its federal income tax returns for the year ended December 31, 2002, except as required by changes in law or regulation; (x) enter into any new employment agreements, or increase the compensation of any officer or director of the Company or any senior executive of any of its subsidiaries or operating units (including entering into any bonus, severance, change of control, termination, reduction-in-force or consulting agreement or other employee benefits arrangement or agreement pursuant to acquire or dispose by means which such Person has the right to any form of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of compensation from the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000subsidiaries), other than any acquisition, disposition, sale, lease as required by law or encumbrance of assets related to by written agreements in effect on the Company’s retail products and other retail activities in the ordinary course of business consistent date hereof with past practice, (ii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuringsuch Person, or (iii) enter into a Material Contract otherwise amend any existing agreements with any such Person or use its discretion to amend any Company Benefit Plan or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment accelerate the vesting of any material rights payment under any Material ContractCompany Benefit Plan, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities than in the ordinary course of business consistent with past practice; (fxi) make enter into any loans, advances transaction with any officer or capital contributions to, or investments in, any other Person (other than any direct or indirect wholly owned Subsidiaries director of the Company or any senior executive of any of its subsidiaries or operating units, other than as provided for in connection with the Company’s retail products terms of any agreement in effect on or prior to the date hereof and described in the Company Disclosure Letter or as otherwise contemplated by this Agreement; (xii) enter into any settlement or compromise of any litigation, arbitration or other retail activities judicial or administrative dispute or proceeding relating to the Company or any of its subsidiaries, in each case which requires the payment by the Company or any of its subsidiaries of $100,000 or more; (xiii) amend, modify or terminate any Material Contract, or otherwise waive, release or assign any rights, claims or benefits of the Company or any of its subsidiaries thereunder; or (xiv) other than in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change , make any financial accounting methods, principles tax election or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceeding; or (oxv) offerauthorize or enter into any contract, agree agreement, commitment or commit, in writing or otherwise, arrangement to take do any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

Conduct of Business of the Company. Except as described in Section 6.1 of the (a) The Company Disclosure Letter or as expressly provided for by this Agreementcovenants and agrees that, during the period from the date of this Agreement and continuing hereof until the earlier of the termination of this Agreement or the Effective Time, the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and the Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization and to preserve the present relationships with those Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except (i) as otherwise expressly provided for specifically required by this Agreement, during the period specified (ii) as required by applicable Law or (iii) if Parent otherwise provides its prior consent in the preceding sentence, without the prior written consent of Parent writing (which consent shall not be unreasonably conditionedwithheld, withheld conditioned or delayed), the Company will not shall, and will not permit any shall cause each of its Subsidiaries to: (a) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, grant options or rights use commercially reasonable efforts to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of conduct its capital stock or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) on any shares of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests); (d) (i) make any acquisition or disposition, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities business in the ordinary course of business consistent with past practice, to (w) preserve substantially intact its business organization, (x) preserve its tangible assets and properties in their current states of repair and condition (ordinary wear excepted), (y) preserve its current relationships with customers, suppliers and other Persons with which it has material business relations and (z) maintain insurance policies or replacement or revised policies in such amounts and against such risks and losses as are currently in effect; provided, however, that no action taken by the Company or its Subsidiaries that is specifically permitted by any provision of Section 6.1(b) shall be deemed a breach of this sentence unless such action constitutes a breach of such provision of Section 6.1(b). (b) Without limiting the generality of Section 6.1(a), between the date of this Agreement and the Effective Time, except (i) as specifically required by this Agreement, (ii) as described in Section 6.1 of the Company Disclosure Letter, (iii) as required by applicable Law or (iii) if Parent provides its prior consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any of its Subsidiaries to: (i) amend or permit the adoption of any amendment to the charter or bylaws (or equivalent organizational documents) of any Acquired Company; (ii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or restructuring, or other reorganization; (iii) enter into a Material Contract issue, grant, deliver, sell, pledge, dispose of or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment encumber (except for the pledging of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation shares of capital stock of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of the Company as required by the Company Credit Facility) any (A) shares of capital stock, except pursuant to the exercise of Company Stock Options or Company Warrants outstanding as of the date hereof and in connection accordance with the terms of such instruments, (B) other voting securities of, or equity interests in, the Company or any capital stock or voting securities of, or other equity interests in, any Subsidiary of the Company’s retail products and , (C) securities convertible into or exercisable or exchangeable for any shares of capital stock or voting securities of, or equity interests in, the Company or any of its Subsidiaries, (D) right to acquire any shares of capital stock or voting securities of, or other retail activities equity interests in, the Company or any of its Subsidiaries, (E) Company Stock Equivalents or (F) Company Voting Debt; (iv) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or other equity interests (except for any dividend or distribution by a Subsidiary of the Company to the Company or to other Subsidiaries); (v) otherwise manage its working capital in a manner other than in the ordinary course of business consistent with past practice; (fvi) adjust, split, combine, redeem, repurchase or otherwise acquire any shares of its capital stock or other equity interests (except in connection with the cashless exercises or similar transactions (including withholding of Taxes) pursuant to the exercise of Company Stock Options or Company Warrants outstanding as of the date hereof), or reclassify, combine, split, subdivide or otherwise amend the terms of its capital stock or other equity interests, or enter into any agreement with respect to the voting of any of the Company’s capital stock or other securities or the capital stock or other securities of a Subsidiary of the Company; (vii) authorize, or make any commitment with respect to, any capital expenditure, other than in the ordinary course of business consistent with past practice in an amount not to exceed $100,000.00 individually or $250,000.00 in the aggregate; (viii) (A) acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any assets, other than (1) purchases of inventory and other assets in the ordinary course of business consistent with past practice, or (2) pursuant to Contracts in effect on the date hereof, or (B) sell, lease, exchange, mortgage, pledge, transfer, subject to any Lien or otherwise dispose of (whether by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any assets, other than (1) sales or dispositions of inventory and other assets in the ordinary course of business consistent with past practice or (2) grants of Liens or (3) pursuant to Contracts in effect on the date hereof; (ix) enter into any material joint venture or partnership; (x) engage in any transactions, agreements, arrangements or understandings with any Affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (xi) (A) make any loans, advances or capital contributions to, or investments in, any other Person (other than a Subsidiary of the Company), (B) incur any direct indebtedness for borrowed money or indirect wholly owned Subsidiaries issue any debt securities or (C) assume, guarantee, endorse or otherwise become liable or responsible for the indebtedness or other obligations of another Person (other than a guaranty by the Company on behalf of its Subsidiaries); (xii) except to the extent required by applicable Law (including Section 409A of the Code), or the terms of any Company Plan, and except as contemplated by Section 6.9 or otherwise under this Agreement, (A) increase the compensation or benefits of any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, except for (1) regular or merit based increases in connection base salaries of non-executive employees of the Company and its Subsidiaries, (2) the payment of bonuses in accordance with the Company’s retail products terms of a Company Plan, (3) the payment of commissions pursuant to any current sales commission plan and other retail activities (4) promotions of non-executive employees of the Company and its Subsidiaries, in each case in the ordinary course of business consistent with past practice, (B) amend, terminate or adopt any compensation or benefit plan including any pension, retirement, profit-sharing, bonus or other employee benefit or welfare benefit plan or employment or severance agreement, (C) accelerate the vesting of, or the lapsing of restrictions with respect to, any stock options or other stock-based compensation, (D) fail to make any required contributions under any Company Plan, (E) hire or terminate the employment, or modify the contractual relationship of, any officer, sales personnel or consultant of the Company or any of its Subsidiaries or (F) hire or terminate the employment, or modify the contractual relationship of, any employee (other than an officer or sales personnel) of the Company or any of its Subsidiaries, other than hirings or terminations in excess the ordinary course of $100,000business consistent with past practice or as expressly required to comply with the express provisions of customer Contracts; (gxiii) implement or adopt any change any financial accounting methods, principles or practices used by itin its methods of accounting, except as may be appropriate or required by applicable Lawto conform to changes in statutory or regulatory accounting rules or GAAP or regulatory requirements with respect thereto; (ixiv) change (A) fail to file any annual Tax accounting periodReturn when due (after giving effect to any extensions of time in which to make such filings), (iiB) prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods, or (C) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement settle or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or refund, file any amended Tax Return involving a material amount of the Company’s Subsidiaries after the Effective Dateadditional Taxes, or (vii) give waive or request any waiver or extension of a extend the statute of limitation with limitations in respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay Taxes (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course extensions of business), or grant any material increases in the compensation or benefits payable time to its officers or directors (except for increases in the ordinary course of businessfile Tax Returns); (kxv) enter into (A) pay, discharge, waive, settle, compromise, release or satisfy any collective bargainingclaim, works council liability or similar labor agreement; (l) adoptobligation in excess of $100,000.00 individually or $250,000.00 in the aggregate that is not an Action, enter into, materially amend or terminate any material Plan (other than as required by applicable Lawpayment, to reflect changes in plan administrationdischarge, waiver, settlement, release or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred satisfaction in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) of and other than the satisfaction or performance by the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed and its Subsidiaries of their respective obligations in accordance with the Company SEC Reports filed prior applicable terms thereof under Contracts in effect on the date hereof and Contracts permitted under this Section 6.1 to be entered into on or following the date hereof or (B) other than in connection with the ordinary course settlement of disputes with customers, accelerate, discount, factor, reduce, sell (for less than its face value or otherwise), transfer, assign or otherwise dispose of, in full or in part, any accounts receivable owed to the Company or any of its Subsidiaries, with or without recourse, including any rights or claims associated therewith; (xvi) (i) enter into, amend, renew, modify or consent to the termination of (other than a termination in accordance with its terms) any Material Contract or Contract that would be a Material Contract if in effect on the date of this Agreement or (ii) amend, waive, modify, fail to enforce or consent to the termination of (other than a termination in accordance with its terms) its material rights thereunder; (xvii) effectuate a “plant closing” or “mass layoff,” as those terms are defined in WARN; (xviii) create any other Legal ProceedingSubsidiary; or (oxix) offeragree to, agree authorize, or commit, in writing or otherwise, enter into any Contract obligating it to take any of the foregoing actions. Notwithstanding actions described in Sections 6.1(b)(i) through 6.1(b)(xviii). (c) From and after the foregoingdate hereof and prior to the Effective Time, nothing in this Agreement is intended to give Parentand except as may otherwise be required by applicable Law, the Company shall not, and shall cause its Subsidiaries not to, directly or indirectly, take any action that is intended to or that would reasonably be expected to (a) materially adversely affect or materially delay the right ability of Company or any of its Subsidiaries to control or direct obtain any necessary approvals of any Governmental Entity necessary for the business or operations consummation of the Company transactions contemplated hereby or to perform its Subsidiaries at covenants or agreements set forth herein, (b) cause its representations and warranties set forth in Article IV to be untrue in any time prior to material respect or (c) otherwise, individually or in the Acceptance Time. Prior to the Acceptance Timeaggregate, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationshave a Material Adverse Effect.

Conduct of Business of the Company. Except as described in Section 6.1 of the Company Disclosure Letter or as expressly provided for contemplated by this AgreementAgreement or otherwise with the prior written consent of Parent, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or to the Effective Time, the Company will conduct will, and will cause each of its Subsidiaries to subsidiaries to, conduct its operations only in all material respects according to its the ordinary and usual course of business consistent with past practice, practice and the Company will use its reasonable best efforts, and will cause each of its Subsidiaries subsidiaries to use its commercially reasonable efforts best efforts, to preserve intact its the business organization of the Company and each of its subsidiaries, to keep available the services of its and their present officers and employees, and to preserve the present good will of those having business relationships with those Persons it, including, without limitation, maintaining satisfactory relationships with licensors, suppliers, customers and others having business relationships with the Company or any of and its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentencesubsidiaries. Without limiting the generality of the foregoing foregoing, and except as otherwise expressly provided for contemplated by this Agreement, during the period specified in Company will not, and will not permit any of its subsidiaries to, prior to the preceding sentenceEffective Time, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries toParent: (a) except as set forth on Section 6.1(a) adopt any amendment to its certificate of incorporation or by-laws or comparable organizational documents or the Company Disclosure LetterRights Agreement or adopt a plan of merger, issueconsolidation, sellreorganization, grant options dissolution or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their termsliquidation; (b) acquire sell, pledge or redeem encumber any stock owned by it in any of its subsidiaries; (i) issue, reissue or offer sell, or authorize the issuance, reissuance or sale of (A) additional shares of capital stock of any class, or securities convertible into capital stock of any class, or any rights, warrants or options to acquire any convertible securities or redeemcapital stock, directly or indirectlyother than the issuance of Common Shares (and the related Rights), or amend any Company Securities, except to the extent provided in accordance with the terms of the instruments governing such issuance on the date hereof, pursuant to the exercise or conversion of Options and any Company Stock Plan;Exchangeable Shares outstanding on the date hereof, or (B) any other (cd) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock, securities or property or any combination thereof) on in respect of any class or series of its capital stock other than between any of the Company and any of its wholly owned subsidiaries; (e) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any shares of its capital stock (other than cash dividends paid to the Company stock, or one any of its wholly owned Subsidiaries by a wholly owned Subsidiary other securities (except as disclosed in Section 6.1(e) of the Company with regard to its capital stock or other equity interestsDisclosure Schedule); (df) (i) make any acquisition increase the compensation or dispositionfringe benefits payable or to become payable to its directors, or make any offer or agreement to acquire or dispose by means of a mergerofficers or, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities except in the ordinary course of business consistent with past practice, employees (ii) adopt a plan whether from the Company or any of complete or partial liquidation, dissolution, recapitalization or restructuringits subsidiaries), or pay or award any benefit not required by any existing plan or arrangement to any officer, director or employee (iii) enter into a Material Contract including, without limitation, the granting of stock options, stock appreciation rights, shares of restricted stock or amend performance units pursuant to the Stock Plans or terminate any Material Contract in any material respect otherwise), or grant any releaseseverance or termination pay to any officer, waiver director or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation other employee of the Merger Company or any of its subsidiaries (other than as required by existing agreements or policies described in Section 6.01 of the transactions contemplated therebyCompany Disclosure Schedule), or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of its subsidiaries or establish, adopt, enter into, amend, or waive any performance or vesting criteria under any Plan for the benefit or welfare of any current or former directors, officers or employees of the Company or its subsidiaries or their beneficiaries or dependents (any of the foregoing being an "Employee Benefit Arrangement"), except, in each case, to the extent required by applicable law or regulation; (eg) acquire, mortgage, encumber, sell, pledge, lease, license or dispose of any assets (including Intellectual Property) or securities, except pursuant to existing contracts or commitments entered into in the ordinary course of business consistent with past practice, or enter into any contract, arrangement, commitment or transaction outside the ordinary course of business consistent with past practice other than transactions between a wholly owned subsidiary of the Company and the Company or another wholly owned subsidiary of the Company; (h) (i) incur, assume or prepay any long-term debt or incur or assume any short-term debt, except that the Company and its subsidiaries may incur or prepay debt in the ordinary course of business in amounts and for purposes consistent with past practice under existing lines of credit, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 person except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; , (fiii) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice, (iv) make any loans, advances or capital contributions to, or investments in, any other Person (other than person or entity, except for loans, advances, capital contributions or investments between any direct or indirect wholly owned Subsidiaries subsidiary of the Company and the -27- 32 Company or in connection with another wholly owned subsidiary of the Company’s retail products and other retail activities , (v) authorize or make capital expenditures in excess of $50,000, (vi) materially accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give materially delay or request any waiver or extension accelerate payment of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law accounts payable beyond or in the ordinary course advance of business; (i) adopt any amendment to its certificate of incorporation due date or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred such liability would have been paid in the ordinary course of business consistent with past practice practice, or (viii) vary the Company's inventory practices in any material respect from the Company's past practices; (i) settle or compromise any suit or claim or threatened suit or claim where the amount involved is greater than $50,000; (j) other than in the ordinary course of business consistent with past practice, (i) modify, amend or terminate any material contract, (ii) waive, release, relinquish or assign any contract (or any of the rights of the Company or any of its subsidiaries thereunder), right or claim, or (iii) cancel or forgive any indebtedness (other than with respect to fund working capital requirements).indebtedness which is de minimus in the aggregate) owed to the Company or any of its subsidiaries; provided, however, that neither the Company nor any of its subsidiaries may under any circumstance waive or release any of its rights under any confidentiality agreement to which it is a party; (k) make any tax election not required by law or settle or compromise any tax liability; (l) cancel or terminate any insurance policy naming it as a beneficiary or a loss payable payee, except in the ordinary course of business consistent with past practice; (m) acquire (by merger, consolidation, acquisition of stock or assets, combination or other similar transaction) any material corporation, partnership or other business organization or division or assets thereof; (n) except as set forth on Section 6.1(n) may be required as a result of a change in law or in GAAP or the rules of the Company Disclosure LetterSEC, settle (i) make any Legal Proceeding that is disclosed change in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceeding; orits methods of accounting, including tax accounting policies and procedures; (o) offerenter into any agreement of a nature that would be required to be filed as an exhibit to Form 10-K under the Exchange Act or make or submit any bids or proposals in excess of $1,000,000 with respect to any services proposed to be rendered in any location in Latin America, or in excess of $3,000,000 with respect to any services proposed to be rendered in any location outside of Latin America, provided that Parent agrees not to unreasonably withhold or delay its consent with respect to such bids or proposals and provided further that Parent agrees that any information provided by the Company relating to such bids or proposals shall (i) be treated confidentially, (ii) shall not be disclosed to any employees of Parent or its subsidiaries who are involved in preparing or substantively analyzing a bid or proposal on behalf of Parent or any of its subsidiaries relating to such services at the applicable location and (iii) shall not be used to the detriment of the Company in connection with such bid or proposal; (q) agree or commit, in writing or otherwise, otherwise to take any of the foregoing actions. Notwithstanding the foregoing, nothing in actions prohibited under this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationsSection 6.1.

Conduct of Business of the Company. Except The Company hereby covenants and agrees that, prior to the Effective Time, unless Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as described in Section 6.1 of the Company Disclosure Letter or as otherwise expressly provided for contemplated by this Agreement, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective TimeRelated Agreements, the Company will conduct shall, and will shall cause each of its Subsidiaries to conduct to, (i) operate its operations business in all material respects according to its the usual and ordinary and usual course of business consistent with past practice, and the Company will use and will cause each of its Subsidiaries to (ii) use its commercially reasonable efforts to preserve substantially intact its business organization organization, maintain its rights and to preserve franchises, retain the present services of its respective principal officers and key employees and maintain its relationships with those Persons having business relationships its respective principal customers, suppliers and other persons with the Company which it or any of its Subsidiaries; providedSubsidiaries has significant business relations and (iii) use its commercially reasonable efforts to maintain and keep its properties and assets in as good repair and condition as at present, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentenceordinary wear and tear excepted. Without limiting the generality of the foregoing foregoing, and except as otherwise expressly provided for contemplated by this Agreement, during Sections 6.3(a)-6.3(q) of the period specified Company Disclosure Schedule or the Related Agreements or consented to in the preceding sentence, without the prior written consent of writing by Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not shall not, and will shall not permit any of its Subsidiaries to, do any of the following: (a) except as set forth on Section 6.1(aamend or propose to amend its certificate of incorporation or bylaws (or other governing documents); (b) of the Company Disclosure Letterauthorize for issuance, issue, sell, grant options or rights to purchase, pledge, deliver, transferor agree or commit to issue, sell or deliver, dispose of, encumber or pledge (whether through the issuance or granting of or encumber any shares of or securities convertible into or exchangeable foroptions, or authorize or propose the issuancewarrants, salecommitments, grant of options or subscriptions, rights to purchase or pledge, deliver, transfer, or disposition or encumbrance otherwise) any stock of any shares of class or securities convertible into or exchangeable forany securities, except as required by agreements with the Company's employees under the Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise Stock Plans as in effect as of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectlyhereof, or amend any Company Securities, except to the extent provided in of the terms of any Company Stock Plansuch securities or agreements outstanding as of the date hereof; (c) split, combine, subdivide, combine or reclassify or otherwise amend the terms of any shares of its capital stock or stock, declare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock, stock or property or any combination thereof) on any shares in respect of its capital stock (other than cash dividends paid to the Company stock, or one redeem or otherwise acquire any of its wholly owned Subsidiaries by a wholly owned Subsidiary securities or any securities of the Company with regard to its capital stock or other equity interests)Subsidiaries; (d) (i) make incur or assume any acquisition long-term or dispositionshort-term indebtedness or issue any debt securities, other than borrowings under (A) the Revolving Credit (as defined in the Company Credit Agreement) or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities (B) those agreements for short term bank borrowings listed on Section 4.2(e) of the Company or any of its Subsidiaries or any PersonDisclosure Schedule under the heading "Seminis Korea;" provided that in no event shall outstanding borrowings pursuant to clause (B) exceed $25 million, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice, ; (ii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; Person; (fiii) make any loans, advances or capital contributions to, or investments in, any other Person (other than any direct or indirect to wholly owned Subsidiaries of the Company) or make any change in its existing borrowing or lending arrangements for or on behalf of any such Person, whether pursuant to an employee benefit plan or otherwise; (iv) pledge or otherwise encumber shares of capital stock of the Company or any of its Subsidiaries; or (v) mortgage, pledge or otherwise encumber any of its material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon other than Permitted Liens in connection the ordinary course of business, consistent with past practice; (e) adopt a plan of complete or partial liquidation or adopt resolutions providing for the complete or partial liquidation, dissolution, consolidation, merger, restructuring or recapitalization of the Company or any of its Subsidiaries; (i) except as may be required by law or existing agreements, plans or arrangements as in effect as of the date hereof, or in the ordinary course of business consistent with past practice, pay, agree to pay, grant, issue or accelerate payments or benefits pursuant to any Benefit Plan in excess of the payments or benefits provided under such Benefit Plan as of the date hereof, (ii) except (A) for increases in the ordinary course of business consistent with past practice for employees other than officers and directors of the Company that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company’s retail products and , or (B) as required under existing agreements or in the ordinary course of business consistent with past practice, increase in any manner the salary or fees or benefits of any director, officer, consultant or employee, or (iii) except as may be required by law, amend (other retail activities than amendments made in the ordinary course of business consistent with past practice) or terminate any Benefit Plan or establish, adopt or enter into any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in excess existence as of $100,000the date of this Agreement; (g) acquire, sell, transfer, lease, encumber or dispose of any assets outside the ordinary course of business or any assets (other than inventory in the ordinary course consistent with past practice) that, in the aggregate, are material to the Company and its Subsidiaries taken as a whole, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice that would be material to the Company and its Subsidiaries taken as a whole; (h) except as may be required as a result of a change in law or in GAAP, change any of the financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind revalue in any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or respect any of its assets, including writing down the Company’s Subsidiaries after the Effective Date, value of inventory or (vii) give writing off notes or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, accounts receivable other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws acquire (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business)merger, consolidation, or grant acquisition of stock or assets) any material increases in the compensation corporation, partnership or benefits payable to its officers other business organization or directors division thereof or any equity interest therein; (except for increases in the ordinary course of business); (kii) enter into any collective bargaining, works council contract or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (agreement other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice that would be material to fund working the Company and its Subsidiaries taken as a whole; (iii) other than as contemplated by Section 6.3(j)(iii) of the Company Disclosure Schedule, authorize any new capital requirementsexpenditure or expenditures which, individually, is in excess of $500,000 or, in the aggregate, are in excess of $2,000,000; or (iv) enter into or amend any contract, agreement, commitment or arrangement providing for the taking of any action that would be prohibited under this clause (j).; (k) make any material Tax election, change any material method of Tax accounting or settle or compromise any material Tax liability of the Company or any of its Subsidiaries, and, in any event, the Company shall consult with Parent before filing or causing to be filed any material Tax Return of the Company or any of its Subsidiaries, except to the extent such Tax Return is filed in the ordinary course of business consistent with past practice, and before executing or causing to be executed any agreement or waiver extending the period for assessment or collection of any material Taxes of the Company or any of its Subsidiaries; (l) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or to the extent provided for in reserves specific to such claim, liability or obligation; (i) permit any insurance policy or policies naming it as a beneficiary or a loss payable payee, which policy or policies, individually or in the aggregate, is/are material to the Company and the Subsidiaries taken as a whole, to be canceled or terminated without notice to Parent unless the Company or one of its Subsidiaries shall have obtained a comparable replacement policy, or (ii) enter into any insurance policy or policies naming it as a beneficiary or a loss payable payee, which policy or policies, individually or in the aggregate, is/are material to the Company and the Subsidiaries taken as a whole; (n) except in the ordinary course of business consistent with past practice, (i) terminate, amend or modify (in any material respect), or waive any material provision of, any Material Contract, or (ii) amend, modify or change (in any material respect) any material policies or procedures governing product sales or returns or the treatment of accounts receivable; (o) settle or compromise any pending or threatened material suit, action or claim; (p) enter into any agreement containing any provision or covenant limiting in any material respect the ability of the Company or any of its Subsidiaries to (i) sell any products or services of or to any other Person, (ii) engage in any line of business, or (iii) compete with or obtain products or services from any Person or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries, in each case, in any geographic area or during any period of time; (i) terminate the employment of, materially change the terms or conditions of employment of, or, as set forth referenced by the Employee's waiver in the Employment Agreements, pay any severance amounts upon a voluntary termination of employment or "retirement" of, any of the individuals listed on Section 6.1(n6.3(q)(i) of the Company Disclosure LetterSchedule, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) amend or modify any other Legal Proceedingof the employment agreements listed on Section 6.3(q)(ii) of the Company Disclosure Schedule, or (iii) amend or modify any of the letter agreements listed on Section 6.3(q)(iii) of the Company Disclosure Schedule; or (or) offertake, or agree or commit, in writing or otherwiseotherwise to take, to take any of the foregoing actions. Notwithstanding the foregoing, nothing actions prohibited in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationsSections 6.3(a) through (q).

Conduct of Business of the Company. Except (a) as described in Section 6.1 5.1 of the Company Disclosure Letter Letter, (b) as required by applicable Law, (c) as consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed) or (d) as required or expressly provided for by this Agreement, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, (x) the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects business according to its ordinary and usual course of business consistent with past practicepractice (including with respect to Company Programs, in accordance with Company Program Requirements), and the Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its the business organization of the Company and its Subsidiaries, taken as a whole, and to preserve the present relationships with those Persons having business relationships with the Company or any of its Subsidiaries; providedSubsidiaries (including Regulatory Agencies and Company Program Parties) and to comply with and maintain all Permits (including Regulatory Permits) required to conduct its business and to own, howeverlease and operate its properties and assets, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in each case in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without clause (x), in all material respects and (y) without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)foregoing, the Company will not not, and will not permit any of its Subsidiaries to: (ai) except as set forth on Section 6.1(aadopt any amendments to the certificate of incorporation or bylaws (or similar governing documents) of the Company Disclosure Letter, or any of its Subsidiaries; (ii) issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise or settlement of the Company Options or vesting of and Company RSU Awards Awards, in all cases, outstanding on the date hereof and in accordance with their respective existing terms; (biii) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except other than (A) the acquisition by the Company of Company Shares in connection with the surrender of Company Shares by holders of Company Options outstanding on the date hereof in order to pay the extent provided exercise price of such Company Options, (B) the withholding of Company Shares to satisfy Tax obligations with respect to Company Equity Awards or (C) the acquisition by the Company of Company Equity Awards outstanding on the date hereof in connection with the terms forfeiture of any Company Stock Plansuch awards; (civ) split, combine, subdivide, combine or reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property stock or any combination thereofproperty) on any shares of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests); (dA) (i) make any acquisition or dispositionacquire, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalizationrecapitalization or other similar transaction, purchaseany (1) material assets, sale (2) services from contract manufacturing organizations or otherwise(3) ownership interest in any Person or any business or division thereof (other than, in one transaction each case, with respect to clauses (A)(1), (A)(2) and (A)(3), (I) capital expenditures in accordance with subclause (xii) below and (II) purchases of such services from contract manufacturing organizations or any series of related transactionsraw materials or supplies, in each case with respect to this clause (II), in the ordinary course of any material businessbusiness consistent with past practice and that do not exceed $100,000 in the aggregate), assets or securities or any sale(B) sell, lease, encumbrance license, transfer or otherwise dispose of, or subject to any Lien (other disposition of than Permitted Liens), any material assets or securities of the Company or any of its Subsidiaries (including the Company Intellectual Property Rights and shares in the capital stock of the Company or any Personof its Subsidiaries), in each case involving the payment except (1) dispositions of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or marketable securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities cash equivalents in the ordinary course of business consistent with past practice, (ii2) for sales of inventory or abandonments of obsolete or worn-out equipment in the ordinary course of business and consistent with past practice, (3) granting non-exclusive licenses where the grant of rights to use any Company Intellectual Property Rights are incidental, and not material to, any performance under each such agreement, and (4) with respect to Intellectual Property Rights, dispositions permitted by Section 5.1(y)(xv), or (C) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or ; (iiivi) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated therebysupply agreements; (evii) assumeincur, guarantee, endorse assume or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practiceindebtedness for borrowed money; (fviii) make any loans, advances (other than for ordinary course business expenses or pursuant to the Company’s certificate of incorporation) or capital contributions to, or investments in, any other Person (other than any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice) in excess of $100,000); (gix) change any financial accounting methods, principles or practices used by it, except as required by GAAP or applicable Law; (iA) change any annual Tax accounting periodperiod or method, (iiB) make, change or rescind revoke any material Tax election, (iiiC) amend settle or compromise any audit or proceeding in respect of any material Tax Liabilities, except any ordinary-course extension or waiver of an applicable statute of limitations, (D) file any material amended Tax Return, (iv) adopt or change any accounting method for Tax purposes, (vE) enter into any settlement “closing agreement” within the meaning of Section 7121 of the Code (or compromise any similar provision of state, local, or non-U.S. Law) with respect to any material Tax liabilityTax, agree to any adjustment of any material Tax attribute, or (F) surrender any right or to claim to a material Tax refund of Taxes, or (viG) enter into a closing agreement relating to any material Tax liability indemnification, sharing, allocation, reimbursement or that could bind the Company similar agreement, arrangement or any of the Company’s Subsidiaries after the Effective Date, or understanding (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or any customary Tax indemnification provisions in the ordinary course of business; (i) adopt any amendment commercial agreements or arrangements that are not primarily related to its certificate of incorporation or bylaws (or equivalent governing documentsTaxes); (jxi) grant any material severance or termination pay (other than except as required pursuant to a PlanPlan in existence as of the date hereof: (A) which will become due and payable on pay any amount or after the Effective Time (other than as required by applicable Law or in the ordinary course of business)benefit under, or grant or promise to grant any material increases awards under, any bonus, incentive, performance or other compensation plan, program, agreement or arrangement or Plan (including the grant of any Company Equity Award or other equity or equity-based awards or the removal or modification of any restrictions in any Plan or awards made thereunder); (B) provide for an increase in the compensation or benefits payable provided to its officers or directors (except for any Participant, other than increases in the ordinary course of business); business consistent with past practice for individuals with annualized base earnings of less than $200,000; (kC) enter into any collective bargainingestablish, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan or any collective bargaining or similar labor Contract (other than as required by applicable Lawthe entry into at-will offer letters); (D) accelerate the time of payment or vesting of any compensation, to reflect changes in plan administrationrights or benefits, or make any material determinations under any Plan; (E) take any action to fund or in any other way secure the payment of compensation or benefits under any Plan; (F) grant any Participant change of control, severance, retention or termination compensation or benefits or provide for any increase thereto; (G) terminate the employment of any employee of the Company or any of its Subsidiaries with annualized based earnings of $150,000 or higher, other than terminations for cause (as determined by the Company in the ordinary course of businessbusiness consistent with past practices); or (H) hire or promote any individual with annualized base earnings of $200,000 or higher, other than to replace a departed employee in the ordinary course of business consistent with past practice; (mxii) incur make or authorize any capital expenditure expenditure, or incur any obligations, Liabilities or indebtedness in respect thereof (thereof, except for (iA) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (iiB) any unbudgeted capital expenditure expenditure, in an amount not to exceed, in any year, in the aggregate, $500,000)250,000; (xiii) settle any suit, including any long-term debt action, claim, proceeding or short-term investigation other than a settlement solely for monetary damages (net of insurance proceeds received) not in excess of $100,000 individually or $200,000 in the aggregate; (xiv) except for short-term debt incurred in the ordinary course of business consistent with past practice or in connection with any transaction to fund working capital requirementsthe extent specifically permitted by any other subclause of this Section 5.1(y). , (nA) except as set forth on Section 6.1(n) of the Company Disclosure Letterenter into any Contract that would, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed if entered into prior to the date hereof hereof, be a Material Contract or a Real Property Lease, (B) materially modify, materially amend or terminate (other than expirations in accordance with its terms) any Material Contract or Real Property Lease or waive, release or assign any material rights or claims thereunder or (iiC) sublease or license any portion of Leased Real Property; (xv) except for the disposal of any Company Registered Intellectual Property at the end of its statutory life after all permitted renewals and extensions have been filed, abandon, cancel, allow to lapse, or fail to renew, maintain, diligently pursue applications for or defend any Company Registered Intellectual Property; (xvi) initiate, enter into any Contract related to or otherwise commit to undertake any new clinical trials, other Legal Proceedingthan exploratory clinical trials in indications that are agreed upon between Parent and the Company, or enter into any Contract related to any existing clinical trials; (xvii) adopt or implement any stockholder rights plan or similar arrangement; (xviii) exercise any options under any Collaboration Agreement relating to “co-funding”, “co-commercialization” or similar cost-and-profit participation rights (whether an exercise to “opt in” or “opt out” of such rights) with respect to any Company Product to which such Collaboration Agreement relates; (xix) grant any right to a third party to be a contract manufacturing organization for the Company or any of its Subsidiaries with respect to commercial supply of clinical materials or drug products (including key intermediates); or (oxx) offer, authorize, agree or commit, in writing or otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give ParentParent or Merger Sub, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Effective Time. Prior to the Acceptance Effective Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

Conduct of Business of the Company. Except as described in expressly required by this Agreement, as set forth on Section 6.1 5.2 of the Company Disclosure Letter Schedule or as expressly provided for required by this Agreementapplicable Law, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, unless Parent otherwise agrees in writing (which agreement will not be unreasonably withheld or delayed), the Company will conduct shall, and will shall cause each of its Subsidiaries to to, (x) conduct its operations business in all material respects according to its the ordinary and usual course of business consistent with past practice, and the Company will (y) use and will cause each of its Subsidiaries to use its commercially reasonable efforts efforts, under the circumstances, to maintain and preserve intact its business organization and to preserve the present relationships with goodwill of those Persons having significant business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentenceit. Without limiting the generality of the foregoing and foregoing, except as otherwise expressly provided for required by this Agreement, as set forth on Section 5.2 of the Company Disclosure Schedule or as required by applicable Law, during the period specified in from the preceding sentence, without date of this Agreement to the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Effective Time, the Company will not shall not, and will shall not permit any of its Subsidiaries to:, without the prior consent of Parent (which consent will not be unreasonably withheld or delayed): (a) except as set forth on Section 6.1(a(i) of the Company Disclosure Letter, authorize for issuance or issue, sell, grant options or rights to purchase, pledge, deliver, transfergrant, dispose of of, pledge or otherwise encumber any shares of its capital stock, voting securities or equity interests, or any securities or rights convertible into into, exchangeable or exchangeable exercisable for, or authorize evidencing the right to subscribe for any shares of its capital stock, voting securities or propose the issuanceequity interests, saleor any rights, grant warrants, options, calls, commitments or any other agreements of options or rights any character to purchase or pledge, deliver, transfer, or disposition or encumbrance of acquire any shares of its capital stock, voting securities or equity interests or any securities or rights convertible into into, exchangeable or exchangeable exercisable for, or evidencing the right to subscribe for, any shares of its capital stock, voting securities or equity interests, provided that the Company Securities or Subsidiary Securities, other than may issue shares of Company Shares issuable Common Stock upon the exercise of the Company Options or vesting of Company RSU Awards and RSUs that are outstanding on the date hereof of this Agreement and in accordance with their terms; the terms thereof; (bii) redeem, purchase or otherwise acquire any of its outstanding shares of capital stock, voting securities or redeem equity interests, or offer any rights, warrants, options, calls, commitments or any other agreements of any character to acquire any shares of its capital stock, voting securities or redeemequity interests; (iii) declare, directly set aside for payment or indirectlypay any dividend on, or amend make any Company Securitiesother distribution in respect of, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declareotherwise make any payments to its stockholders in their capacity as such (other than regular semi-annual dividends in cash or in kind on the Series B Preferred Stock at the rate of $25 per share per annum); (iv) split, set asidecombine, make subdivide or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) on reclassify any shares of its capital stock; or (v) amend (including by reducing an exercise price or extending a term) or waive any of its rights under any provision of the Company Stock Plans or any agreement evidencing any outstanding Option, RSU or other right to acquire capital stock (other than cash dividends paid to of the Company or one any restricted stock purchase agreement or any similar or related contract, except such vesting as required pursuant to employment agreements in effect on the date of its wholly owned Subsidiaries by a wholly owned Subsidiary of this Agreement, and except that the Company shall take such action as are necessary to comply with regard to its capital stock or other equity interests)Section 2.3 hereof; (db) incur or assume any indebtedness for borrowed money or guarantee any indebtedness for borrowed money (ior enter into a “keep well” or similar agreement) make or issue or sell any acquisition debt securities or dispositionoptions, warrants, calls or make any offer or agreement other rights to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or debt securities of the Company or any of its Subsidiaries Subsidiaries, other than (A) standby letters of credit under the Company’s existing credit agreement listed on Section 3.13(a) of the Company’ Disclosure Schedule to the extent required by Laws, provided that the Company shall have provided Parent with prompt notice of the issuance of such standby letters of credit, and (B) borrowings from the Company by a direct or indirect wholly-owned Subsidiary of the Company in the ordinary course of business consistent with past practice; (c) sell, transfer, lease, license, mortgage, encumber, abandon or otherwise dispose of or voluntarily permit to become subject to any Lien (including pursuant to a sale-leaseback transaction or an asset securitization transaction) any of its material properties or assets (including securities of Subsidiaries) to any Person, in each case involving the payment except (A) sales and non-exclusive licenses of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities services to customers in the ordinary course of business consistent with past practice, (iiB) adopt a plan dispositions of complete excess equipment or partial liquidationobsolete or worthless assets or sales of properties or assets (excluding securities of Subsidiaries) in an amount not in excess of $100,000 in the aggregate; (d) make any acquisition (by purchase of securities or assets, dissolution, recapitalization merger or restructuringconsolidation, or (iiiotherwise) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contractother Person, in a manner that would reasonably be expected to materially delay business or prevent the consummation of the Merger or any of the transactions contemplated therebydivision; (e) assumemake any investment (by contribution to capital, guaranteeproperty transfers, endorse or otherwise become liable or responsible (whether directly, contingently purchase of securities or otherwise) for in, or loan or advance (other than travel and similar advances to its employees in the obligations ordinary course of business consistent with past practice) to, any Person other Person in excess of $100,000 except any than a direct or indirect wholly owned Subsidiaries Subsidiary of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; (f) make any loansother than in the ordinary course of business consistent with past practice, advances enter into, terminate or capital contributions to, or investments in, any other Person amend (other than immaterial amendments) any direct Material Contract; (g) increase in any manner the compensation of any of its directors, officers or indirect wholly owned Subsidiaries employees or enter into, establish, amend, modify or terminate any employment, consulting, retention, change in control, collective bargaining, bonus or other incentive compensation, profit sharing, health or other welfare, stock option or other equity (or equity-based), pension, retirement, vacation, severance, deferred compensation or other compensation or benefit plan (including any plan that would constitute a Company Plan), policy, agreement, trust, fund or arrangement with, for or in respect of, any stockholder, director, officer, other employee, consultant or Affiliate, or enter into or make any loans or advances to directors, officers or employees (other than advances in the ordinary course of business consistent with past practice) other than (i) as required pursuant to applicable Law or the terms of any employment agreement or Company Plan existing as of the Company or date of this Agreement, (ii) increases in salaries, wages and benefits of employees (but not officers) made in the ordinary course of business consistent with past practice and in amounts and in a manner consistent with past practice and (iii) taking any such actions in connection with the Company’s retail products hiring and termination of employees (other retail activities than officers, as such term is used in Rule 16a-1(f) of the Exchange Act) in the ordinary course of business consistent with past practice; (h) make any changes (other than immaterial changes made in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial or tax accounting methods, principles principles, policies or practices used by it(or change an annual accounting period), except insofar as may be required by GAAP, the SEC, the Internal Revenue Service or applicable LawLaw (including published Tax guidance) or such changes in practices as may be made in connection with the Company’s efforts to enhance its and its Subsidiaries’ internal controls over financial reporting; (i) change any annual Tax accounting period, amend the Company Charter Documents or the Subsidiary Documents; (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (ivj) adopt a plan or change any accounting method for Tax purposesagreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization; (vk) enter into any settlement waive, release, assign, settle or compromise of any material Tax liabilityaction, agree to any adjustment of any material Tax attributeinvestigation, proceeding or surrender any right litigation instituted, commenced, pending or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind threatened against the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each easeits Subsidiaries, other than as required by applicable Law waivers, releases, assignments, settlements or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred compromises in the ordinary course of business consistent with past practice that involve only the payment of monetary damages by the Company and its Subsidiaries not in excess of $100,000 in the aggregate and that do not impose equitable relief or any restrictions on the business and operations of, on, or the admission of any wrongdoing by, the Company or any of its Subsidiaries; (l) enter into any license with respect to fund working capital requirements).Company Intellectual Property unless such license is non-exclusive and entered into in the ordinary course of business consistent with past practices; (m) permit any material item of Company Intellectual Property to become abandoned, cancelled, invalidated or dedicated to the public; (n) except as set forth on Section 6.1(n) make capital expenditures in any fiscal quarter in excess of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceeding$100,000; or (o) offer, agree or commitagree, in writing or otherwise, to take any of the foregoing actions. Notwithstanding actions or, subject to Section 5.3, take any action or agree, in writing or otherwise, to take any action, which would cause any of the foregoing, nothing conditions to the Merger set forth in this Agreement is intended not to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationsbe satisfied.

Conduct of Business of the Company. Except as described in Section 6.1 The Company shall, and shall cause each of the Company Disclosure Letter or as expressly provided for by this Agreementits Subsidiaries to, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, except as expressly contemplated by this Agreement or as required by applicable Law or with the Company will conduct and will cause each prior written consent of its Subsidiaries to Parent, conduct its operations business in all material respects according to its the ordinary and usual course of business consistent with past practice, and and, to the extent consistent therewith, the Company will use shall, and will shall cause each of its Subsidiaries to to, use its commercially reasonable best efforts to preserve substantially intact its and its Subsidiaries’ business organization organization, to keep available the services of its and its Subsidiaries’ current officers and employees, to preserve the its and its Subsidiaries’ present relationships with those customers, suppliers, distributors, licensors, licensees and other Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentenceit. Without limiting the generality of the foregoing foregoing, between the date of this Agreement and the Effective Time, except as otherwise expressly provided for required by this Agreementapplicable Law, during the period specified in the preceding sentenceCompany shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent Parent: (which consent shall not be unreasonably conditionedi) amend or propose to amend its certificate of incorporation or by-laws (or other comparable organizational documents); (ii) issue, withheld deliver, sell, pledge or delayed)encumber, or authorize, propose or agree to the issuance, delivery, sale, pledge or encumbrance of, any shares of the capital stock of the Company will not and will not permit or any of its Subsidiaries to: (a) except as set forth on Section 6.1(a) other than shares of the capital stock of the Company Disclosure Letterpursuant to the terms of any outstanding Company Stock Options), issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuanceoptions, salewarrants, grant of options calls, commitments or rights of any kind to purchase or pledgeacquire, deliver, transfer, or disposition or encumbrance of any shares of any class or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise series of the capital stock of the Company Options or vesting any of Company RSU Awards outstanding on the date hereof in accordance with their termsits Subsidiaries; (biii) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or any a combination thereof) on with respect to, or enter into any shares Contract with respect to the voting of, any of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests)stock; (div) reclassify, combine, split, subdivide or redeem, repurchase or otherwise acquire, directly or indirectly, any Company Securities; (iv) make any acquisition or disposition, or make any offer or agreement to acquire or dispose (including by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, acquisition of stock or assets) or make any investment in one transaction any Equity Interest in any Person or any series of related transactionsassets, of loans or debt securities thereof, acquire or divest any Real Property Leases or other interest in real estate or enter into or amend or modify any material businessContract, assets partnership, arrangement, joint development agreement or strategic alliance; (vi) repurchase, prepay or incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or any saleoptions, leasewarrants, encumbrance calls or other disposition of assets or rights to acquire any debt securities of the Company or any of its Subsidiaries or Subsidiaries, guarantee any debt securities of another Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice, (ii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or (iii) enter into a Material any “keep well” or other Contract or amend or terminate to maintain any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations financial statement condition of any other Person in excess (other than any wholly-owned Subsidiary of $100,000 except it) or enter into any direct or indirect wholly owned Subsidiaries arrangement having the economic effect of any of the foregoing; (vii) grant any Lien in any of its material assets to secure any indebtedness for borrowed money; (viii) enter into any new line of business outside of its existing business; (ix) pay, discharge, settle or satisfy any Liabilities, other than (i) performance of contractual obligations in accordance with their terms, or (ii) payment, discharge, settlement or satisfaction in accordance with their terms, of Liabilities that have been (a) disclosed in the most recent Company Financial Statements (or the notes thereto) included in connection with the Company’s retail products and other retail activities Company Securities Filings filed prior to the date hereof or contemplated by documents made available to Parent prior to the date hereof or (b) incurred since the date of such financial statements in the ordinary course of business consistent with past practice; (fx) make any loansadopt or enter into a plan of complete or partial liquidation, advances dissolution, merger, consolidation, restructuring, recapitalization or capital contributions to, or investments in, any other Person (other than any direct or indirect wholly owned Subsidiaries reorganization of the Company or any of its Subsidiaries (other than the Merger); (xi) institute, settle or compromise any Legal Actions pending or threatened before any arbitrator, court or other Governmental Entity, other than (i) any Legal Action brought against Parent or Merger Sub arising out of a breach or alleged breach of this Agreement by Parent or Merger Sub, and (ii) the settlement of claims, liabilities or obligations reserved against on the most recent balance sheet of the Company included in connection with the Company Securities Filings, in amounts not to exceed those so reserved; provided that neither the Company nor any of its Subsidiaries shall settle or agree to settle any Legal Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive impact on the Company’s retail products business; (xii) transfer, license, sell, lease or otherwise dispose of any material assets (whether by way of merger, consolidation, sale of stock or assets, or otherwise), including the capital stock or other equity interests in any Subsidiary of the Company, provided that the foregoing shall not prohibit the Company and other retail activities its Subsidiaries from transferring, licensing, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice) in excess of $100,000; (gxiii) change any financial accounting methods, principles or practices used by it, except as required by applicable Tax Law; (i) , make or change any annual Tax material election in respect of Taxes, adopt or change in any material respect any accounting periodmethod in respect of Taxes, (ii) make, change or rescind file any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company Return or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect amendment to a material Tax Return, enter into any closing agreement, settle any claim or assessment in respect of Taxes (except settlements effected solely through payment of immaterial sums of money), or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; (xiv) make any material change in any method of financial accounting principles or practices, in each ease, other than case except for any such change required by a change in GAAP or applicable Law; (xv) except as required by applicable Law or by any Company Employee Plan or Contract in effect as of the ordinary course date of business; this Agreement, (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in increase the compensation payable or benefits that could become payable by the Company or any of its Subsidiaries to its directors, officers or directors employees, (except for increases in the ordinary course of business); (kii) enter into any collective bargainingnew, works council or similar labor agreement; amend in any material respect any existing, employment, severance, retention or change in control agreement with any of its past or present officers or employees, (liii) promote any officers or employees, except as the result of the termination or resignation of any officer or employee, or (iv) establish, adopt, enter into, materially amend or terminate amend, terminate, exercise any material Plan (other than as required by applicable Law, to reflect changes in plan administrationdiscretion under, or in the ordinary course of business); (m) incur take any capital expenditure action to accelerate rights under any Company Employee Plans or any obligationsplan, Liabilities agreement, program, policy, trust, fund or indebtedness other arrangement that would be a Company Employee Plan if it were in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to existence as of the date of this Agreement and (ii) Agreement, or make any unbudgeted capital expenditure contribution to any Company Employee Plan, other than contributions required by Law, the terms of such Company Employee Plans as in an amount not to exceed, in any year, in effect on the aggregate, $500,000), including any long-term debt date hereof or short-term (except for short-term debt incurred that are made in the ordinary course of business consistent with past practice to fund working capital requirements).practice; (nxvi) except as set forth on in connection with actions permitted by Section 6.1(n) 6.4 hereof, take any action to exempt any Person from, or make any acquisition of securities of the Company Disclosure Letterby any Person not subject to, settle (i) any Legal Proceeding state takeover statute or similar statute or regulation that is disclosed in applies to the Company SEC Reports filed prior with respect to a Takeover Proposal or otherwise, including the date hereof restrictions on “business combinations” set forth in Section 203 of the DGCL, except for Parent, Merger Sub or (ii) any other Legal Proceedingof their respective Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; or (oxvii) offer, commit or agree or commit, in writing or otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, nothing actions described in this Agreement is intended Sections 6.1.1 (i) through 6.1.1(xvi) above or any action which would reasonably be expected to give Parent, directly or indirectly, the right to control or direct the business or operations result in any of the Company or its Subsidiaries at any time prior conditions to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationsMerger set forth in Article 7 not being satisfied.

Conduct of Business of the Company. (a) Except as described in Section 6.1 of the Company Disclosure Letter or as (i) expressly provided for required by this Agreement, (ii) expressly required to implement the Restructuring, taking into account the Bankruptcy Cases, or (iii) otherwise with the prior written consent of the Purchasers, during the period from the date of this the Prior Recapitalization Agreement and continuing until (as defined below) to the earlier of the termination of this Agreement or the Plan Effective TimeDate, the Company will conduct will, and will cause each of its Subsidiaries to to, conduct its operations only in all material respects according to its the ordinary and usual course of business consistent with past practice, practice and the Company will use its reasonable best efforts, and will cause each of its Subsidiaries to use its commercially reasonable efforts best efforts, to preserve intact its the business organization of the Company and each of its Subsidiaries, to keep available the services of its and their present officers and key employees and to preserve the present goodwill of those having business relationships with those Persons it, including maintaining existing relationships with suppliers, distributors, customers, licensors, employees and others having business relationships with the Company or any and each of its Subsidiaries; provided. (b) Except as expressly required by this Agreement, however, that no action by or otherwise with the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach prior written consent of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without Purchasers, without limiting the generality of the foregoing foregoing, and except as otherwise expressly provided for required by this Agreement, during Agreement or as set forth on Section 5.1 of the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Disclosure Letter, the Company will not not, and will not permit any of its Subsidiaries to, during the period from the date of the Prior Recapitalization Agreement (as defined below) to the Plan Effective Date: (ai) adopt any amendment to its articles of incorporation or bylaws or comparable organizational documents, except as set forth on Section 6.1(aexpressly contemplated by this Agreement or the Plan; (ii) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of of, pledge, hypothecate, grant a security interest in or otherwise encumber any capital stock or other securities owned by it in any of its Subsidiaries, except as expressly contemplated by the Plan; (iii) except as contemplated by the stock option plans of the Company described in Section 5.1(b)(iii) of the Disclosure Letter, (A) except as expressly contemplated by the Plan, issue, reissue or sell, or authorize the issuance, reissuance or sale of (1) shares of capital stock of any class, or securities convertible into capital stock of any class, or exchangeable any rights, warrants or options to acquire any convertible securities or capital stock or (2) any other securities in respect of, in lieu of, or in substitution for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Common Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof or (B) make any other changes in accordance with their termsits capital structure; (biv) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock, securities or property or any combination thereof) on in respect of any shares class or series of its capital stock (stock, other than cash ordinary dividend payments already scheduled, and except for dividends paid to the Company or one of its wholly owned Subsidiaries by a any wholly owned Subsidiary of the Company with regard to its capital stock the Company or other equity interests)another wholly owned Subsidiary of the Company; (dv) (i) make any acquisition or dispositionexcept as required under the Plan, or make in connection with any offer authorized stock plan of the Company described in Section 5.1(b)(iii) of the Disclosure Letter, split, combine, subdivide, reclassify or agreement redeem, purchase or otherwise acquire, or propose to acquire redeem or dispose by means purchase or otherwise acquire, any shares of a mergerits capital stock, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, its other securities; (vi) other than in the ordinary course of any material business, assets or securities as contemplated in the employee retention and bonus program described in Section 5.1(b)(vi) of the Disclosure Letter, or in any additional employee incentive plan approved by the Company’s executive committee of the Company Board, not exceeding in the aggregate US$500,000, (A) increase the compensation or benefits payable or to become payable to its current or former directors, officers or employees (whether from the Company or any saleof its Subsidiaries), lease(B) pay or award any payment or benefit not required by any existing Employment Agreement to any officer, encumbrance director or employee (including the granting of stock options), (C) grant any severance or termination pay to any officer or director of the Company or its Subsidiaries, (D) grant any severance or termination pay to any employee who is not an officer, other than grants of severance or termination pay in the ordinary course of business consistent with past practice that are required by the Federal Labor Law to such employees whose employment is terminated prior to the Plan Effective Date, (E) enter into any employment or severance agreement with, any director, officer or other disposition of assets or securities employee of the Company or any of its Subsidiaries or (F) establish, adopt, enter into, amend or waive any Personperformance or vesting criteria or accelerate vesting, exercisability or funding under any bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or current or former employees of the Company or its Subsidiaries (any of the foregoing being an “Employee Benefit Arrangement”), except, in each case involving case, to the payment extent required by applicable Law or the terms of consideration any existing Employee Benefit Arrangement (including consideration as such terms and arrangements existed as of the date hereof) described in the form Disclosure Letter as specifically requiring such an action; (vii) except as required under the Plan, mortgage, encumber, sell, transfer, lease, license or otherwise dispose of, or subject to any material Lien, any of assumption of Liabilities) of $100,000 its material assets, except pursuant to existing contracts or more commitments or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice, (ii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (eviii) acquire (whether by merger, consolidation, recapitalization, acquisition of stock or assets or any other form of transaction) any corporation, partnership or other business organization or division thereof, or form any Subsidiary; (ix) except to the extent not exceeding of US$2,500,000 or as required under the Plan, (A) incur, assume or pre-pay any Indebtedness (other than the issuance of letters of credit or draws on the Company’s revolving line of credit in the ordinary course of business consistent with past practice), (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 (including any Indebtedness), (C) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; practice and in accordance with their terms, (fD) other than in the ordinary course of business, make any loans, advances or capital contributions to, or investments in, any other Person Person, except for loans, advances, capital contributions or investments between any wholly owned Subsidiary of the Company and the Company or another wholly owned Subsidiary of the Company, (E) other than in the ordinary course of business, vary the Company’s payment, collection or inventory practices in any material respect from the Company’s past practices or (F) other than in the ordinary course of business, cancel or forgive any Indebtedness owed to the Company or any of its Subsidiaries; (x) except to the extent not exceeding of US$1,000,000 or except as would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect, (A) terminate, modify, renew or waive any material provision of any Company Material Contract other than normal renewals of such Company Material Contracts without materially adverse changes, additions or deletions of terms or (B) enter into or renew any agreement, contract, lease, license or other binding obligation of the Company or its Subsidiaries (i) containing (1) any limitation or restriction on the ability of the Company or its Subsidiaries to engage in any type of activity or business, (2) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of the Company or its Subsidiaries, is or would be conducted or (3) any limit or restriction on the ability of the Company or its Subsidiaries, to solicit customers or employees, or (ii) that would reasonably be expected to materially delay or prevent the consummation of the Restructuring or any of the transactions contemplated by this Agreement; (xi) alter in any material respect, or enter into any commitment to alter in any material respect, any interest material to the Company and its Subsidiaries, taken as a whole, in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any equity or ownership interest on the date hereof (other than any direct interest arising from any foreclosure, settlement in lieu of foreclosure or indirect wholly owned Subsidiaries of the Company troubled loan or in connection with the Company’s retail products and other retail activities debt restructuring in the ordinary course of business consistent with past practice) in excess of $100,000); (gxii) permit any insurance policy naming the Company or any of its Subsidiaries as a beneficiary or a loss payable payee to lapse, be cancelled or expire unless a new policy with substantially identical coverage is in effect as of the date of lapse, cancellation or expiration; (xiii) other than in the ordinary course of business, make or change any material Tax elections unless required by applicable Law, file any material amended Tax Return, enter into any material closing agreement with respect to Taxes, settle or compromise any material liability with respect to Taxes, agree to any material adjustment of any Tax attribute, file any material claim for a refund of Taxes or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment; (xiv) change in any material respect its Tax or financial accounting methodsmethods (or underlying assumptions), principles or practices used by itaffecting its assets, liabilities or business, in each case, in effect on the date hereof, except as required by changes in regulatory financial accounting principles or changes in the governing provisions of the Tax Law; (xv) take any action that would result in (a) any of its representations or warranties set forth in this Agreement being or becoming untrue in any respect at any time prior to the Plan Effective Date in any manner that would cause the conditions set forth in Section 6.2 hereof to not be satisfied, (b) a material violation of any provision of this Agreement or (c) the prevention or material delay of the consummation of the Tender Offer, the Capital Contribution, the Restructuring or any of the other transactions contemplated by this Agreement, except, in each of the foregoing cases, as may be required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (mxvi) incur any capital expenditure expenditures or enter into any obligationsagreement obligating the Company or its Subsidiaries to provide for future capital expenditures, Liabilities or indebtedness except in respect thereof (except for (i) those contemplated by a manner substantially consistent with the capital expenditure budget expenditures projected for in the relevant fiscal year, which capital expenditure budget has been provided or 2013 projections made available to Parent prior to the date of this Agreement and Purchasers on June 15, 2013; (iixvii) any unbudgeted capital expenditure in an amount not to exceed, in any year, except as described in the aggregateDisclosure Letter, $500,000)waive, including release, assign, initiate, pay, discharge, settle or compromise any long-term debt pending or short-term threatened claim, action, litigation, arbitration or proceeding other than (except for short-term debt incurred A) in the ordinary course of business consistent with past practice practice, (B) for solely money damages not in excess of US$100,000 individually or US$250,000 in the aggregate and (C) as would not reasonably be expected to fund working capital requirements).have any Material Adverse Effect on any other pending or potential claims, actions, litigation, arbitration or proceedings; (nxviii) except as set forth on Section 6.1(n) for the Plan, propose or adopt a plan of the Company Disclosure Lettercomplete or partial liquidation, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof dissolution, merger, consolidation, restructuring, recapitalization or (ii) any other Legal Proceeding; or (o) offer, agree or commit, in writing or otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations reorganization of the Company or any of its Subsidiaries at Subsidiaries; (xix) (A) hire new employees with an annual base salary in excess of US$150,000, or (B) plan, announce, implement or effect any time prior to reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the Acceptance Time. Prior to the Acceptance Time, termination of employment of employees of the Company and or any Subsidiary of the Company in excess of 10% of the current employee base of the Company; (xx) agree to take, make any commitment to take, or adopt any resolutions of its Subsidiaries shall exerciseboard of directors in support of, consistent with any of the terms and conditions of actions prohibited by this Agreement, complete control and supervision over their own business and operationsSection 5.1.

Conduct of Business of the Company. Except as described in Section 6.1 of the Company Disclosure Letter or as expressly provided for in or contemplated by this Agreement, during the period from the date of this Agreement and continuing until to the earlier of (i) the termination date on which a majority of this Agreement the Company’s directors are designees of Parent or Purchaser and (ii) the Effective Time, the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, practice and the Company will use use, and will cause each of its Subsidiaries to use use, its commercially reasonable best efforts to preserve intact its business organization organization, to keep available the services of its current officers and employees, and to preserve the present goodwill of and maintain satisfactory relationships with those Persons having business relationships with the Company or any of and its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for in or contemplated by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditionedwithheld, withheld conditioned or delayed), the Company will not and will not permit any of its Subsidiaries to: (a) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance pledge of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards Restricted Shares outstanding on the date hereof in accordance with their termshereof; (b) acquire or redeem or offer to other than transactions among the Company and its wholly owned Subsidiaries, acquire or redeem, directly or indirectly, or amend any Company Securities or Subsidiary Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, combine or reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property stock or any combination thereofproperty) on any shares of its capital stock (other than cash dividends paid to the Company or one of by its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its their capital stock or other equity interestsstock); (d) (i) make any acquisition or disposition, or offer to make any offer or agreement to acquire or dispose acquisition, by means of a merger, consolidation, recapitalization, purchase, sale recapitalization or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities (other than any acquisition of assets in the ordinary course of business consistent with past practice) or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Personsecurities, in each case involving the payment or receipt of consideration (including consideration in the form of assumption of Liabilities) of $100,000 1,000,000 or more more, except for purchases or the disposition sales of assets inventory, raw materials or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities supplies in the ordinary course of business and consistent with past practice, (ii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, restructuring or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver release or relinquishment of any material rights under or terminate any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or capital leases other than (i) short-term indebtedness incurred in the ordinary course of business consistent with past practice and (ii) indebtedness incurred under existing revolving credit facilities (provided, that the aggregate amount outstanding under any such facilities shall not exceed $60,000,000); (f) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; (fg) make any loans, advances or capital contributions to, or investments in, any other Person (other than any direct or indirect wholly owned Subsidiaries of the Company Company); (h) change in any material respect any of the accounting methods, principles or in connection with the Company’s retail products and practices used by it except as required by GAAP; (i) make, rescind or change any material Tax election (other retail activities than in the ordinary course of business consistent with past practice), extend the statute of limitations (or file any extension request) in excess of $100,000with any Tax authority, file or amend any federal, foreign, state or local Tax return, or settle or compromise any material federal, foreign, state or local income Tax liability; (gj) change any financial accounting methods, principles propose or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment amendments to its certificate Certificate of incorporation Incorporation or bylaws Bylaws (or equivalent similar governing documents); (jk) agree to grant or grant any material severance stock-related, cash-based, performance or termination pay similar awards or bonuses; (l) forgive any loans to any employees, officers or directors or any of their respective Affiliates or Associates; (m) (i) enter into any new, or amend, terminate or renew any existing, employment, severance, consulting or salary continuation agreements with or for the benefit of any employees, officers or directors, other than pursuant to a Plan) which will become due and payable on or after than, in the Effective Time (other than as required by applicable Law or case of an employee who is not an officer, in the ordinary course of business)business consistent with past practice, or (ii) grant any material increases in the compensation or benefits payable to its officers, directors and employees (other than normal increases to Persons who are not officers or directors (except for increases in the ordinary course of businessbusiness consistent with past practices and that, in the aggregate, do not result in a material increase in benefits or compensation expense of the Company); (kn) enter into terminate any collective bargainingofficer, works council except where (i) the termination is for cause, as such term is defined in each Plan pursuant to which such officer may be entitled to any payments or similar labor agreementbenefits upon or as a result of such termination, (ii) the officer does not become entitled to receive or receive any such payments or benefits, other than with respect to accrued base salary or vacation or pursuant to vested benefits under a qualified pension plan, and (iii) the Company notifies Parent within a reasonable period following such termination, such period not to exceed three Business Days; (lo) adopt, enter into, materially amend make any deposits or terminate contributions of cash or other property to or take any material Plan (other than as required by applicable Law, action to reflect changes in plan administration, fund or in any other way secure the ordinary course payment of business)compensation or benefits under the Plans or agreements subject to the Plans or any other plan, agreement, contract or arrangement of the Company; (mp) incur any capital expenditure or any obligations, Liabilities liabilities or indebtedness in respect thereof (thereof, except for (i) those contemplated by the capital expenditure budget budgets for the relevant fiscal yearyears 2007 and 2008, which capital expenditure budget has budgets have been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure relating to the fiscal year 2007 or 2008, in an amount not to exceed, exceed in any each year, in the aggregateaggregate $1,000,000; (q) enter into, $500,000)amend, or extend any collective bargaining or other labor agreement; (r) except as permitted by clause (m) above, adopt, amend or terminate any Plan or any other bonus, severance, insurance pension or other employee benefit plan or arrangement except as required by law; (s) settle or agree to settle any suit, action, claim, proceeding or investigation (including any long-term debt suit, action, claim, proceeding or short-term investigation relating to this Agreement or the transactions contemplated hereby) or pay, discharge or satisfy or agree to pay, discharge or satisfy any claim, liability or obligation (except for short-term debt absolute or accrued, asserted or unasserted, contingent or otherwise) other than the payment, discharge or satisfaction of liabilities reflected or reserved against in full in the financial statements as at December 31, 2006 or incurred in the ordinary course of business consistent with past practice subsequent to fund working capital requirements).that date; (nt) except as set forth on Section 6.1(nconvene any regular or special meeting (or any adjournment thereof) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in stockholders of the Company SEC Reports filed prior to other than the date hereof Special Meeting contemplated by Section 2.08; or (iiu) any other Legal Proceeding; or (o) offer, agree or commit, in writing or otherwise, otherwise to take any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

Conduct of Business of the Company. Except as described in Section 6.1 of the Company Disclosure Letter or as expressly provided for by this Agreement, during During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement (in accordance with its terms) or the Effective Time, the Company will conduct shall, and will shall cause each of its Subsidiaries Subsidiaries, except as expressly permitted or required by this Agreement, as required by applicable Law, or with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed), to use its reasonable best efforts to conduct its operations business in all material respects according to its in the ordinary and usual course of business consistent with past practicepractice in all material respects, and, to the extent consistent therewith, the Company shall, and the Company will use and will shall cause each of its Subsidiaries to to, use its commercially reasonable best efforts to preserve intact its business organization and to preserve the its Subsidiaries’ present relationships with those customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentenceit. Without limiting the generality of the foregoing foregoing, between the date of this Agreement and the Effective Time, except as otherwise expressly provided for permitted or required by this Agreement, during or as required by applicable Law, the period specified in the preceding sentenceCompany shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries to:): (a) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize amend or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their termsamend its Charter Documents; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (ci) split, combine, subdivideor reclassify any Company Securities or Company Subsidiary Securities, reclassify (ii) repurchase, redeem, or otherwise amend the terms of acquire, or offer to repurchase, redeem, or otherwise acquire, any shares of its capital stock Company Securities or Company Subsidiary Securities, or (iii) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property property, or otherwise) in respect of, or enter into any combination thereof) on Contract with respect to the voting of, any shares of its capital stock (other than cash dividends paid to the Company from its direct or one of its indirect wholly owned Subsidiaries by a wholly owned Subsidiaries); (c) issue, sell, pledge, dispose of, or encumber any Company Securities or Company Subsidiary Securities, other than the issuance of shares of Company Common Stock upon the exercise of any Company Equity Award outstanding as of the Company date of this Agreement in accordance with regard to its capital stock or other equity interests)terms; (d) except as required by applicable Law or by any Company Employee Plan or Contract in effect as of the date of this Agreement (i) make any acquisition increase the compensation payable or disposition, or make any offer or agreement to acquire or dispose that could become payable by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries to directors, officers, or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000employees, other than any acquisition, disposition, sale, lease or encumbrance of assets related increases in compensation made to the Company’s retail products and other retail activities non-officer employees in the ordinary course of business consistent with past practice, (ii) adopt a plan of complete promote any officers or partial liquidationemployees, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and annual or quarterly compensation review cycle or as the result of the termination or resignation of any officer or employee, or (iii) establish, adopt, enter into, amend, terminate, exercise any discretion under, or take any action to accelerate rights under any Company Employee Plans or any plan, agreement, program, policy, trust, fund, or other retail activities arrangement that would be a Company Employee Plan if it were in existence as of the date of this Agreement, or make any contribution to any Company Employee Plan, other than contributions required by Law, the terms of such Company Employee Plans as in effect on the date hereof, or that are made in the ordinary course of business consistent with past practice; (fe) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances advances, or capital contributions toto or investments in any Person in excess of $75,000 in the aggregate; (f) (i) transfer, license, sell, lease, or investments inotherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber, mortgage, or otherwise subject to any other Person Lien (other than a Permitted Lien), any direct assets, including the capital stock or indirect wholly owned Subsidiaries other equity interests in any Subsidiary of the Company; provided, that the foregoing shall not prohibit the Company and its Subsidiaries from transferring, selling, leasing, or disposing of obsolete equipment or assets being replaced, or granting non-exclusive licenses under the Company IP, in connection with the Company’s retail products and other retail activities each case in the ordinary course of business consistent with past practice, or (ii) in excess adopt or effect a plan of $100,000complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization; (g) change repurchase, prepay, or incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or options, warrants, calls, or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any “keep well” or other Contract to maintain any financial statement condition of any other Person (other than any wholly owned Subsidiary of it) or enter into any arrangement having the economic effect of any of the foregoing, other than in connection with the financing of ordinary course trade payables consistent with past practice; (h) enter into or amend or modify in any material respect, or consent to the termination of (other than at its stated expiry date), any Company Material Contract or any Lease with respect to material Leased Real Estate or any other Contract or Lease that, if in effect as of the date hereof would constitute a Company Material Contract or Lease with respect to material Leased Real Estate hereunder; (i) institute, settle, or compromise any Legal Action involving the payment of monetary damages by the Company or any of its Subsidiaries of any amount exceeding $75,000 in the aggregate, other than (i) any Legal Action brought against Parent or Merger Sub arising out of a breach or alleged breach of this Agreement by Parent or Merger Sub, and (ii) the settlement of claims, liabilities, or obligations reserved against on the Company Balance Sheet; provided, that neither the Company nor any of its Subsidiaries shall settle or agree to settle any Legal Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive impact on the Company’s business; (j) make any material change in any method of financial accounting methods, principles or practices used by itpractices, in each case except as for any such change required by a change in GAAP or applicable Law; (k) (i) settle or compromise any material Tax claim, audit, or assessment for an amount materially in excess of the amount reserved or accrued on the Company Balance Sheet (or most recent consolidated balance sheet included in the Company SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, (ii) make, or adopt or change or rescind any material method of Tax electionaccounting, (iii) amend any material Tax ReturnReturns or file claims for material Tax refunds, or (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of material closing agreement, surrender in writing any right to claim a material Tax liabilityrefund, agree offset or other reduction in Tax liability or consent to any adjustment extension or waiver of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating the limitation period applicable to any material Tax liability claim or that could bind assessment relating to the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreementSubsidiaries; (l) adopt, enter into, materially amend or terminate into any material Plan (other than as required by applicable Lawagreement, to reflect changes agreement in plan administrationprinciple, letter of intent, memorandum of understanding, or in the ordinary course of business)similar Contract with respect to any joint venture, strategic partnership, or alliance; (m) incur except in connection with actions permitted by Section 5.04 hereof, take any capital expenditure action to exempt any Person from, or make any acquisition of securities of the Company by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Company with respect to a Takeover Proposal or otherwise, including the restrictions on “business combinations” set forth in Section 203 of the DGCL, except for Parent, Merger Sub, or any obligationsof their respective Subsidiaries or Affiliates, Liabilities or indebtedness in respect thereof (except for (i) those the transactions contemplated by the capital expenditure budget for the relevant fiscal yearthis Agreement; (n) abandon, which capital expenditure budget has been provided allow to lapse, sell, assign, transfer, grant any security interest in otherwise encumber or made available dispose of any Company IP, or grant any right or license to Parent prior any Company IP other than pursuant to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any longnon-term debt or short-term (except for short-term debt incurred exclusive licenses entered into in the ordinary course of business consistent with past practice to fund working capital requirements).practice; (no) except as set forth on Section 6.1(nterminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; (p) engage in any transaction with, or enter into any agreement, arrangement or understanding with, any Affiliate of the Company Disclosure Letter, settle or other Person covered by Item 404 of Regulation S-K promulgated by the SEC that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC; (iq) adopt or implement any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof stockholder rights plan or (ii) any other Legal Proceedingsimilar arrangement; or (or) offer, agree or commit, in writing or otherwise, commit to take do any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

Conduct of Business of the Company. Except as described in Section 6.1 of the The Company Disclosure Letter or as expressly provided for by this Agreementagrees that, during the period from between the date of this Agreement and continuing until the earlier Effective Time, except as set forth in Section 6.1.1 of the termination Company Disclosure Schedule, as otherwise permitted or contemplated by this Agreement (including this Section 6.1), as required by applicable Law or the regulations or requirements of NASDAQ, or as consented to in writing by Parent (such consent not to be unreasonably conditioned, delayed or withheld), the Company will, and will cause each Company Subsidiary to, in all material respects (it being understood that in no event shall the Company’s participation in the negotiation (including activities related to due diligence), execution, delivery, public announcement or pendency of this Agreement or any of the transactions contemplated herein or any actions taken in compliance herewith or otherwise with the consent of Parent (including the impact thereof on the relationships of the Company or the Company Subsidiaries with customers, suppliers, distributors, consultants, employees or independent contractors or other Third Parties with whom the Company or any Company Subsidiary has any relationship), be considered a breach of any of the provisions of this Section 6.1), conduct its business in the ordinary course consistent with past practice. Without limiting the foregoing, except as set forth in Section 6.1.1 of the Company Disclosure Schedule, as otherwise permitted or contemplated by this Agreement (including this Section 6.1), as required by applicable Law or as consented to in writing by Parent (such consent not to be unreasonably conditioned, delayed or withheld), the Company shall not, and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, the Company will conduct and will cause each of its Subsidiaries directly or indirectly, do, or agree to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practicedo, and the Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization and to preserve the present relationships with those Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries tofollowing: (a) except as set forth on Section 6.1(a) amend or otherwise change any material provision of the Company Disclosure LetterCertificate, the Company Bylaws or equivalent organizational or governing documents of the Company Subsidiaries; (b) issue, deliver, sell, grant options pledge or rights encumber, or authorize, propose or agree to purchasethe issuance, pledgedelivery, deliversale, transferpledge or encumbrance of, dispose of or encumber any shares of the capital stock of the Company or any Company Subsidiary, or securities convertible into or exchangeable for, or authorize or propose the issuanceoptions, salewarrants, grant of options calls, commitments or rights of any kind to purchase or pledgeacquire, deliver, transfer, or disposition or encumbrance of any shares of any class or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise series of the capital stock of the Company Options or vesting any Company Subsidiary (other than (i) pursuant to the requirements of Contracts of the Company RSU Awards outstanding or any Company Subsidiary and of the Company Benefit Plans, in each case as in existence on the date hereof in accordance with their terms; and (bii) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except pursuant to the extent vesting and/or exercise of Company Options, Company Stock-Based Awards, warrants, conversion rights and other contractual rights that are (A) in existence on the date hereof or (B) granted or issued after the date hereof pursuant to clause (i) of this parenthetical; provided in that the terms number of any shares permitted to be issued under clauses (i) and (ii) of this parenthetical shall not exceed the number of shares shown on Section 6.1.1(b) of the Company Stock PlanDisclosure Schedule as potentially issuable under such Contracts, benefit plans, options, awards, warrants, conversion rights or other contractual rights); (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or any a combination thereof) on with respect to any shares of its capital stock (other than cash dividends paid by a wholly-owned Company Subsidiary to the Company or one of its wholly to any other wholly-owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interestsSubsidiary); (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock (other than pursuant to the exercise of Company Options, Company Stock-Based Awards, warrants, conversion rights, employee severance, retention, termination, change of control and other contractual rights (i) make any acquisition in existence on the date hereof or disposition, (ii) granted or make any offer or agreement to issued after the date hereof in accordance with this Agreement); (e) acquire or dispose (including by means of a merger, consolidation, recapitalizationor acquisition of stock or assets) or make any investment in any Equity Interest in any Person or any assets, purchaseloans or debt securities thereof; (f) incur any indebtedness for borrowed money or issue any debt securities or assume, sale guarantee or otherwiseendorse, or otherwise as an accommodation become responsible for, the indebtedness of any Person (other than a wholly-owned Company Subsidiary) for borrowed money, except for (i) indebtedness incurred under the Company’s existing credit facilities in the ordinary course of business, together with any indebtedness incurred pursuant to clause (ii), not in excess of $5,000,000 in the aggregate for the Company and the Company Subsidiaries taken as a whole, (ii) indebtedness for borrowed money in a principal amount, together with any indebtedness incurred pursuant to clause (i), not in excess of $5,000,000 in the aggregate for the Company and the Company Subsidiaries taken as a whole, (iii) indebtedness owing by any wholly-owned Company Subsidiary to the Company or any other wholly-owned Company Subsidiary, (iv) indebtedness incurred to refinance any existing indebtedness in an amount not to exceed, and on terms no less favorable in the aggregate than, such existing indebtedness and (v) ordinary advances to employees for expenses; (g) grant any Lien in any of its material assets to secure any indebtedness for borrowed money, except in connection with indebtedness permitted under Section 6.1.1(f); (h) enter into any new line of business outside of its existing business segments that is material to the Company and the Company Subsidiaries, taken as a whole; (i) adopt or amend any material Company Benefit Plan, increase in any material manner the compensation or fringe benefits of any director, officer or employee of the Company or pay any material benefit not provided for by any existing Company Benefit Plan, in one transaction each case except (i) as reasonably necessary to comply with applicable Law, (ii) in the ordinary course of business (including to address the requirements of written agreements or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities Contracts of the Company or any Company Subsidiary in existence on the date hereof), (iii) in connection with entering into or extending any offer letters or employment or other compensatory agreements with individuals other than executive officers (as such term is defined in Rule 3b-7 of its Subsidiaries the Exchange Act) or directors of the Company or any Person, in each case involving the payment of consideration (including consideration Company Subsidiary in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products customary and other retail activities in the ordinary course of business consistent with past practice, (iv) in connection with entering into any retention agreements or programs determined by the Company Board (or, if appropriate, any committee thereof) to be reasonably necessary in order to maintain its business operations prior to, and extending through, the Effective Time for the benefit of individuals other than executive officers (as such term is defined in Rule 3b-7 of the Exchange Act); provided that any payments thereunder shall not exceed $2,000,000 in the aggregate, (v) general salary increases in the ordinary course of business, (vi) the termination or amendment of any Company Benefit Plan that may be subject to Code Section 409A consistent with Code Section 409A and any guidance issued thereunder and (vii) that do not materially increase the cost to the Company or any Company Subsidiary of maintaining the applicable Benefit Plan; (j) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than (i) performance of contractual obligations in accordance with their terms, (ii) payment, discharge, settlement or satisfaction in the ordinary course of business or (iii) payment, discharge, settlement or satisfaction in accordance with their terms, of claims, liabilities or obligations that have been (A) disclosed in the most recent Company Financial Statements (or the notes thereto) included in the Company SEC Filings filed prior to the date hereof or contemplated by documents made available to Parent prior to the date hereof or (B) incurred since the date of such financial statements in the ordinary course of business; (k) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or restructuring, other reorganization of the Company or any Company Subsidiary (iiiother than the Merger or among wholly-owned Subsidiaries); or (l) enter into a Material Contract knowingly commit or amend agree to take any of the actions described in Sections 6.1.1 (a) through 6.1.1(k) above or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that action which would reasonably be expected to materially delay or prevent the consummation of the Merger or result in any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice; (f) make any loans, advances or capital contributions to, or investments in, any other Person (other than any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior conditions to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as Merger set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceeding; or (o) offer, agree or commit, in writing or otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationsArticle 7 not being satisfied.

Conduct of Business of the Company. Except as described in Section 6.1 of the Company Disclosure Letter required by applicable Laws or as expressly provided for contemplated by this Agreement, during the period from the date of this Agreement and continuing until hereof to the earlier of the Effective Time or the termination of this Agreement or the Effective Timein accordance with Article VIII, the Company will conduct will, and will cause each of its Subsidiaries to to, conduct its operations in all material respects according to its the ordinary and usual course of business consistent with past practicepractice and, and to the Company will extent consistent therewith, use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its current business organization organizations, keep available the service of its current officers and to employees and preserve the present its relationships with those Persons customers, suppliers and others having business relationships dealings with it. Without limiting the generality of the foregoing, and except as required by applicable Laws, as otherwise contemplated in this Agreement or the Company Disclosure Schedule or as required by an existing agreement of the Company or any of its Subsidiaries; provided, however, that no action by from the Company date hereof until the earlier of the Effective Time or its Subsidiaries with respect to matters addressed by any provision the termination of this Section 6.1 shall be deemed a breach of the covenants contained Agreement in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)accordance with Article VIII, the Company will not and will not permit any of its Subsidiaries to, without the prior written consent of Parent, which shall not be unreasonably withheld, delayed or conditioned: (a) except as set forth on Section 6.1(aamend its memorandum and articles of association (or other similar governing instrument); (b) of the Company Disclosure Letterauthorize for issuance, issue, sell, grant options pledge, dispose of, transfer, deliver or rights agree or commit to purchaseissue, sell, pledge, deliverdispose of, transfertransfer or deliver (whether through the issuance or granting of options, dispose of warrants, commitments, subscriptions, rights to purchase or encumber otherwise) any shares of share capital or any other securities convertible into or exchangeable forfor any share capital or any equity equivalents (including, or authorize or propose the issuancewithout limitation, sale, grant of any stock options or rights to purchase or pledgestock appreciation rights), deliver, transfer, or disposition or encumbrance except for the issuance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable as required to be issued upon exercise or settlement of the Company Options or vesting of and Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock PlanRestricted Shares; (c) (i) split, combine, subdivide, subdivide or reclassify or otherwise amend the terms of any shares of its capital stock or share capital; (ii) declare, set aside, make aside or pay any dividend or other distribution (whether in cash, stock, stock or property or any combination thereof) on any shares in respect of its capital stock share capital; (other than cash dividends paid iii) enter into any agreement with respect to the Company or one voting of its wholly owned Subsidiaries share capital; (iv) make any other actual, constructive or deemed distribution in respect of any of its share capital or otherwise make any payments to shareholders in their capacity as such; or (v) redeem, repurchase or otherwise acquire any of its share capital, except (A) the share repurchase program to repurchase up to US$50,000,000 worth of Company ADSs which was announced on March 10, 2011 and furnished to the XXX xx Xxxx 0-X xx Xxxxx 00, 0000, (X) the withholding of Company’s securities to satisfy Tax obligations with respect to Company Options and Company Restricted Shares or (C) the acquisition by a wholly owned Subsidiary of the Company of its securities in connection with regard to the forfeiture of Company Options and Company Restricted Shares or (D) the acquisition by the Company of its capital stock securities in connection with the net exercise of Company Options or other equity interests)Company Restricted Shares in accordance with the terms thereof; (d) (i) make any acquisition or disposition, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of place the Company or any of its Subsidiaries into liquidation, dissolution, scheme of arrangement, merger, consolidation, restructuring, recapitalization or any Person, in each case involving the payment of consideration other reorganization (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than the Merger); (e) alter through merger, liquidation, reorganization, restructuring or in any acquisition, disposition, sale, lease other fashion the corporate structure or encumbrance ownership of assets related to any of the Company’s retail products and other retail activities Subsidiaries, except in the ordinary and usual course of business consistent with past practice, (ii) adopt a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (ef) (i) incur, modify, renew or assume any long-term or short-term debt or issue any debt securities in an amount exceeding US$50,000,000 in the aggregate, except for borrowings under existing lines of credit in the ordinary and usual course of business consistent with past practice; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 person, except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary and usual course of business consistent with past practice; , and except for guarantees of obligations of Wholly Owned Subsidiaries of the Company; (fiii) make any loans, advances or capital contributions to, or investments in, any other Person person (other than any direct to Wholly Owned Subsidiaries of the Company), except in the ordinary and usual course of business consistent with past practice; (iv) pledge or indirect wholly owned Subsidiaries otherwise encumber shares of capital stock of the Company or its Subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any Lien thereupon other than Permitted Liens; (g) acquire, sell, lease or dispose of any assets for consideration exceeding US$50,000,000 in connection the aggregate; (h) revalue in any material respect any of its assets, including, without limitation, writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary and usual course of business consistent with past practice or as required by GAAP; (i) (i) acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any equity interest therein, if such acquisition would be material to the Company, except for acquisitions with consideration not exceeding US$25,000,000 in the aggregate; or (ii) authorize any new capital expenditure or expenditures, except as specifically budgeted in the Company’s retail products and other retail activities current plan approved by the Company Board that was made available to Parent, which, in the aggregate, are in excess of US$20,000,000; (j) settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated hereby; or (k) grant any increases in the compensation of the Company’s officers or directors, except for increases in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial accounting methods, principles or practices used by it, and except as required by this Agreement or applicable Law; , (i) change grant or increase any annual Tax accounting periodseverance, (ii) make, change termination or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the similar compensation or benefits payable to its officers any director or directors officer, (except for increases in ii) accelerate the ordinary course time of business); payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Company Benefit Plan, or (kiii) enter into into, terminate or materially amend any collective bargainingCompany Benefit Plan (or any plan, works council program, agreement, or similar labor agreement;arrangement that would constitute a Company Benefit Plan if in effect on the date hereof); or (l) adopttake, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, propose to reflect changes in plan administrationtake, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceeding; or (o) offer, agree or commit, in writing or otherwiseotherwise to take, to take any of the foregoing actions. Notwithstanding the foregoing, nothing actions described in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationsSection 5.1(a) through Section 5.1(k).

Conduct of Business of the Company. Except as described (a) Unless the Purchaser shall otherwise consent in Section 6.1 of the Company Disclosure Letter writing (such consent not to be unreasonably withheld, conditioned or as expressly provided for by this Agreementdelayed), during the period from the date of this Agreement and continuing until the earlier of the termination of Interim Period, except as expressly contemplated by this Agreement or the Effective Time, the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and the Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization and to preserve the present relationships with those Persons having business relationships with the Company Ancillary Documents or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries to: (a) except as set forth on Section 6.1(a) of Schedule 5.2, the Company Disclosure Lettershall, issueand shall cause its Subsidiaries to, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) on any shares of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests); (d) (i) make any acquisition or disposition, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwiseconduct their respective businesses, in one transaction or any series of related transactionsall material respects, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice, (ii) adopt a plan of complete or partial liquidationcomply in all material respects with all Laws applicable to the Target Companies and their respective businesses, dissolutionassets and employees, recapitalization or restructuring, or and (iii) enter into a Material Contract take commercially reasonable measures to preserve intact, in all material respects, their respective business organizations, to keep available the services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets, all as consistent with past practice. (b) Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this Agreement or amend the Ancillary Documents or terminate any Material Contract as set forth on Schedule 5.2, during the Interim Period, without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries not to: (i) amend, waive or otherwise change, in any material respect or grant any releaserespect, waiver or relinquishment of any material rights under any Material Contractits Organizational Documents, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated therebyexcept as required by applicable Law; (eii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, other than (A) any issuance of Company Securities that does not increase the Merger Consideration and (B) the issuance of Company Common Stock upon the exercise of Company Options, Company Warrants and Company Convertible Notes outstanding as of the date hereof in accordance with their existing terms, or engage in any hedging transaction with a third Person with respect to such securities; (iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities; (iv) incur, create, assume, guarantee, endorse prepay or otherwise become liable or responsible for any Indebtedness (whether directly, contingently or otherwise) for in excess of $500,000 individually or $1,000,000 in the obligations aggregate, make a loan or advance to or investment in any Third Party (other than advancement of expenses to employees in the ordinary course of business), or guarantee or endorse any Indebtedness, Liability or obligation of any other Person in excess of $100,000 except 500,000 individually or $1,000,000 in the aggregate; (v) other than as required by applicable Law or pursuant to the terms of any direct Company Benefit Plans (A) increase the wages, salaries or indirect wholly owned Subsidiaries compensation of its Senior Vice Presidents and above other than in the ordinary course of business, consistent with past practice, (B) make or commit to make any bonus payment (whether in cash, property or securities) other than in the ordinary course of business consistent with past practice, (C) materially increase other benefits of employees generally other than in the ordinary course of business, or (D) enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in connection with the Company’s retail products and respect of any current consultant, officer, manager director or other retail activities employee, other than in the ordinary course of business consistent with past practice; (fvi) make or rescind any loansmaterial election relating to Taxes, advances settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or capital contributions tocontroversy relating to material Taxes, file any amended Tax Return or claim for refund, or investments inmake any material change in its method of Tax accounting, in each case except as required by applicable Law or in compliance with GAAP; (vii) (A) take any action, or knowingly fail to take any action, which action or failure to act would reasonably be expected to prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code (and the Treasury Regulations) or (B) except as contemplated by this Agreement, take any action, which action would reasonably be expected to prevent or impede any other aspect of the Intended Tax Treatment; (viii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Owned Intellectual Property (excluding lapses or terminations of Contracts pursuant to the terms thereof), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets; (ix) terminate, or waive or assign any material right under, any other Person (other than Company Material Contract or enter into any direct or indirect wholly owned Subsidiaries Contract that would be a Company Material Contract, in any case outside of the Company or ordinary course of business consistent with past practice; (x) fail to maintain its books, accounts and records in connection with the Company’s retail products and other retail activities all material respects in the ordinary course of business consistent with past practice; (xi) establish any Subsidiary or enter into any new line of business; (xii) fail to use commercially reasonable efforts to keep in force material insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect; (xiii) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors; (xiv) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the Transactions), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $500,000 individually or $1,000,000 in the aggregate; (xv) close or materially reduce its activities, or effect any layoff or other personnel reduction or change, at any of its facilities; (xvi) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice; (xvii) make capital expenditures in excess of $500,000 (individually for any project (or set of related projects) or $1,000,000 in the aggregate); (xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $100,000; 1,000,000 individually or $2,000,000 in the aggregate (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise excluding the incurrence of any material Tax liability, agree Expenses) other than pursuant to any adjustment the terms of any material Tax attribute, a Company Material Contract or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any Benefit Plan in existence as of the Company’s Subsidiaries after the Effective Date, date of this Agreement or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or entered into in the ordinary course of businessbusiness or in accordance with the terms of this Section 5.2; (ixix) adopt any amendment to its certificate a plan of incorporation complete or bylaws (partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or equivalent governing documents)other reorganization; (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (kxx) enter into any collective bargainingagreement, works council understanding or similar labor agreementarrangement with respect to the voting of equity securities of the Company; (lxxi) adopttake any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement; (xxii) except as required by this Agreement, enter into, materially amend amend, waive or terminate any material Plan (other than as required by applicable Law, to reflect changes terminations in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (iiaccordance with their terms) any unbudgeted capital expenditure in an amount not to exceedtransaction with any Related Person (other than compensation and benefits and advancement of expenses, in any yeareach case, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred provided in the ordinary course of business consistent with past practice to fund working capital requirementspractice). (n) except as set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceeding; or (oxxiii) offer, authorize or agree or commit, in writing or otherwise, to take do any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

Conduct of Business of the Company. Except as described in Section 6.1 of the Company Disclosure Letter or as expressly provided for by this Agreement, during (a) During the period from commencing on the date of this Agreement Execution Date and continuing until ending on the earlier of the termination of this Agreement or in accordance with its terms and the Effective TimeClosing Date (the “Pre-Closing Period”), except as (x) otherwise expressly provided herein, (y) set forth in Section 6.1 of the Company will conduct and will cause each of its Subsidiaries Disclosure Schedules or (z) as required by any Law applicable to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and the Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization and to preserve the present relationships with those Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed)Acquired Company, the Company will not shall, and will not permit any of its Subsidiaries to: (a) except as set forth on Section 6.1(a) of shall cause the Company Disclosure Letter, issue, sell, grant options or rights Acquired Companies to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose operate the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) on any shares of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests); (d) (i) make any acquisition or disposition, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities Business in the ordinary course of business consistent with past practicepractice except with the prior written consent of Parent (such consent not to be unreasonably delayed, withheld or conditioned). (b) Without limiting the generality of the foregoing Section 6.1(a), during the Pre-Closing Period, except as (x) otherwise expressly provided herein, (y) set forth in Section 6.1 of the Company Disclosure Schedules or (z) as required by any Law applicable to the Company or any Acquired Company, the Company shall not, and shall cause the Acquired Companies not to, take any of the following actions without the prior written consent of Parent (such consent not to be unreasonably delayed, withheld or conditioned): (i) make any amendment to the Organizational Documents of the Acquired Companies (other than the amendment with respect to the Company Preferred Stock pursuant to the Support Agreement); (ii) adopt a plan issue, sell, grant, pledge or otherwise dispose of complete or partial liquidationgrant any Encumbrance (other than Permitted Encumbrances) with respect to any of the Acquired Companies’ capital stock, dissolution, recapitalization or restructuringother than the issuance of shares of Company Common Stock upon exercise of any Company Option outstanding as of the date hereof, or grant any options, warrants or other rights to acquire any such capital stock or other interest or any instrument convertible into or exchangeable or exercisable for any such capital stock or other interest except as required by any Company Benefit Plans in effect as of the date hereof; (iii) enter into adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file a Material Contract petition in bankruptcy under any provisions of federal or amend state bankruptcy Law or terminate consent to the filing of any bankruptcy petition against the Company or any Material Contract Subsidiary under any similar Law; (iv) create any Subsidiary of an Acquired Company; (v) (A) declare, accrue, set aside or pay any dividend or make any other distribution on or in respect of any of the Acquired Companies’ capital stock or other securities (other than to an Acquired Company and other than accretion on the Company Preferred Stock as set forth in the Certificate of Designation) or (B) redeem, repurchase or otherwise reacquire, split, combine or reclassify any capital stock of the Company or otherwise change the capital structure of the Company; (vi) make any material changes in any accounting methods, principles or practices except as required by a change in GAAP or as required by applicable Law or fail to take actions necessary to prepare interim unaudited and year end audited financial statements; (vii) change in any material respect the policies or grant any release, waiver practices regarding accounts receivable or relinquishment accounts payable or fail to manage working capital in each case other than in the ordinary course of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated therebybusiness consistent with past practices; (eviii) assume, guarantee, endorse (A) terminate or otherwise become liable materially amend any Material Contract or responsible (whether directly, contingently or otherwise) for the obligations of any other Person Contract that would constitute a Material Contract if in excess of $100,000 except any direct or indirect wholly owned Subsidiaries effect as of the Company Execution Date or (B) enter into any Contract that would constitute a Material Contract if in connection effect as of the Execution Date, in each case, other than with respect to Contracts with customers of the Company’s retail products and other retail activities Business entered into in the ordinary course of business consistent with past practice; (fix) make license any loansmaterial technology or Intellectual Property Rights to any Person, advances or capital contributions to, or investments in, any other Person (other than any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities non-exclusive licenses in the ordinary course of business consistent with past practice; or acquire any material Intellectual Property Rights (or any license thereto, other than (A) off-the-shelf shrinkwrap, clickwrap or similar commercially available non-custom software from any third party or (B) licenses for an aggregate license fee of less than $1,000,000); (x) make capital expenditures in excess of $100,0001,000,000 individually or $5,000,000 in the aggregate, except as provided for in the Budget; (gxi) change incur or assume any financial accounting methods, principles Indebtedness or practices used by it, except as required by applicable Law; (i) change guarantee any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise Indebtedness of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay Person (other than pursuant any Indebtedness of an Acquired Company to a Plan) which will become due the extent owed to another Acquired Company and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases incurred in the ordinary course of business); (kxii) enter into grant or suffer to exist any collective bargainingEncumbrance (other than Permitted Encumbrances) on any properties or assets, works council tangible or similar labor agreementintangible, of the Acquired Companies except in the ordinary course of business consistent with past practice; (lxiii) adopt, enter into, materially amend or terminate make any material Plan (other than as required by applicable Law, to reflect changes in plan administrationcapital investment in, or make any loan to any other Person, except for (a) intercompany loans, advances or capital contributions entered into in between or among the Acquired Companies, (b) advances to employees for expenses reimbursable under the Acquired Companies’ business expense reimbursement policy not in excess of $10,000 individually and $200,000 in the aggregate and (c) advances in the ordinary course of business);. (mxiv) incur sell, lease, pledge, abandon, assign or otherwise dispose of any capital expenditure of the assets, properties or rights of any obligations, Liabilities Acquired Company in excess of $500,000 individually or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, $2,500,000 in the aggregate, $500,000), including any long-term debt or short-term except sales of assets (except for short-term debt incurred other than Owned Real Property) in the ordinary course of business consistent with past practice to fund working capital requirements).and dispositions of worn out or obsolete assets; (nxv) abandon, allow to lapse or fail to maintain or prosecute any Company Intellectual Property, unless the Company reasonably determines in good faith that it is in the interest of the Business to so abandon, allow to lapse or fail to maintain or prosecute any such Company Intellectual Property; (xvi) purchase or acquire, directly or indirectly (including by merger, consolidation, or acquisition of stock or assets or any other business combination), any corporation, partnership, other business organization or division thereof or any other business or any equity interest in any Person; (xvii) purchase, lease or otherwise acquire any property or assets for an amount in excess of $100,000 individually or $1,000,000 in the aggregate, except as provided for in the Budget and for purchases of inventory or supplies and other assets in the ordinary course of business consistent with past practice; (xviii) enter into a material new line of business or abandon or discontinue any existing material line of business; (xix) settle or compromise any Legal Proceeding where such settlement or compromise would (A) require the payment by an Acquired Company of an amount in excess of $300,000 individually or $1,000,000 in the aggregate or (B) impose any material restrictions or limitations upon the operations or Business, whether before or after the Closing; (xx) commence any material Legal Proceeding other than any Legal Proceedings (i) related to this Agreement or any of the Ancillary Agreements (including, without limitation, enforcement thereof), (ii) for routine matters consistent with past practice or (iii) a Legal Proceeding which the Company determines the failure to commence could result in a material harm to its business; provided that, prior to commencing a Legal Proceeding with respect to clause (iii) the Company shall consult with Parent at least five days before the filing of any such Legal Proceeding; provided, however, that the foregoing shall not prohibit any appeals or counterclaims in connection with any Legal Proceeding; (xxi) other than as required under applicable Law, (A) amend or modify in any material respect or terminate any Company Benefit Plan or adopt or enter into any material new arrangement that would be a Company Benefit Plan were it in existence as of the Execution Date, except as a result of the renewal or extension on substantially similar terms of an existing Company Benefit Plan that does not primarily cover senior executives of the Acquired Companies in connection with the expiration of such Company Benefit Plan; (B) pay or otherwise grant any benefit not required by a Company Benefit Plan as in effect on the date hereof; (C) except as set forth is already provided for by any Company Benefit Plan in effect on the date hereof, materially increase the compensation of any director, member of senior management or executive officer of any Acquired Company; (D) except as provided by this Agreement with respect to Company Options and the Stock Appreciation Right, accelerate the vesting, lapse of restrictions or time of payment or funding of any payment or award to any director, officer, employee, consultant or individual contractor; provided, however, that changes in participation under Company Benefit Plans due to “open enrollment” elections in the ordinary course of business shall not be a violation of this Section 6.1(n6.1(b)(xxi); (xxii) other than as required under applicable Law, enter into or modify any labor or collective bargaining agreement or, through negotiations or otherwise, make any commitment or incur any material Liability to any labor organization; (xxiii) except as required to replace headcount lost due to turnover, and only in the ordinary course of business consistent with past practice, hire any new employee with annual compensation in excess of $400,000; (xxiv) make, change or rescind any material express or deemed election relating to Taxes, settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, surrender any material right or claim to a refund of Taxes, consent to any extension or waiver of the statute of limitations period applicable to any material Tax Return, make any material amendment to any Tax Return, enter into any material closing agreement with respect to Taxes, or make any change to any of its material Tax accounting policies or procedures; (xxv) enter into any transaction with any stockholder of the Company Disclosure Letter, settle or any affiliate of such Person (iother than another Acquired Company) any Legal Proceeding that is disclosed other than in the Company SEC Reports filed prior to the date hereof ordinary course of business or (ii) any other Legal Proceeding; orthat will not survive Closing; (oxxvi) offer, agree or commit, in writing (by Contract or otherwise, ) or commit to take any of the actions in the foregoing actions. Notwithstanding the foregoing, nothing clauses (i) through (xxv). (c) Nothing contained in this Agreement is intended to shall give ParentParent and Merger Sub, directly or indirectly, the right to control or direct the business or Business and the operations of the Company or its Subsidiaries at any time Acquired Companies prior to the Acceptance TimeClosing. Prior to the Acceptance TimeClosing, the Company and its Subsidiaries the Acquired Companies shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business the Business and operationsthe operations of the Acquired Companies.

Conduct of Business of the Company. Except as described expressly required or expressly contemplated by this Agreement or as set forth in Section 6.1 5.1 of the Company Disclosure Letter or as expressly provided for by this AgreementLetter, during the period from the date of this Agreement through the Effective Time, the Company will, and continuing until will cause each of its Subsidiaries to, (x) conduct its operations only in the earlier ordinary course of business consistent with past practice and (y) use all reasonable efforts to maintain and preserve intact its business organization, including the services of its key employees and the goodwill of its customers, lenders, distributors, suppliers, regulators and other Persons with whom it has material business relationships. Without limiting the generality of the termination foregoing, except with the prior written consent of SibCo, as expressly contemplated by this Agreement or as set forth in Section 5.1 of the Company Disclosure Letter, from the date of this Agreement or through the Effective Time, the Company will conduct not, and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practicenot to, and the Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization and to preserve the present relationships with those Persons having business relationships with the Company or take any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries toactions: (a) except as set forth on Section 6.1(a) of propose or adopt any changes to the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their termsOrganizational Documents; (b) acquire or redeem or offer to acquire or redeemmake, directly or indirectlydeclare, set aside, or amend pay any Company Securitiesdividend or distribution on any shares of its capital stock, except other than dividends paid by a wholly owned Subsidiary to the extent provided its parent corporation in the terms ordinary course of any business; provided that the Company Stock Planmay declare and pay regular quarterly dividends, in each case not to exceed $.07 per Share, consistent with past practice as to timing; (c) (i) adjust, split, combine, subdivide, combine or reclassify or otherwise amend the terms of its capital stock, (ii) repurchase, redeem, purchase, acquire, encumber, pledge, dispose of or otherwise transfer, directly or indirectly, any shares of its capital stock or declare, set aside, make or pay any dividend securities or other distribution (whether in cash, stock, property rights convertible or any combination thereof) on exchangeable into or exercisable for any shares of its capital stock (or such securities or other rights, or offer to do the same, other than cash dividends paid to in connection with the Company cashless exercise of Stock Options or one the cashless settlement of its wholly owned Subsidiaries by a wholly owned Subsidiary RSUs, (iii) issue, grant, deliver or sell any shares of the Company with regard to its capital stock or any securities or other equity interestsrights convertible or exchangeable into or exercisable for any shares of its capital stock or such securities or rights (which term, for purposes of this Agreement, will be deemed to include “phantom” stock or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights), other than pursuant to (A) the exercise of Stock Options, (B) the vesting or settlement of Company DSUs and Company RSUs, in each case outstanding as of the date of this Agreement, or (C) the Company Director Compensation Program, in all cases in accordance with the terms of the applicable award or plan as in effect on the date of this Agreement, (iv) enter into any contract, understanding or arrangement with respect to the sale, voting, pledge, encumbrance, disposition, acquisition, transfer, registration or repurchase of its capital stock or such securities or other rights, except in each case as permitted under Section 5.1(d), or (v) register for sale, resale or other transfer any Shares under the Securities Act on behalf of the Company or any other Person; (d) (i) make any acquisition increase the compensation or dispositionbenefits payable or to become payable to, or make any offer or agreement to acquire or dispose by means of a mergerpayment not otherwise due to, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries past or any Personpresent directors, in each case involving the payment of consideration (including consideration officers, employees, or other service providers, except for increases in the form ordinary course of assumption of Liabilitiesbusiness consistent with past practice in timing and amount, (ii) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice, grant any severance or termination pay to any of its past or present directors, officers or members of the Executive Leadership Council, other than additional payments to present employees not exceeding in the aggregate the amount set forth on Schedule 5.1(d)(ii), (iiiii) adopt other than in the ordinary course of business consistent with past practice, enter into any new employment or severance agreement with any of its past or present directors, officers or members of the Executive Leadership Council, other than such agreements for present employees that provide for additional payments not exceeding in the aggregate the amount set forth on Schedule 5.1(d)(iii), (iv) other than in the ordinary course of business consistent with past practice, establish, adopt, enter into, amend or take any action to accelerate rights under any Company Benefit Plans or any plan, agreement, program, policy, trust, fund or other arrangement that would be a plan Company Benefit Plan if it were in existence as of complete the date of this Agreement, (v) contribute any funds to a “rabbi trust” or partial liquidationsimilar grantor trust, dissolution(vi) change any actuarial assumptions currently being utilized with respect to Company Benefit Plans, recapitalization except as required by applicable Law or restructuringby GAAP, or (iiivii) grant any equity or equity-based awards to directors, officers or employees, except in each case to the extent required by GAAP, applicable Laws or by existing Company Benefit Plans set forth in Section 3.13(a) of the Company Disclosure Letter; (e) merge or consolidate the Company or any of its Subsidiaries with any Person, other than mergers or consolidations in the ordinary course of business consistent with past practice involving wholly-owned Subsidiaries; (f) sell, lease or otherwise dispose of an amount of assets or securities, including by merger, consolidation, asset sale or other business combination (including formation of a Company Joint Venture ) or by property transfer, other than (1) sales of assets in the ordinary course of business consistent with past practice and (2) sales or dispositions not exceeding $30,000,000 in any single transaction and not exceeding $75,000,000 in the aggregate for all transactions; (g) other than in the ordinary course of business consistent with past practice, mortgage or pledge any of its material assets (tangible or intangible), or create, assume or suffer to exist any Liens thereupon, other than Permitted Liens; (h) make any acquisitions, by purchase or other acquisition of stock or other equity interests, or by merger, consolidation or other business combination (including formation of a Company Joint Venture)) or make any material purchase(s) of any property or assets, from any Person (other than a wholly owned Subsidiary of the Company), in all such cases other than (1) acquisitions or purchases in the ordinary course of business operations consistent with past practice and (2) acquisitions or purchases not exceeding $30,000,000 in any single transaction and not exceeding $75,000,000 in the aggregate for all transactions; (i) enter into a Material Contract or into, renew, extend, amend or terminate any Material Contract or Contracts that, individually or in any material respect the aggregate with other such entered, renewed, extended, amended or grant any releaseterminated Contracts, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay have a Company Material Adverse Effect or prevent the consummation MergerCo Material Adverse Effect; (j) incur, assume, guarantee or prepay any indebtedness for borrowed money or offer, place or arrange any issue of the Merger debt securities or commercial bank or other credit facilities, in either case other than any of the transactions contemplated therebyforegoing that is both in the ordinary course of business and could not reasonably be expected to delay, adversely affect, compete with or impede any part of the Debt Financing or the ability of the borrowers thereunder to obtain any Part of the Debt Financing or cause the breach of any provisions of the Debt Financing Letter or cause any condition set forth in the Debt Financing Letter not to be satisfied; (ek) assumemake any loans, guaranteeadvances or capital contributions to or investments in, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct 15,000,000 in the aggregate for all such loans, advances, contributions and investments, other than loans, advances or indirect capital contributions to or among wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities as required by customer contracts entered in the ordinary course of business consistent with past practice; (fl) authorize or make any loanscapital expenditure, advances other than (1) capital expenditures during the period from the date hereof through September 30, 2006 as would not, in the aggregate, cause the total amount of the Company’s capital expenditures for fiscal 2006 to exceed by more than $25,000,000 the capital expenditures provided for in the Company’s projections for the full fiscal year 2006 (a copy of which projections has been provided to SibCo) and (2) capital expenditures for the period from September 30, 2006 through the Closing Date in the ordinary course of business consistent with past practice as would not cause the Company’s capital expenditures for such period to exceed the capital expenditures provided for in the Company’s projections for full fiscal year 2007 (a copy of which projections will be provided to SibCo); (m) change its financial accounting policies or capital contributions toprocedures, other than as required by Law or GAAP, or investments inwrite up, write down or write off the book value of any other Person (assets of the Company and its Subsidiaries, other than (i) in the ordinary course of business consistent with past practice or (ii) as may be required by Law or GAAP; (n) waive, release, assign, settle or compromise any direct Legal Actions, other than waivers, releases, assignments, settlements or indirect wholly owned Subsidiaries compromises that involve only the payment of monetary damages not in excess of $5,000,000 with respect to any individual case or series of related cases, or $25,000,000 in the aggregate, in any case without the imposition of any material restrictions on the business and operations of the Company or in connection with any of its Subsidiaries; (o) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company’s retail products and Company or any of its Subsidiaries (other retail activities than immaterial Subsidiaries); (p) other than in the ordinary course of business consistent with past practice) in excess of $100,000; (g) change any financial accounting methods, principles settle or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind compromise any material Tax electionaudit, (iii) amend make or change any material Tax Return, (iv) adopt election or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of file any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect amendment to a material Tax Return, in each easechange any annual Tax accounting period or adopt or change any Tax accounting method, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargainingmaterial closing agreement, works council surrender any right to claim a material refund of Taxes or similar labor agreement; (l) adopt, enter into, materially amend consent to any extension or terminate waiver of the limitation period applicable to any material Plan (Tax claim or assessment relating to the Company or its Subsidiaries, other than as required by applicable Lawthan, to reflect changes in plan administrationeach case, those settlements or agreements for which any liabilities thereunder have been specifically accrued and reserved for in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness balance sheet most recently included in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent a Company SEC Document filed prior to the date of this Agreement and Agreement; (iiq) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof Affiliate Transaction; or (iir) any other Legal Proceeding; or (o) offer, agree or commit, in writing or otherwise, commit to take do any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

Conduct of Business of the Company. Except as described in Section 6.1 of the Company Disclosure Letter or as expressly provided for by this Agreement, during During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, the Company will conduct shall, and will shall cause each of its Subsidiaries Subsidiaries, except as expressly contemplated by this Agreement, as required by applicable Law, or with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed), to use its reasonable best efforts to conduct its operations business in all material respects according to its the ordinary and usual course of business consistent with past practice. To the extent consistent therewith, the Company shall, and the Company will use and will shall cause each of its Subsidiaries to to, use its commercially reasonable best efforts to preserve substantially intact its and its Subsidiaries’ business organization organization, to keep available the services of its and its Subsidiaries’ current officers and employees, to preserve the its and its Subsidiaries’ present relationships with those customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentenceit. Without limiting the generality of the foregoing foregoing, between the date of this Agreement and the Effective Time, except as otherwise expressly provided for contemplated by this Agreement, during as set forth in Section 5.01 of the period specified in Company Disclosure Schedule, or as required by applicable Law, the preceding sentenceCompany shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries to:): (a) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize amend or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their termsamend its Charter Documents; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (ci) split, combine, subdivideor reclassify any Company Securities or Company Subsidiary Securities, reclassify (ii) repurchase, redeem, or otherwise amend the terms of acquire, or offer to repurchase, redeem, or otherwise acquire, any shares of its capital stock Company Securities or Company Subsidiary Securities, or (iii) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property property, or otherwise) in respect of, or enter into any combination thereof) on Contract with respect to the voting of, any shares of its capital stock (other than cash dividends paid to from its direct or indirect wholly-owned Subsidiaries); (c) issue, sell, pledge, dispose of, or encumber any Company Securities or Company Subsidiary Securities, other than the issuance of shares of Company or one Common Stock upon the exercise of its wholly owned Subsidiaries by a wholly owned Subsidiary any Company Equity Award outstanding as of the Company date of this Agreement in accordance with regard to its capital stock or other equity interests)terms; (d) except as required by applicable Law or by any Company Employee Plan or Contract in effect as of the date of this Agreement (i) make any acquisition increase the compensation payable or disposition, or make any offer or agreement to acquire or dispose that could become payable by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries to directors, officers, or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000employees, other than any acquisition, disposition, sale, lease or encumbrance of assets related increases in compensation made to the Company’s retail products and other retail activities non-officer employees in the ordinary course of business consistent with past practice, (ii) adopt a plan of complete promote any officers or partial liquidationemployees, dissolution, recapitalization or restructuring, or (iii) enter into a Material Contract or amend or terminate any Material Contract in any material respect or grant any release, waiver or relinquishment of any material rights under any Material Contract, in a manner that would reasonably be expected to materially delay or prevent the consummation of the Merger or any of the transactions contemplated thereby; (e) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person in excess of $100,000 except any direct or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and annual or quarterly compensation review cycle or as the result of the termination or resignation of any officer or employee, or (iii) establish, adopt, enter into, amend, terminate, exercise any discretion under, or take any action to accelerate rights under any Company Employee Plans or any plan, agreement, program, policy, trust, fund, or other retail activities arrangement that would be a Company Employee Plan if it were in existence as of the date of this Agreement, or make any contribution to any Company Employee Plan, other than contributions required by Law, the terms of such Company Employee Plans as in effect on the date hereof, or that are made in the ordinary course of business consistent with past practice; (fe) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances advances, or capital contributions toto or investments in any Person in excess of $100,000.00 in the aggregate; (f) (i) transfer, license, sell, lease, or investments inotherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber, or otherwise subject to any other Person Lien (other than a Permitted Lien), any direct assets, including the capital stock or indirect wholly owned Subsidiaries other equity interests in any Subsidiary of the Company; provided, that the foregoing shall not prohibit the Company and its Subsidiaries from transferring, selling, leasing, or disposing of obsolete equipment or assets being replaced, or granting of non-exclusive licenses under the Company IP, in connection with the Company’s retail products and other retail activities each case in the ordinary course of business consistent with past practice, or (ii) in excess adopt or effect a plan of $100,000complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization; (g) change repurchase, prepay, or incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or options, warrants, calls, or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any “keep well” or other Contract to maintain any financial accounting methodsstatement condition of any other Person (other than any wholly-owned Subsidiary of it) or enter into any arrangement having the economic effect of any of the foregoing, principles other than in connection with the financing of ordinary course trade payables consistent with past practice; (h) enter into or practices used by itamend or modify in any material respect, except or consent to the termination of (other than at its stated expiry date), any Company Material Contract or any Lease with respect to material Real Estate or any other Contract or Lease that, if in effect as required by applicable Lawof the date hereof would constitute a Company Material Contract or Lease with respect to material Real Estate hereunder; (i) institute, settle, or compromise any Legal Action involving the payment of monetary damages by the Company or any of its Subsidiaries of any amount exceeding $50,000.00 in the aggregate, other than (i) any Legal Action brought against Parent arising out of a breach or alleged breach of this Agreement by Parent, and (ii) the settlement of claims, liabilities, or obligations reserved against on the Company Balance Sheet; provided, that neither the Company nor any of its Subsidiaries shall settle or agree to settle any Legal Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive impact on the Company’s business; (j) make any material change in any method of financial accounting principles or practices; (k) (i) settle or compromise any material Tax claim, audit, or assessment for an amount materially in excess of the amount reserved or accrued on the Company Balance Sheet, (ii) make or change any material Tax election, change any annual Tax accounting period, (ii) make, or adopt or change or rescind any material method of Tax electionaccounting, (iii) amend any material Tax ReturnReturns or file claims for material Tax refunds, or (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of material closing agreement, surrender in writing any right to claim a material Tax liabilityrefund, agree offset or other reduction in Tax liability or consent to any adjustment extension or waiver of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating the limitation period applicable to any material Tax liability claim or that could bind assessment relating to the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreementSubsidiaries; (l) adopt, enter into, materially amend or terminate into any material Plan (other than as required by applicable Lawagreement, to reflect changes agreement in plan administrationprinciple, letter of intent, memorandum of understanding, or in the ordinary course of business)similar Contract with respect to any joint venture, strategic partnership, or alliance; (m) incur except in connection with actions permitted by Section 5.04 hereof, take any capital expenditure action to exempt any Person from, or make any obligationsacquisition of securities of the Company by any Person not subject to, Liabilities any state takeover statute or indebtedness in similar statute or regulation that applies to Company with respect thereof (to a Takeover Proposal or otherwise, except for (i) those Parent or the transactions contemplated by the capital expenditure budget for the relevant fiscal yearthis Agreement; (n) abandon, which capital expenditure budget has been provided allow to lapse, sell, assign, transfer, grant any security interest in otherwise encumber or made available dispose of any material Company IP, or grant any right or license to Parent prior any material Company IP other than pursuant to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any longnon-term debt or short-term (except for short-term debt incurred exclusive licenses entered into in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceeding; orpractice; (o) offerterminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; (p) except to the extent expressly permitted by Section ‎5.04 or Section 7, take any action that is intended or that would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the consummation of the Merger, or the other transactions contemplated by this Agreement; or (q). agree or commit, in writing or otherwise, commit to take do any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.

Conduct of Business of the Company. (a) Except as described with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), for matters set forth in Section 6.1 5.1 of the Company Disclosure Letter or otherwise expressly required or permitted by this Agreement or required by Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, use reasonable best efforts to conduct its business in the ordinary course in substantially the same manner as previously conducted and, to the extent consistent therewith, use reasonable best efforts to preserve substantially intact its business organization, maintain all material Permits, keep available the services of its current officers and key employees and preserve intact its goodwill and ongoing business relationships with customers, suppliers, licensors, licensees and others having business dealings with them. (b) Without limiting the generality of Section 5.1(a), except for matters set forth in Section 5.1 of the Company Disclosure Letter or as otherwise expressly provided for required or permitted by this AgreementAgreement or required by Law, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or to the Effective Time, the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practiceshall not, and the shall not permit any Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization and to preserve the present relationships with those Persons having business relationships with the Company or Subsidiary to, do any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentence. Without limiting the generality of the foregoing and except as otherwise expressly provided for by this Agreement, during the period specified in the preceding sentence, without the prior written consent of Parent (which consent shall not be unreasonably conditionedwithheld, withheld conditioned or delayed), the Company will not and will not permit any of its Subsidiaries to:): (a) except as set forth on Section 6.1(a) of the Company Disclosure Letter, issue, sell, grant options or rights to purchase, pledge, deliver, transfer, dispose of or encumber any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) on any shares of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Company with regard to its capital stock or other equity interests); (d) (i) make any acquisition amend or disposition, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, permit the adoption of any material business, assets amendment to the charter or securities bylaws (or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilitiesequivalent organizational documents) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000, other than any acquisition, disposition, sale, lease or encumbrance of assets related to the Acquired Company’s retail products and other retail activities in the ordinary course of business consistent with past practice, ; (ii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or restructuringother reorganization, except for any merger or (iii) enter into a Material Contract or amend or terminate any Material Contract consolidation solely among wholly owned Company Subsidiaries not in any material respect or grant any release, waiver or relinquishment violation of any material rights under instrument binding on any Material Contract, in a manner of the Acquired Companies and that would not reasonably be expected to materially delay or prevent result in a material increase in the consummation net Tax liability of the Merger Acquired Companies taken as a whole and would not present a material risk of any delay in the receipt of any approvals required under Section 6.1; (iii) issue, grant, deliver, sell, pledge, dispose of or encumber any (A) shares of capital stock, (B) Company Voting Debt or other voting securities, (C) Company Stock Equivalents or (D) securities convertible into or exercisable or exchangeable for any shares of capital stock or voting securities of, or equity interests in, any Acquired Company, other than the issuance of Company Shares in respect of Company Stock Awards outstanding as of the date of this Agreement and in accordance with their terms under the Company Stock Plans as of the date of this Agreement; (iv) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or other equity interests other than (A) any dividend or distribution by a Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and (B) regular quarterly dividends in an amount per Company Common Share no greater than the quarterly dividend declared and paid by the Company during the fiscal quarter ended September 30, 2016, with record and payment dates in accordance with the Company’s customary dividend schedule; (v) otherwise manage its working capital in a manner other than in the ordinary course of business; (vi) enter into any financial derivative Contract for the purpose of hedging risk, except foreign exchange hedging on customary commercial terms and in the ordinary course of business; (vii) adjust, split, combine, redeem, repurchase or otherwise acquire any shares of its capital stock or other equity interests (except in connection with the cashless exercises or similar transactions (including withholding of Taxes) pursuant to the vesting or exercise, as the case may be, of Company Stock Awards outstanding as of the date hereof and in accordance with their terms under the Company Stock Plans as of the date of this Agreement), or reclassify, combine, split, subdivide or otherwise amend the terms of its capital stock or other equity interests, or enter into any agreement with respect to the voting of any of the transactions contemplated therebyCompany’s capital stock or other securities or the capital stock or other securities of a Subsidiary of the Company; (eviii) assume, guarantee, endorse make or otherwise become liable agree to make any new capital expenditures other than (A) capital expenditures in an aggregate amount not in excess of the Company’s budget for capital expenditures that has been made available to Parent prior to the date of this Agreement or responsible (whether directly, contingently or otherwiseB) for the obligations of any other Person capital expenditures that are not in excess of $100,000 except 5,000,000 in the aggregate; (A) acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any direct corporation, partnership or indirect wholly owned Subsidiaries other business organization or division thereof or any material assets other than (1) pursuant to contracts or commitments in existence as of the Company or in connection with the Company’s retail products and other retail activities date of this Agreement, (2) acquisitions of supplies in the ordinary course of business consistent with past practicepractice or (3) acquisitions with a purchase price (including assumed indebtedness) not exceeding $33,000,000 in the aggregate, provided that such acquisitions would not reasonably be expected to impede or delay the satisfaction of the conditions to or the consummation of the Closing, or (B) sell, lease, exchange, mortgage, pledge, transfer, subject to any Lien (other than Permitted Liens) or otherwise dispose of (whether by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any material assets that are not Company Intellectual Property, other than (1) pursuant to contracts or commitments in existence as of the date of this Agreement, (2) sales of obsolete equipment in the ordinary course of business or (3) sales or dispositions of inventory and other assets with a fair market value not in excess of $2,500,000 in any transaction or series of related transactions or $5,000,000 in the aggregate; (fx) enter into any material joint venture or similar partnership arrangement; (xi) engage in any transactions, agreements, arrangements or understandings with any Affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (xii) (A) incur, create, assume or otherwise become liable for, or repay or prepay, any indebtedness for borrowed money (other than (1) ordinary course trade payables, (2) pursuant to existing credit facilities (including the Credit Agreement) or in the ordinary course of business; provided, however, that the aggregate amount of such indebtedness as of the Closing shall not exceed the amount of indebtedness outstanding under the Credit Agreement as of June 30, 2016, (3) as incurred between or among the Company and any of its wholly owned Subsidiaries or between any of such Subsidiaries or (4) guarantees by the Company or its Subsidiaries of indebtedness of the Company or any of its wholly owned Subsidiaries), or guarantee any such indebtedness of any third party, issue or sell any debt securities, options, calls, warrants or other rights to acquire any debt securities of any Acquired Company, guarantee any debt securities of any third party, enter into any “keep well” or other agreement to maintain any financial statement condition of any third party or enter into any arrangement having the economic effect of any of the foregoing, or amend, modify or refinance any such indebtedness or (B) make any loans, advances or capital contributions to, or investments in, any other Person (other than any direct or indirect wholly owned Subsidiaries of the Company or in connection with any Subsidiary of the Company’s retail products ); (xiii) except to the extent required by applicable Law or the terms of any Company Plan, and except as expressly contemplated by this Agreement, (A) increase the compensation or benefits of any current or former director, employee or individual independent contractor of any of the Acquired Companies, other retail activities than annual merit or market-based increases of base salaries in the ordinary course of business consistent with past practice, (B) establish, materially amend, terminate or adopt any compensation or benefit plan, including any pension, retirement, profit-sharing, bonus or other employee benefit or welfare benefit plan or employment, change in control or severance agreement, (C) accelerate the vesting of, or the lapsing of restrictions with respect to, any stock-based compensation, (D) fail to make any required, non-de minimis contributions under any Company Plan, (E) hire or retain any officer, employee, sales personnel, individual independent contractor or director, other than hires to fill vacancies of officers, employees sales personnel, individual independent contractors or directors with annual base compensation not in excess of $100,000; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (ii) make, change or rescind any material Tax election, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement or compromise of any material Tax liability, agree to any adjustment of any material Tax attribute, or surrender any right or claim to a material refund of Taxes, (vi) enter into a closing agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred 200,000 in the ordinary course of business consistent with past practice to fund working capital requirements).or (F) terminate the services of, or materially modify the contractual relationship of, any officer, employee, sales personnel, individual independent contractor or director of any of the Acquired Companies with annual base compensation in excess of $200,000, other than terminations for “cause”; (nxiv) (A) implement or adopt any change in its methods of accounting, except to conform to changes in statutory or regulatory accounting rules or GAAP or regulatory requirements with respect thereto, (B) change its fiscal year or (C) make any material change in internal accounting controls or disclosure controls and procedures; (xv) (A) fail to file any material Tax Return when due (after giving effect to any properly obtained extensions of time in which to make such filings) or (B) except as set forth on Section 6.1(n) to the extent otherwise required by Law or in the ordinary course of business, make or change any material Tax election, change any material Tax accounting period with respect to a material amount of Taxes, file any material amended Tax Return, settle or compromise any audit or proceeding relating to a material amount of Taxes, agree to an extension or waiver of the Company Disclosure Letterstatute of limitations with respect to a material amount of Taxes, settle enter into any “closing agreement” within the meaning of Section 7121 of the Code (ior any similar provision of state, local, or non-U.S. Law) with respect to any Legal Proceeding material Tax or surrender any right to claim a material Tax refund; (xvi) take any action, cause any action to be taken, fail to take any action or fail to cause any action to be taken (including any action or failure to act otherwise permitted by this Section 5.1(b)) that would prevent the Merger and the Subsequent Merger, taken together, from constituting a tax-free reorganization under Section 368(a) and related provisions of the Code; (xvii) (A) pay, discharge, waive, settle, compromise, release or satisfy any material claim, liability or obligation that is disclosed not an Action, other than payment, discharge, waiver, settlement, release or satisfaction in the Company SEC Reports filed prior ordinary course of business and other than the satisfaction or performance by the Acquired Companies of their respective obligations in accordance with the applicable terms thereof under Contracts in effect on the date hereof and Contracts permitted under this Section 5.1 to be entered into on or following the date hereof or (iiB) other than in connection with the ordinary course of business, accelerate, discount, factor, reduce, sell (for less than its face value or otherwise), transfer, assign or otherwise dispose of, in full or in part, any material accounts receivable owed to any of the Acquired Companies, with or without recourse, including any rights or claims associated therewith; (xviii) commence or settle, compromise or otherwise resolve any material Action (A) outside the ordinary course of business, (B) as would result in any liability in excess of the amount reserved therefor or reflected on the balance sheet of the Company as of June 30, 2016, other than any such liability not in excess of $1,000,000 or (C) to the extent such litigation or other legal proceeding (1) involves any injunction or material non-monetary relief on any of the Acquired Companies, (2) does not provide for a complete release of the Acquired Companies of all claims or (3) provides for any admission of wrongdoing by any of the Acquired Companies; (xix) other than non-exclusive licenses or sublicenses to end users, distributors and resellers in the ordinary course of business, enter into any agreement, arrangement or commitment to grant a license or sublicense of any material Company Intellectual Property; (xx) transfer, sell, lease, license (except as permitted under Section 5.1(b)(xix)), mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any material Company Intellectual Property; (xxi) other than in the ordinary course of business (A) enter into, renew or materially amend or modify any Company Material Contract or Contract that would be a Company Material Contract if in effect on the date of this Agreement, (B) consent to the termination of (other than a termination in accordance with its terms) any other Legal ProceedingCompany Material Contract or Contract permitted under this Section 5.1 to be entered into on or following the date hereof that would be a Company Material Contract if in effect on the date of this Agreement or (C) materially amend, waive or modify or fail to enforce its material rights under any Company Material Contract or Contract permitted under this Section 5.1 to be entered into on or following the date hereof that would be a Company Material Contract if in effect on the date of this Agreement; (xxii) waive, extend, renew or enter into any non-compete, most favored nation, exclusivity, non-solicitation or similar Contract that would materially restrict or limit the freedom of any of the Acquired Companies in conducting their operations or business, as the case may be, or any of their respective Subsidiaries or Affiliates (whether before or after the Closing); (xxiii) effectuate a “plant closing” or “mass layoff,” as those terms are defined under WARN; (xxiv) enter into any new line of business which is outside the business being conducted by the Acquired Companies on the date hereof and any reasonable extensions thereof; (xxv) enter into, amend or modify any union recognition agreement, collective bargaining agreement or similar agreement with any labor union or representative body of any Acquired Company employees, or enter into negotiations regarding any such agreement; (xxvi) cancel any material insurance policies, or fail to renew any material insurance policies upon expiration on substantially the same terms as those in place on the date of this Agreement, to the extent insurance policies on such terms are available on commercially reasonable terms; or (oxxvii) offeragree to, agree authorize or commit, in writing or otherwise, enter into any Contract obligating it to take any of the foregoing actions. Notwithstanding the foregoing, nothing actions described in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operationsSections 5.1(b)(i) through 5.1(b)(xxvi).

Conduct of Business of the Company. (a) Except as described expressly contemplated or expressly permitted by any Transaction Agreement, as required by Applicable Law, as set forth in Section 6.1 5.1 of the Company Seller Disclosure Letter Schedule or as expressly provided for by this AgreementBuyer otherwise consents in advance, during the period from the date of this Agreement and continuing until to the earlier Closing Date, Seller shall cause the Transferred Companies to, carry on their respective businesses in the Ordinary Course of the termination of this Agreement or the Effective Time, the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary and usual course of business consistent with past practice, and the Company will use and will cause each of its Subsidiaries to use its commercially reasonable efforts to preserve intact its business organization and to preserve the present relationships with those Persons having business relationships with the Company or any of its Subsidiaries; provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of this Section 6.1 shall be deemed a breach of the covenants contained in this Section 6.1 unless such action would constitute a breach of one or more specific provisions of the following sentenceBusiness. Without limiting the generality of the foregoing and foregoing, from the date of this Agreement to the Closing Date, except as otherwise expressly provided for contemplated or expressly permitted by this any Transaction Agreement, during as required by Applicable Law or as set forth in Section 5.1 of the period specified in Seller Disclosure Schedule, Seller shall not cause or permit the preceding sentenceTransferred Companies to, without the prior written consent of Parent Buyer (which consent consent, with respect to subsections (ii), (vii), (xv) or (xviii) (with respect to such specified subsections) shall not be unreasonably conditionedwithheld, withheld conditioned or delayed), the Company will not and will not permit any of its Subsidiaries to:): (ai) except as set forth on Section 6.1(aenter into, amend in any material respect or, other than pursuant to its current terms, extend or terminate any Contract (A) with an Affiliate that will bind any Transferred Company after the Closing or (B) outside the Ordinary Course of Business; (ii) other than Investment Assets and other than acquisitions, dispositions or transfers in the Company Disclosure LetterOrdinary Course of Business, issue, sell, grant options or rights to purchase, pledge, deliver, transferacquire, dispose of or encumber transfer any shares of or securities convertible into or exchangeable for, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, deliver, transfer, or disposition or encumbrance asset of any shares of or securities convertible into or exchangeable for, Company Securities or Subsidiary Securities, other than Company Shares issuable upon exercise of the Company Options or vesting of Company RSU Awards outstanding on the date hereof in accordance with their terms; (b) acquire or redeem or offer to acquire or redeem, directly or indirectly, or amend any Company Securities, except to the extent provided in the terms of any Company Stock Plan; (c) split, combine, subdivide, reclassify or otherwise amend the terms of any shares of its capital stock or declare, set aside, make or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) on any shares of its capital stock (other than cash dividends paid to the Company or one of its wholly owned Subsidiaries by a wholly owned Subsidiary of the Transferred Company with regard to its capital stock or other equity interests); (d) (i) make any acquisition or disposition, or make any offer or agreement to acquire or dispose by means of a merger, consolidation, recapitalization, purchase, sale or otherwise, in one transaction or any series of related transactions, of any material business, assets or securities or any sale, lease, encumbrance or other disposition of assets or securities of the Company or any of its Subsidiaries or any Person, in each case involving the payment of consideration (including consideration in the form of assumption of Liabilities) of $100,000 or more or the disposition of assets or securities with a fair market value in excess of $100,000100,000 per such asset or $1,000,000 in the aggregate; (iii) (A) split, other than combine or reclassify any acquisition, disposition, sale, lease or encumbrance of assets related to the Transferred Company’s retail products and outstanding capital stock or equity securities or issue or authorize the issuance of any other retail activities stock or securities in the ordinary course respect of, in lieu of business consistent with past practiceor in substitution for shares or other interests representing any Transferred Company’s outstanding capital stock or equity securities, (iiB) whether directly or indirectly, purchase, redeem or otherwise acquire any shares or other interests representing outstanding capital stock or equity securities of any Transferred Company or any rights, warrants or options to acquire any such shares or interests or (C) amend the Organizational Documents of any Transferred Company, or adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or restructuringother reorganization, of any Transferred Company; (iv) issue, sell, grant, pledge or otherwise encumber any shares or other interests representing the capital stock of or Equity Interests in any Transferred Company, any other voting securities or any securities convertible into or exchangeable for any such shares or interests, or issue, sell, grant or enter into any subscription, warrant, option, conversion or other right, agreement, commitment, arrangement or understanding of any kind, contingent or otherwise, to purchase or otherwise acquire, any such shares or interests, or any securities convertible into or exchangeable for any such shares or interests; (iiiv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any other Person or substantially all the assets of any other Person; (vi) promise, grant or agree to increase the compensation or benefits of any Company Employee, other than (x) changes made in accordance with existing contractual commitments or (y) as contemplated by the terms of any Seller Benefit Plan in effect as of the date hereof and other than such changes that are generally applicable to employees of Seller and its Affiliates (and not specifically limited to Company Employees); (vii) (A) enter into a Material Contract any employment or severance agreement, (B) increase the benefits payable in the aggregate under severance or termination pay plans or policies, other than as required by Law or by the terms of any Seller Benefit Plan or Company Benefit Plan, (C) adopt any new or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment, insurance, pension, retirement, medical, hospital, disability, welfare or terminate any Material Contract in any material respect other employee benefit plan or grant any release, waiver or relinquishment policy for the benefit of any material rights director, officer or Company Employee, other than (x) amendments to bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment and employee benefit plans or policies which do not in the aggregate materially increase amounts otherwise payable under such plans or policies or (y) as contemplated by the terms of any Seller Benefit Plan in effect as of the date hereof and other than such changes that are generally applicable to employees of Seller and its Affiliates (and not specifically limited to Company Employees), (D) waive or amend the terms of any non-competition or non-solicitation agreement with any Company Employee or (E) make payments to Company Employees for the 2014 short-term incentive payments in excess of the aggregate amount set forth in Section 5.1(a)(vii) of the Seller Disclosure Letter in the aggregate or make any other payments to any Company Employee under any Material Contract, short-term incentive plan or long-term incentive plan in a manner that would reasonably be expected to materially delay or prevent the consummation excess of the Merger or any of the transactions contemplated therebytarget amounts specified for each Company Employee; (eviii) assumemake any material change in the accounting, guaranteeactuarial, endorse investment, reserving, underwriting or otherwise become liable claims administration policies, practices or responsible (whether directly, contingently or otherwise) for the obligations principles of any other Person Transferred Company, except as may be required by GAAP or SAP; (ix) make or authorize any capital expenditures that are, in the aggregate, in excess of $100,000 except other than maintenance, repair and upkeep in the Ordinary Course of Business; (x) incur, assume or guarantee any direct indebtedness for borrowed money or indirect wholly owned Subsidiaries guarantee the obligations of the Company or another Person; (xi) other than in connection with the Company’s retail products and other retail activities in the ordinary course management of business consistent with past practice; (f) Investment Assets, make any loans, advances or capital contributions to, or investments in, any other Person Person; (xii) pay, settle or compromise any Action or threatened Action, except for claims under policies and certificates of insurance within applicable policy limits and other than any direct settlement or indirect wholly owned Subsidiaries of the Company or in connection with the Company’s retail products and other retail activities in the ordinary course of business consistent with past practice) in excess of $100,000compromise that involves solely monetary damages; (g) change any financial accounting methods, principles or practices used by it, except as required by applicable Law; (i) change any annual Tax accounting period, (iixiii) make, change or rescind revoke any material Tax electionelection related to Taxes, (iii) amend any material Tax Return, (iv) adopt or change any accounting method for Tax purposes, (v) enter into any settlement settle or compromise of any material Tax liability, enter into any closing agreement related to Tax, agree to any adjustment of any a material Tax attribute, surrender or surrender file any right or claim to a material for refund of Taxes, consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, or change any taxable period or any Tax accounting method, in each case if such action could have the effect of increasing the Tax liability of any Transferred Company after the Closing Date or decreasing a Tax attribute of any Transferred Company; (vixiv) permit the Company to declare or pay any dividend or make any other distribution to its shareholders whether or not upon or in respect of any shares of its capital stock, other than cash dividends not in excess of $40,000,000; (xv) commute, terminate or amend any Insurance Contract, in each case other than any commutations or terminations of exposure to credit risk that is rated below Baa3 by Xxxxx’x or BBB- by S&P at a cost to the Company that is not in excess of the applicable unearned premium reserve; (xvi) amend the terms of any current insurance policy of the type referred to in Section 3.20 in a manner materially adverse to the Transferred Companies, taken as a whole, or allow any such policy to lapse without a concurrent replacement of such policy being in effect on commercially reasonable terms; (xvii) make any investments other than in accordance with the investment policies of the Company as of the date of this Agreement, or make any material amendments to such investment policies; or (xviii) enter into a closing binding agreement relating to any material Tax liability or that could bind the Company or any of the Company’s Subsidiaries after the Effective Date, or (vii) give or request any waiver or extension of a statute of limitation with respect to a material Tax Return, in each ease, other than as required by applicable Law or in the ordinary course of business; (i) adopt any amendment to its certificate of incorporation or bylaws (or equivalent governing documents); (j) grant any material severance or termination pay (other than pursuant to a Plan) which will become due and payable on or after the Effective Time (other than as required by applicable Law or in the ordinary course of business), or grant any material increases in the compensation or benefits payable to its officers or directors (except for increases in the ordinary course of business); (k) enter into any collective bargaining, works council or similar labor agreement; (l) adopt, enter into, materially amend or terminate any material Plan (other than as required by applicable Law, to reflect changes in plan administration, or in the ordinary course of business); (m) incur any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof (except for (i) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been provided or made available to Parent prior to the date of this Agreement and (ii) any unbudgeted capital expenditure in an amount not to exceed, in any year, in the aggregate, $500,000), including any long-term debt or short-term (except for short-term debt incurred in the ordinary course of business consistent with past practice to fund working capital requirements). (n) except as set forth on Section 6.1(n) of the Company Disclosure Letter, settle (i) any Legal Proceeding that is disclosed in the Company SEC Reports filed prior to the date hereof or (ii) any other Legal Proceeding; or (o) offer, agree or commit, in writing or otherwise, to take any of the foregoing actions. Notwithstanding the foregoing, nothing in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the business or operations of the Company or its Subsidiaries at any time prior to the Acceptance Time. Prior to the Acceptance Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their own business and operations.