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

Conduct of Business Pending the Merger. 6.1 Conduct of Business by the Company. During the period from the date of this Agreement to the Effective Time, except as otherwise contemplated by this Agreement, the Company shall, and shall cause each of the Company Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course, consistent with past practice, and use their best efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing): (i) declare, set aside or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) in respect of any of its capital stock, (ii) split, combine or reclassify any of its capital stock or (iii) repurchase, redeem or otherwise acquire any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose of any assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth in Section 6.1(c) of the Company Disclosure Schedule; (d) make any loans, advances or capital contributions other than in the ordinary course of business consistent with prior practice; (e) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (i) in the ordinary course of business consistent with past practice, or (ii) in connection with the Transactions; (f) change any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 109

Conduct of Business Pending the Merger. 6.1 Conduct (a) From the date hereof until the earlier of Business by (i) the Company. During the period from Effective Time and (ii) the date of any termination of this Agreement pursuant to the Effective TimeSection 8.1, except as otherwise contemplated consented to by Parent in writing (such consent not to be unreasonably withheld, conditioned or delayed), and except as otherwise contemplated, required or permitted by this Agreement, (A) the Company shallshall conduct business only in, and shall cause each of the Company and its Subsidiaries toshall not take any action except in, carry on their respective businesses in the usual, regular and ordinary course, course of business consistent with past practice, practice and (B) the Company shall use their best its commercially reasonable efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, its current officers and employees and preserve their preserve, in all material respects, the current relationships of the Company with customers, suppliers, licensors licensors, licensees, distributors and others having other Persons with which the Company has business dealings with them and continue existing contracts as in effect on the date hereof dealings. (for the term provided in such contracts). b) Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing): (i) declare, set aside or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) in respect of any of its capital stock, (ii) split, combine or reclassify any of its capital stock or (iii) repurchase, redeem or otherwise acquire any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a6.1(b) of the Company Disclosure Schedule Letter or as otherwise contemplated, required or permitted by this Agreement, applicable Law or the terms of any Company Benefit Plan or as consented to by Parent in writing (collectivelysuch consent not to be unreasonably withheld, conditioned or delayed), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier of (i) the Effective Time and (ii) the date of any termination of this Agreement pursuant to Section 8.1, the "Rollover Stockholders"Company shall not do any of the following and shall not permit its Subsidiaries to do any of the following: (i) upon amend, or propose to adopt any amendments to, the exchange Company’s or its Subsidiaries’ respective certificate of such shares for shares of Series B Stock in connection with the Transactionsincorporation or bylaws or comparable organizational documents; (bii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase, convertible, exchangeable or exercisable securities, rights of any kind to purchase or otherwise) any stock securities in respect of, in lieu of any class or in substitution for shares of its capital stock, voting securities or any other equity interests or Company Stock Rights or other interests or securities in Subsidiaries that would be Company Stock Rights if they were interests or securities in the Company; (including indebtedness having the right to voteiii) acquire or equity equivalents (includingredeem, without limitationdirectly or indirectly, stock appreciation rights)or amend any securities in respect of, other than (X) the issuance in lieu of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement or in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange substitution for shares of Common Stock its capital stock, except to the extent that such acquisition or redemption is required pursuant to the terms of any Company Benefit Plan (as then in connection with the Transactionseffect) or any agreement subject to any such Company Benefit Plan (as then in effect); (civ) acquireother than dividends or distributions made by any direct or indirect wholly-owned Subsidiary of the Company to the Company or one of its Subsidiaries, sell, lease, encumber, transfer set any record or dispose payment dates for the payment of any assets outside dividends or distributions on capital stock or other equity interests, split, combine or reclassify any shares of capital stock or other equity interests of the Company or its Subsidiaries, declare, set aside or pay any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of any such shares of capital stock or other equity interests, or make any other distribution in respect of such shares of capital stock or other equity interests; (v) propose or adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries; (vi) (A) except as reasonably necessary or appropriate in order to comply with municipal platting, planning, construction and development codes or requirements in the ordinary course of business (but in no event for an amount that exceeds $100,000) incur Indebtedness for borrowed money or issue any debt securities except for loans or advances to or from Subsidiaries, or assume, guarantee, endorse or otherwise become liable or responsible (whether by asset acquisitiondirectly, stock acquisition contingently or otherwise)) for the obligations of any other Person, except as set forth in Section 6.1(c) of the Company Disclosure Schedule; (d) make any loanseach case, advances or capital contributions other than the incurrence of Indebtedness under, and in accordance with, the Existing Loan Documents secured solely by Owned Real Property, Leased Real Property or JV Owned Real Property in the ordinary course of business consistent with past practice (provided that, in the event that any borrowing will exceed $500,000 under any Existing Loan Document, the Company shall give Parent reasonable advance notice prior to the incurrence of any such Indebtedness), (B) make any loans or advances to any Person, make any material change in its existing borrowing or lending arrangements for or on behalf of any Person or enter into any “keep well” or similar agreement to maintain the financial condition of another entity, (C) acquire, or make any capital contributions to or investments in any other Person (other than direct or indirect wholly-owned Subsidiaries of the Company), by purchase or other acquisition of stock or other equity interests (other than in a fiduciary capacity in the ordinary course of business consistent with past practice), whether by merger, consolidation, asset purchase or other business combination, or by formation of any joint venture or other business organization or by contributions to capital; (D) mortgage or pledge any of its or its Subsidiaries assets, tangible or intangible, or create or suffer to exist any material Lien (other than Permitted Liens) thereupon; or (E) prepay any Indebtedness for borrowed money or issue or amend the terms of any debt securities of the Company or any of its Subsidiaries; (evii) pay(A) enter into, discharge adopt, amend, modify or satisfy terminate any claimsemployment, liabilities bonus, profit sharing, compensation, severance, termination, option, appreciation right, performance unit, stock equivalent, share purchase agreement, pension, retirement, deferred compensation, severance or obligations other Company Benefit Plan or employee benefit arrangement, agreement, trust, plan, fund, Contract or other arrangement for the compensation, benefit, or welfare of any current or former employee, director or consultant of the Company or any of its Subsidiaries, (absoluteB) otherwise take any action to cause to accelerate the payment, accruedfunding, asserted right to payment or unassertedvesting of any compensation or benefits (except as required pursuant to this Agreement) or grant any increases to the compensation, contingent severance or benefits of any current or former employee, director or consultant of the Company or any of its Subsidiaries or pay any bonus or special remuneration (whether in cash, equity or otherwise) to any current or former employee, consultant, independent contractor or director; (C) hire or terminate (without cause) any employee or service provider of the Company or its Subsidiaries with an aggregate annual compensation opportunity of $100,000 or more; or (D) appoint any Person to a position of executive officer or director of the Company or its Subsidiaries; (viii) except as may be specifically required under a Company Benefit Plan, grant, confer, award, or modify the terms of any options, convertible securities, restricted stock, phantom shares, equity-based compensation or other rights to acquire, or denominated in, any of the Company’s or any of its Subsidiaries’ capital stock or other voting securities or equity interests (except as may be required by the terms of any unexercisable options or other equity awards outstanding on the date of this Agreement), ; (ix) other than transactions required pursuant to existing Contracts as in effect on the date hereof and disclosed in the Company Disclosure Letter, (A) acquire, lease (as lessee) or license (as licensee) any payment, discharge property or satisfaction assets; or (iB) other than the sale of lots owned by the Company as of the date hereof in the ordinary course of business consistent with past practice, sell, lease (as lessor), license (as licensor) or dispose of any property or assets (iiincluding, for the avoidance of doubt, any Owned Real Property), in each case of clause (A) in connection or clause (B), with the Transactionsan individual value greater than $100,000; (fx) except as may be required as a result of a change in applicable Laws or in GAAP, make any change in any of the accounting principles or practices used by it or fail to maintain all financial books and records in all material respects in accordance with GAAP; (xi) (A) make, change or revoke any Tax election that would be reasonably expected to adversely affect in any material respect the Tax liability of the Company or any of its Subsidiaries, (B) change any material Tax accounting method, (C) settle or compromise any material U.S. federal, state, local or non-U.S. Tax liability, (D) consent to any extension or waiver of any limitation period with respect to any claim or assessment for material Taxes, (E) file any amended material Tax Return with respect to any Tax, or (F) surrender any right to a refund of material Taxes; (xii) (A) enter into, renew, extend or terminate (other than the termination or expiration of a Material Contract as in effect as of the date hereof pursuant to its terms) any Material Contract (or any Contract that would have been a Material Contract if it had been in effect on the date hereof, but specifically excluding any Material Real Property Leases), except as required by generally accepted accounting principlesin the ordinary course of business consistent with past practice with respect to (1) any such Material Contract described solely in clause (iv) of the definition of “Material Contract” or (2) subject to clauses (ix) and (xxi) of this Section 6.1(b), in which case written notice shall be provided to MergerCo prior any sale agreement; or (B) make any material amendment or change to any such changeMaterial Contract (including any waiver, release, compromise or assignment of material rights or claims thereunder, but specifically excluding any Material Real Property Leases), except in the ordinary course of business consistent with past practice with respect to any amendment or change that would not itself alone result in such Contract being a Material Contract (other than pursuant to clause (iv) of the definition of “Material Contract”) and which amendment or change does not involve payments to or from the Company or any of its Subsidiaries of more than $200,000 during any twelve-month period; (gxiii) except as required by lawapplicable Law, recognize or certify any labor union, labor organization, works council, or group of employees of the Company or its Subsidiaries as the bargaining representative for any employees of the Company or its Subsidiaries; (xiv) except for the Litigation referred to in Section 6.6, settle or compromise any pending or threatened Litigation or pay, discharge or satisfy or agree to pay, discharge or satisfy any claim, liability or obligation, absolute or accrued, asserted or unasserted, contingent or otherwise, other than the settlement, compromise, payment, discharge or satisfaction of Litigation, claims and other liabilities that (A) are reflected or reserved against in full in the Company Financial Statements, (iB) are covered by insurance policies or (C) otherwise do not involve the payment of money in excess of $150,000 in the aggregate, in each case where the settlement, compromise, discharge or satisfaction of which does not include any obligation to be performed by the Company or its Subsidiaries following the Effective Time; (xv) enter into, adopt, amend into any Contract or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy arrangement between the Company or any of its Subsidiaries, on the one hand, and any Affiliates of Company Subsidiaries (other than terminations of agreementsits Subsidiaries), arrangementson the other hand; (xvi) fail to use reasonable best efforts to maintain in full force and effect the existing insurance policies or to replace such insurance policies with reasonably comparable insurance policies, plans to the extent available on commercially reasonable terms, covering the Company, its Subsidiaries and their respective properties, assets and businesses; (xvii) form any new joint ventures or policies in accordance with materially modify the terms thereof of any existing on the date of this Agreementjoint ventures with third parties; (xviii) and one amend or more of their directors or officers, or (iii) increase in any manner modify the compensation terms or fringe benefits any other obligations of any director of Company contained in the Company or the compensation or fringe benefits of any officer of the engagement letter with JMP Securities LLC in a manner adverse to Company or any Company Subsidiary set forth of its Subsidiaries or the Surviving Entity or engage other financial advisers in Section 6.1(gconnection with the transactions contemplated by this Agreement or the Related Agreements; (xix) of the Company Disclosure Schedule, or, except for normal increases other than in the ordinary course of business consistent with past practice, initiate or consent to (A) any employee material zoning reclassification of any Owned Real Property or Leased Real Property or (B) any material change to any approved site plan, special use permit, planned unit development approval or other land use entitlement affecting any Owned Real Property or Leased Real Property; (xx) other than in the Company ordinary course of business consistent with past practice, enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any material rights or claims under, any Material Real Property Lease (or any Company Subsidiarylease for real property that, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect if existing as of the date hereofof this Agreement, would be a Material Real Property Lease) or enter into any other lease of real property with a term in excess of one year; (hxxi) adopt other than in the ordinary course of business consistent with past practice, sell, license, mortgage, pledge, assign, transfer, dispose of, abandon, or encumber, or effect a deed in lieu of foreclosure with respect to, any amendments Owned Real Property or other property or assets (except for Permitted Liens), in each case, with an individual value greater than $100,000 (or, in the case of Intellectual Property, that is material to the Articles Company); (xxii) enter into any new line of Organization business; (xxiii) (A) purchase any “non-core” asset or Bylawsright (e.g., mineral rights, surface rights, multifamily or other developed residential or commercial property, real property held primarily for the purpose of resource extraction, groundwater leases or timberland assets) or any other asset or right not purchased in furtherance of the Company and its Subsidiaries’ core community development business or (B) invest or spend or commit to invest or spend any amounts with respect to such “non-core” assets other than as may reasonably be required in the ordinary course of business consistent with past practice or to preserve the value of such assets or to prepare them for sale; (xxiv) make, authorize, enter into any commitment for, or make a capital contribution to any Joint Venture for, any new capital expenditure (such new capital expenditures being referred to hereinafter as the “Capital Expenditures”), other than (X) Capital Expenditures in the ordinary course of business consistent with past practice for continuation of development of existing phases of Owned Real Property and JV Owned Real Property currently under construction and in an amount not to authorize exceed, in each case, 110% of the shares aggregate budgeted amount as reflected in the applicable property level budget of Series B Stock to be issued to the Rollover Stockholders and to establish the rightsCompany, preferences and designations thereof (such rights, preferences and designations copies of such Series B Stock shall be which are attached as set forth in Section 6.1(h6.1(b)(xxiv) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable lawLetter; or (lxxv) enter into an agreement a Contract to take do any of the foregoing actions. A-18 109or make any formal or informal arrangement or understanding, whether or not binding, with respect to any of the foregoing.

Conduct of Business Pending the Merger. 6.1 Conduct of Business by the Company. During the period from the date of this Agreement The Shareholders and Aerocom covenant and agree, prior to the Effective Time, except unless Unique shall otherwise agree in writing (which agreement will not be unreasonably withheld or delayed) or as otherwise expressly permitted or contemplated by this Agreement, Agreement that: (a) the Company shall, and business of Aerocom shall cause each of the Company Subsidiaries to, carry on their respective businesses be conducted only in the usual, regular ordinary course of business and ordinary course, consistent with past practice, practice and use their best efforts to preserve intact their present Aerocom shall not (i) make any material change in its operations including any general overall increase in pricing (which shall not prohibit price increases in the normal and ordinary course of business) or (ii) purchase or sell any significant properties or assets outside of the ordinary course of business organizations, keep available or which would result in Aerocom owning in the services aggregate an amount of their present advisors, managers, officers properties and employees assets less than the aggregate amount of properties and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect assets owned by Aerocom on the date hereof (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing):hereof; (b) Aerocom shall not (i) split, combine or reclassify any shares of its capital stock or (ii) declare, set aside or pay any dividend or other distribution (whether or make any payment in cash, stock, stock or property or any combination thereof) in respect of any shares of its capital stock; (c) Aerocom shall not (i) amend its Articles of Incorporation or Bylaws, (ii) issue or sell any shares of, or rights of any kind to acquire any shares of or to receive any payment based on the value of, its capital stock or any securities convertible into shares of any such capital stock, (iii) incur any indebtedness other than trade credits or working capital loans drawn on Aerocom's existing line of credit in the ordinary course of business, (iv) acquire, directly or indirectly, by redemption or otherwise, any shares of its capital stock, (iiv) splitcancel or decrease any existing insurance coverage, combine or reclassify (vi) modify any existing contract, agreement, commitment or arrangement with respect to any of its capital stock or (iii) repurchase, redeem or otherwise acquire any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose of any assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth in Section 6.1(c) of the Company Disclosure Scheduleforegoing; (d) make Aerocom shall use its best efforts to preserve intact its business organization, to keep available the services of its current officers and key employees, and to preserve the goodwill of those having business relationships with it; (e) Aerocom shall not (i) increase in any loansmanner the compensation of any of its executive officers or key employees, advances (ii) increase in any manner the compensation of any of its other officers or capital contributions employees, except in the ordinary course of business, (iii) pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing plan, agreement or arrangement with any director, officer or key employee, whether past or present, (iv) except as required by the terms of any existing plan, agreement or arrangement, adopt or commit itself to or enter into any additional pension, profit-sharing, bonus, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or to any employment or consulting agreement with or for the benefit of any director, officer or employee, whether past or present or (v) amend any such plan, agreement or arrangement; #352586.v6, January 12, 1998 (6:58am) 16 (f) other than pursuant to commitments set forth in Section 4.5 of the Disclosure Schedule and other than in the ordinary course of business and consistent with prior past practice, Aerocom shall not make any capital expenditures or commitments for capital expenditures which individually exceed $25,000 or which in the aggregate exceed $100,000; (eg) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (i) in the ordinary course of business and consistent with past practice, Aerocom shall not waive any rights of substantial value or (ii) in connection with make any payment, direct or indirect, of any material liability of such Company before the Transactions; (f) change any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies same comes due in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereofits terms; (h) adopt Aerocom shall not lease, mortgage, encumber or otherwise grant any amendments to interest in any of its assets or properties, except for liens for current taxes not yet due and liens or encumbrances that are not substantial in amount and do not materially detract from the Articles of Organization value or Bylaws, other than (X) to authorize impair the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) use of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreementproperty subject thereto; (i) except Aerocom shall, at all times up to and including the Effective Time, maintain its existing insurance coverage of all types in effect or procure substantially similar substitute insurance policies with financially sound and reputable insurance companies in at least such amounts and against such risks as set forth in Section 5.1 of the Company Disclosure Schedule, adopt a plan of complete or partial liquidation or resolutions providing for or authorizing are currently covered by such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;policies; and (j) settle Aerocom shall not agree, in writing or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waiveotherwise, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the actions prohibited by the foregoing actions. A-18 109clauses (a) through (j).

Conduct of Business Pending the Merger. 6.1 Conduct (a) Except as expressly permitted by clauses (i) through (xvii) of Business by the Company. During this Section 4.1(a), during the period from the date of this Agreement to through the Effective Time, except as otherwise contemplated by this Agreement, the Company shall, and shall cause each of the Company its Subsidiaries to, in all material respects carry on their respective businesses its business in the usualordinary course of its business as currently conducted and, regular and ordinary courseto the extent consistent therewith, consistent with past practice, and use their reasonable best efforts to preserve intact their present its current business organizations, keep available the services of their present advisors, managers, its current officers and employees and preserve their its relationships with customers, suppliers, licensors suppliers and others having business dealings with them it to the end that its goodwill and continue existing contracts as in effect on ongoing business shall be unimpaired at the date hereof (for the term provided in such contracts)Effective Time. Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (and except as otherwise expressly permitted contemplated by this Agreement or as contemplated by set forth in Section 4.1 of the Transactions or Company Letter (with specific reference to the extent that Parent or MergerCo applicable subsection below), the Company shall otherwise not, and shall not permit any of its Subsidiaries to, without the prior written consent in writing):of Parent: (iA) declare, set aside or pay any dividend dividends on, or make any other distribution (whether in cashactual, stock, property constructive or any combination thereof) deemed distributions in respect of of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such, (iiB) 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, (iiiC) repurchasepurchase, redeem or otherwise acquire any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders capital stock of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (including indebtedness having D) amend the right to voteRights Agreement; (ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalents (includingequivalent or any securities convertible into, without limitationor any rights, stock appreciation rights)warrants or options to acquire any such shares, voting securities, equity equivalent or convertible securities, other than (XA) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and current terms, (YB) the issuance of the Series B shares of Company Common Stock pursuant to the Rollover Stockholders in exchange for Stock Option Agreement and (C) the issuance of Company Stock Options to purchase up to 800,000 shares of Company Common Stock in connection with the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose of any assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth in Section 6.1(c) consistent with past practice to newly hired employees who are not officers of the Company Disclosure Scheduleor any of its Subsidiaries (provided that no individual receives Company Stock Options to purchase in excess of 12,500 shares of Company Common Stock); (diii) amend its charter or by-laws or other comparable charter or organizational documents; (iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets, other than assets acquired in the ordinary course of business and not material to the Company and its Subsidiaries taken as a whole; (v) sell, lease, license (as licensor of Intellectual Property Rights of the Company), mortgage, encumber or otherwise dispose any of its properties or assets, other than sales, leases or licenses of products or services in the ordinary course of business and not material to the Company and its Subsidiaries taken as a whole; (vi) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than indebtedness, loans, advances, capital contributions and investments between the Company and any of its wholly owned Subsidiaries or between any of such wholly owned Subsidiaries or cash management activities carried on in the ordinary course of business consistent with prior past practice; (evii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company (other than as provided in Sections 4.1(a)(ii)(A), (B) and (C)) or any Subsidiary; (viii) enter into, adopt or amend any severance plan, agreement or arrangement, Company Plan or employment or consulting agreement, except as required by applicable law and except for entering into any consulting agreements in the ordinary course of business consistent with past practice; (ix) increase the compensation payable or to become payable to its directors, officers or employees (except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not officers of the Company or any of its Subsidiaries) or grant any severance or termination pay to, or enter into or amend any employment or severance agreement with, any current or former director or officer of the Company or any of its Subsidiaries, or establish, adopt, enter into, or, except as may be required to comply with applicable law, amend or take action to enhance or accelerate any rights or benefits under, any labor, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any current or former director, officer or employee; (x) knowingly violate or knowingly fail to perform any obligation or duty imposed upon it or any Subsidiary by any applicable material federal, state or local law, rule, regulation, guideline or ordinance; (xi) make any change to accounting policies or procedures (other than actions required to be taken by generally accepted accounting principles); (xii) 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; (xiii) make any tax election or settle or compromise any material federal, state, local or foreign income tax liability; (xiv) enter into, amend or terminate any noncompetition agreement or any agreement or contract pursuant to which any third party is granted marketing, distribution, material manufacturing or any exclusive rights with respect to any Company product, process or technology; amend the Noncompetition Agreements or make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $10,000,000 or, in the aggregate, are in excess of $60,000,000 at any time prior to October 31, 1998 (or in excess of $80,000,000 at any time); (xv) waive or release any material right or claim, or pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any the payment, discharge or satisfaction (i) satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in the most recent Company SEC Documents filed prior to the date hereof, or incurred in the ordinary course of business consistent with past practice, or (ii) in connection with the Transactions; (fxvi) change initiate any litigation or arbitration proceeding or settle or compromise any material litigation or arbitration proceeding; or (xvii) authorize, recommend, propose or announce an intention to do any of the accounting principles foregoing, or practices used by it (except as required by generally accepted accounting principlesenter into any contract, in which case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan commitment or policy between the Company or arrangement to do any of the Company Subsidiaries foregoing. (other than terminations of agreements, arrangements, plans or policies in accordance with b) During the terms thereof existing on period from the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner Agreement to the compensation or fringe benefits of any director Effective Time of the Company or Merger, Parent shall not, and shall not permit any of its Subsidiaries to, without the compensation or fringe benefits of any officer prior written consent of the Company or any Company Subsidiary Company: (i) declare, set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiaryaside, or pay any benefit not required by cash dividends on, or make any Company Benefit Plan or arrangement as other cash distributions in effect as respect of, any capital stock of the date hereofParent; (hii) adopt any amendments to amend the Articles of Organization Parent Charter or the Parent Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (iiii) except as set forth in Section 5.1 alter (through liquidation, reorganization or restructuring) the corporate structure of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable lawParent; or (liv) enter into authorize, recommend, propose or announce an agreement intention to take do any of the foregoing actionsforegoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. A-18 109Notwithstanding the foregoing, nothing contained in this Agreement shall prohibit Parent from adopting a stockholder rights plan and issuing securities pursuant thereto or amending the Parent Charter to increase the number of shares authorized thereby or amending the Parent Bylaws to change the number of directors of Parent.

Conduct of Business Pending the Merger. 6.1 Conduct (a) Except as expressly permitted by clauses (i) through (xvii) of Business by the Company. During this Section 4.1, during the period from the date of this Agreement to through the Effective Time, except as otherwise contemplated by this Agreement, the Company shall, and shall cause each of the Company its Subsidiaries to, in all material respects carry on their respective businesses its business in the usualordinary course of its business as currently conducted and, regular and ordinary courseto the extent consistent therewith, consistent with past practice, and use their best commercially reasonable efforts to preserve intact their present its current business organizations, keep available the services of their present advisors, managers, its current officers and employees and preserve their its relationships with customers, suppliers, licensors suppliers and others having business dealings with them it to the end that its goodwill and continue existing contracts as in effect on ongoing business shall be unimpaired at the date hereof (for the term provided in such contracts)Effective Time. Without limiting the generality of the foregoing, neither and except as otherwise expressly contemplated by this Agreement, the Company nor shall not, and shall not permit any of its Subsidiaries to, without the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise prior written consent in writing): of Parent: (i) (A) declare, set aside or pay any dividend dividends on, or make any other distribution (whether in cashactual, stock, property constructive or any combination thereof) deemed distributions in respect of of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such (iiother than dividends by the Company's Subsidiaries to the Company), (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iiiC) repurchasepurchase, redeem or otherwise acquire any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders capital stock of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (including indebtedness having the right to voteii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other equity interests or equity equivalents (includingequivalent or any securities convertible into, without limitationor any rights, stock appreciation rights)warrants or options to acquire any such shares, equity interests, equity equivalent or convertible securities, other than (X) the issuance of shares of Company Common Stock upon pursuant to the exercise of Company Stock Options outstanding on as of the date of this Agreement Agreement, in each case, in accordance with their present terms and its current terms; (Yiii) amend the issuance Company Charter or Company Bylaws or other comparable charter or organizational documents of any of its Subsidiaries; (iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the Series B Stock assets of or equity in, or by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof or otherwise acquire or agree to the Rollover Stockholders acquire any assets, other than assets acquired in exchange for shares of Common Stock in connection with the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose of any assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth in Section 6.1(c) of consistent with past practice and not material to the Company Disclosure Schedule; and its Subsidiaries taken as a whole; (dv) sell, transfer, lease, license, mortgage, pledge, encumber or otherwise dispose of any of its properties or assets, other than sales, leases or licenses of products or services in the ordinary course of business consistent with past practice and other than sales, leases or licenses of products or services involving less than $50,000 in the aggregate; (vi) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other Person, other than (A) indebtedness for borrowed money under its Credit Agreement, dated as of March 24, 1998, between the Company and certain of its Subsidiaries and First Union National Bank, as amended, provided that the aggregate principal amount outstanding at any time under such agreement would not exceed $15.9 million, (B) indebtedness, guarantees, loans, advances, capital contributions and investments between the Company and any of its wholly-owned Subsidiaries or between any of such wholly-owned Subsidiaries, (C) cash management activities carried on in the ordinary course of business consistent with past practice, and (D) advances to employees for travel and related business expenses consistent with Company policies and past practices; (vii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any Subsidiary; (viii) enter into, adopt or amend any severance plan, agreement or arrangement, Company Plan or employment or consulting agreement, including, without limitation, the Company Stock Options; (ix) except as set forth in Section 4.1 (a)(ix) of the Company Letter, increase the compensation or benefits payable or to become payable to its directors, officers or employees or grant any severance or termination pay to, or enter into or amend any employment or severance agreement with, any current or former director or officer of the Company or any of its Subsidiaries, except, in case of employees other than directors or officers, in the ordinary course of business consistent with the Company's past practice in connection with annual compensation reviews but in no event to exceed a 5% increase in the aggregate, or establish, adopt, enter into, or, except as may be required to comply with applicable law, amend or take action to enhance or accelerate any rights or benefits under, any labor, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement, including the Company Stock Plan, for the benefit of any current or former director, officer or employee; (x) knowingly violate or knowingly fail to perform any obligation or duty imposed upon it or any Subsidiary by any applicable material federal, state or local law, rule, regulation, guideline or ordinance; (xi) make any change to accounting policies or procedures (other than actions required to be taken by GAAP); (xii) except as set forth in Section 4.1(a)(xii) of the Company Letter, 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 practice; periods; (exiii) settle or compromise any material federal, state, local or foreign income Tax liability; (xiv) enter into, amend, waive any rights under or terminate (a) any agreement or contract material to the Company and its Subsidiaries, taken as a whole, (b) any Member Agreement, (c) any noncompetition agreement, or (d) any agreement pursuant to which any third party is granted marketing, distribution, manufacturing or any other related rights with respect to any Company product, services, processes or technology; or, except as set forth in Section 4.1(a)(xiv) of the Company Letter, incur, make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $50,000 or, in the aggregate, are in excess of $200,000; (xv) waive or release any material right or claim, or pay, discharge or satisfy any material claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than any the payment, discharge or satisfaction (i) satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in the Balance Sheet or incurred in the ordinary course of business consistent with past practice; (xvi) initiate, settle or compromise any litigation or arbitration proceeding; (iixvii) in connection with the Transactions; (f) change any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of permit any director of the Company or the compensation or fringe benefits to hold any shares of any officer of Company Common Stock or, other than the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required Stock Options owned by any Company Benefit Plan or arrangement as in effect Xxxxxx X. Xxxxxxx as of the date hereof; (h) adopt , permit any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) director of the Company Disclosure Scheduleto be granted or to hold any Company Stock Options; or (xviii) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Scheduleauthorize, adopt a plan of complete recommend, propose or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure announce an intention to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 109foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.

Conduct of Business Pending the Merger. 6.1 Section 5.1 Conduct of Business by RBI Pending the CompanyMerger. During the period from the date of this Agreement Prior to the Effective Time, except unless Parent shall otherwise agree in writing, or as otherwise expressly contemplated by this Agreement, the Company shall, and : (a) RBI shall cause each of the Company Subsidiaries to, carry on their respective businesses conduct its business only in the usual, regular ordinary and ordinary course, usual course consistent with past practice, and RBI shall use their best its reasonable efforts to preserve intact their the present business organizationsorganization, keep available the services of their its present advisors, managers, officers and employees key employees, and preserve their the goodwill of those having business relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing):it; (b) RBI shall not (i) amend its charter or bylaws, (ii) split, combine or reclassify any shares of its outstanding capital stock, (iii) declare, set aside or pay any dividend or other distribution (whether payable in cash, stockstock or property (except for dividends consistent with RBI's past practice, property provided, however, that such dividend would not prevent the accounting for the Merger as a pooling of interests for financial reporting purposes), or (iv) directly or indirectly redeem or otherwise acquire any combination thereof) in respect of any of its capital stock, (ii) split, combine or reclassify any shares of its capital stock or (iii) repurchase, redeem or otherwise acquire any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactionscapital stock; (bc) RBI shall not (i) authorize for issuance, issue, sell, deliver issue or sell or agree to issue or commit sell any shares of, or Rights to issueacquire or convertible into any shares of, sell or deliver its capital stock (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (Xii) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement merge or consolidate with another entity, (iii) acquire or purchase an equity interest in accordance with their present terms and (Y) the issuance or a substantial portion of the Series B Stock to the Rollover Stockholders in exchange for shares assets of Common Stock in connection with the Transactions; (c) acquireanother corporation, sell, lease, encumber, transfer partnership or dispose of other business organization or otherwise acquire any assets outside the ordinary and usual course of business and consistent with past practice or otherwise enter into any contract, commitment or transaction outside the ordinary and usual course of business consistent with past practice, (iv) sell, lease, license, waive, release, transfer, encumber or otherwise dispose of any of its assets outside the ordinary and usual course of business and consistent with past practice, (v) incur, assume or prepay any indebtedness or any other liabilities other than in the ordinary course of business and consistent with past practice, (vi) assume, guarantee, endorse or otherwise become liable or responsible (whether by asset acquisitiondirectly, stock acquisition contingently or otherwise)) for the obligations of any other person, except as set forth in Section 6.1(c) of the Company Disclosure Schedule; (dvii) make any loans, advances or capital contributions to, or investments in, any other person, (viii) authorize or make capital expenditures in excess of the amounts currently budgeted therefor, (ix) permit any insurance policy naming RBI as a beneficiary or a loss payee to be canceled or terminated other than in the ordinary course of business consistent business, or (x) enter into any contract, agreement, commitment or arrangement with prior practicerespect to any of the foregoing; (ed) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction RBI shall not (i) adopt, enter into, terminate or amend (except as may be required by Applicable Law) any Plan or other arrangement for the current or future benefit or welfare of any director, officer or current or former employee, (ii) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases in salaried compensation in the ordinary course of business consistent with past practice), or (iiiii) take any action to fund or in connection any other way secure, or to accelerate or otherwise remove restrictions with respect to, the Transactionspayment of compensation or benefits under any employee plan, agreement, contract, arrangement or other Plan; (e) RBI shall not take any action with respect to, or make any change in, its accounting or tax policies or procedures, except as required by law or to comply with GAAP; (f) change any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice RBI shall be provided to MergerCo prior to any such change); (g) except as required by law, not (i) enter into, adopt, amend take or terminate allow to be taken any Company Benefit Plan, action which would jeopardize the treatment of Parent's acquisition of RBI as a pooling of interests for accounting purposes; or (ii) enter into, adopt, amend or terminate take any agreement, arrangement, plan or policy between the Company or any action which would jeopardize qualification of the Company Subsidiaries (other than terminations Merger as a reorganization within the meaning of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g368(a) of the Company Disclosure ScheduleCode. Section 5.2 Conduct of Business by Parent Pending the Merger. Prior to the Effective Time, orunless RBI shall otherwise agree in writing, except for normal increases in the ordinary course of business consistent with past practiceor as otherwise expressly contemplated by this Agreement, neither Parent nor Sub shall take any employee action which would jeopardize qualification of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement Merger as in effect as a reorganization within the meaning of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h368(a) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 109Code.

Conduct of Business Pending the Merger. 6.1 Conduct of Business by the Company. During the period from the date ---------------------------------- of this Agreement to the Effective Time, except as otherwise contemplated by this Agreement, the Company shall, and shall cause each of the Company Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course, consistent with past practice, and use their best efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing): (i) declare, set aside or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) in respect of any of its capital stock, (ii) split, combine or reclassify any of its capital stock or (iii) repurchase, redeem or otherwise acquire any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock (A) from holders of Warrants or Options in full or partial payment of the exercise price payable by such holders upon exercise of Warrants and Options outstanding on the date of this Agreement and Agreement, or (YB) the acquisition of shares of Common Stock from the stockholders former employees of the Company set forth in Section 6.1(a) or any of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") Subsidiaries upon the exchange termination of such shares for shares of Series B Stock in connection their employment with the TransactionsCompany or such Company Subsidiary pursuant to management stock repurchase agreements in force as of the date of this Agreement; (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), ) other than (X) the issuance of shares of Common Stock upon the exercise of Warrants and Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactionsterms; (c) acquire, sell, lease, encumber, transfer or dispose of any assets outside the ordinary course of business which are material to the Company or any of the Company Subsidiaries (whether by asset acquisition, stock acquisition or otherwise), except as set forth pursuant to obligations in Section 6.1(c) of effect on the Company Disclosure Scheduledate hereof; (d) (i) incur any amount of indebtedness for borrowed money, guarantee any indebtedness, issue or sell debt securities or warrants or rights to acquire any debt securities, guarantee (or become liable for) any debt of others, make any loans, advances or capital contributions contributions, mortgage, pledge or otherwise encumber any material assets, create or suffer any material lien thereupon, other than (A) in the ordinary course of business consistent with prior practice, and (B) loans to European Option Holders (as defined in Section 7.12 below), in the amount of the exercise price payable to the Company in respect of the exercise of Options held by such European Option Holder pursuant to and in accordance with Section 7.12 below, provided that any such loan shall -------- be secured by a pledge to the Company effective under applicable law of all of the shares of Common Stock acquired by such European Option Holder upon such exercise, and provided, further, that any such loan shall be evidenced by -------- documentation in form reasonably acceptable to Parent, or (ii) incur any short- term indebtedness for borrowed money, except, in each such case, pursuant to credit facilities in existence on the date hereof; (e) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (i) in the ordinary course of business consistent with past practice, or (ii) in connection with the Transactions; (f) change any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to Parent and MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, increase in any manner the compensation or fringe benefits of any director, officer or employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles Certificate of Organization Incorporation or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be except as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement)) other than settlements or compromises of litigation where the amount to be paid (after giving effect to insurance proceeds actually received) by the Company or any Company Subsidiary in settlement or compromise does not exceed $250,000; (k) waive, release or amend its rights under make any confidentiality, "standstill" or similar agreement that capital expenditures in excess of $50,000 in any one instance other than those reflected in the capital budgets set forth in Section 6.1 of the Company entered Disclosure Schedule; (l) enter into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release any long-term sales or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable lawsupply agreements; or (lm) enter into an agreement to take any of the foregoing actions. A-18 109.

Conduct of Business Pending the Merger. 6.1 Conduct of Business Xxxxxxxx agrees that, except as expressly contemplated by the Company. During this Agreement, during the period from the date of this Agreement to and continuing until the Effective Time, except as otherwise contemplated by this Agreement, the Company shall, and : (a) The business of Xxxxxxxx shall cause each of the Company Subsidiaries to, carry on their respective businesses be conducted only in the usual, regular ordinary and ordinary course, usual course of business and consistent with past practice, and use their best efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof practices; (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo b) Xxxxxxxx shall otherwise consent in writing): not (i) amend its Articles of Incorporation or Bylaws; or (ii) split, combine or reclassify any shares of its outstanding capital stock, declare, set aside or pay any dividend or other distribution (whether payable in cash, stock, stock or property or any combination thereof) in respect of any of its capital stock, (ii) splitor directly or indirectly redeem, combine purchase or reclassify otherwise acquire any shares of its capital stock or (iii) repurchase, redeem or otherwise acquire any of its other securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (bc) Xxxxxxxx shall not (i) authorize for issuance, issue, sell, pledge, dispose of, encumber, deliver or agree or commit to issue, sell sell, pledge, or deliver any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (cii) acquire, selldispose of, transfer, lease, encumberor license, transfer any fixed or dispose of any other substantial assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth in Section 6.1(c) of the Company Disclosure Schedule; (d) make any loans, advances or capital contributions other than in the ordinary course of business and consistent with prior practicepast practices; (iii) incur, assume or prepay any material indebtedness, liability or obligation or any other material liabilities or issue any debt securities; (iv) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person; (v) make any material loans, advances or capital contributions to, or investments in, any other person; (vi) fail to maintain adequate insurance consistent with past practices for its business; (vii) take any action described in items (i) through (x) of Section 5.6 without the consent of the Buyer; or (viii) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; (ed) payXxxxxxxx shall use reasonable efforts to maintain the Assets, discharge or satisfy any claimsto preserve intact its business organization, liabilities or obligations (absoluteto keep available the services of its present officers and key employees, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (i) in the ordinary course of business consistent with past practice, or (ii) in connection with the Transactions; (f) change any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish preserve the rights, preferences and designations thereof (such rights, preferences and designations goodwill of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection those having business relationships with its consideration of a potential strategic transactionit; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a no breach of its fiduciary duties this covenant shall be deemed to have occurred as a result of any matter arising out of the transactions contemplated by this Agreement or the public announcement thereof; (e) Xxxxxxxx shall use all reasonable efforts to prevent any representation or warranty of Xxxxxxxx herein from becoming materially untrue or incorrect in any material respect; and (f) Notwithstanding anything to the Companycontrary in subsections (a) through (e) above, Xxxxxxxx shall be permitted to take the following actions: (i) pay any judgment or settlement of pending legal claims (including penalties, fees, or taxes related thereto) provided that Xxxxxxxx will not without Buyer's stockholders under applicable law; or (l) written consent enter into an agreement any settlement which imposes upon Xxxxxxxx any restrictions or limitations on its ability to take operate its business consistent with past practice; (ii) repay any guarantors of Lawrence's obligations or pledgors of collateral to secure Lawrence's obligations (including collateral pledged to secure letters of credit relating to such obligations) if and to the extent such guarantors pay any amount under the guaranty, or such pledgors have such collateral foreclosed upon, in connection with any of the foregoing actions. A-18 109Lawrence's obligations, on behalf of Xxxxxxxx, and (iii) pay compensation as permitted under Section 6.2 below.

Conduct of Business Pending the Merger. 6.1 Conduct LSC agrees on its own behalf and on behalf of Business its subsidiaries that, except as may be agreed to by the Company. During Parties hereto or may be permitted by this Agreement, during the period from the date of this Agreement to and continuing until the Effective Time, except as otherwise contemplated by this Agreement, : (a) the Company shall, and shall cause each of the Company Subsidiaries to, carry on their respective businesses of LSC and its subsidiaries shall be conducted only in the usual, regular ordinary and ordinary course, usual course of business and consistent with past practice, practices; (b) LSC and use their best efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo its subsidiaries shall otherwise consent in writing): not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of its subsidiaries; (ii) amend its Articles of Incorporation or Bylaws; or (iii) split, combine, or reclassify any shares of its outstanding capital stock or declare, set aside aside, or pay any dividend or other distribution (whether payable in cash, stock, or property or any combination thereof) in respect of any of its capital stock, (ii) splitor directly or indirectly redeem, combine purchase, or reclassify otherwise acquire any shares of its capital stock or (iii) repurchase, redeem other securities or otherwise acquire shares of the capital stock or other securities of any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactionssubsidiaries; (bc) LSC and its subsidiaries shall not (i) authorize for issuance, issue, sell, deliver pledge, dispose of, encumber, deliver, or agree or commit to issue, sell sell, pledge, or deliver any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class or exchangeable into shares of stock of any class or any Voting Debt (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (includingpurchase, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose of any assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth that LSC may issue Shares required to be issued upon exercise of existing stock options, warrants, or similar plans, or under other contractual commitments previously made, which options, warrants, plans, or commitments have been disclosed in Section 6.1(cwriting to HBOA in the LSC Schedule; (ii) of the Company Disclosure Schedule; (d) make acquire, dispose of, transfer, lease, license, mortgage, pledge, or encumber any loans, advances fixed or capital contributions other substantial assets other than in the ordinary course of business and consistent with prior practice; past practices; (eiii) payincur, discharge assume, or satisfy prepay any claimsmaterial indebtedness, liability, or obligation or any other material liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), issue any debt securities other than any payment, discharge or satisfaction (i) in the ordinary course of business and consistent with past practicepractices; (iv) assume, guarantee, endorse, or otherwise become liable or responsible (iiwhether directly, contingently, or otherwise) in connection with for the Transactions; (f) change obligations any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries other person (other than terminations of agreements, arrangements, plans or policies a subsidiary) in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases a material amount other than in the ordinary course of business and consistent with past practices; (v) make any material loans, advances, or capital contributions to, or investments in, any other person, other than to subsidiaries, other than in the ordinary course of business and consistent with past practices; (vi) fail to maintain adequate insurance consistent with past practices for their businesses and properties; or (vii) enter into any contract, agreement, commitment, or arrangement with respect to any of the foregoing; (d) LSC shall use its reasonable efforts, consistent with prudent business practice, any employee to preserve intact the business organization of LSC and its subsidiaries, to keep available the Company or any Company Subsidiaryservices of its and their present officers and key employees, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as and to preserve the goodwill of the date hereofthose having business relationships with it and their respective subsidiaries and LSC shall use its reasonable efforts to reduce expenses where applicable; (he) adopt any amendments to the Articles of Organization LSC and its subsidiaries shall not knowingly take or Bylaws, other than (X) to authorize the shares of Series B Stock allow to be issued taken or fail to take any action which act or omission would jeopardize qualification of the Rollover Stockholders and to establish Merger as a "reorganization" within the rights, preferences and designations thereof (such rights, preferences and designations meaning of such Series B Stock shall be as set forth in Section 6.1(h368(a) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement;Code; and (if) except as set forth LSC and its subsidiaries shall use reasonable efforts to prevent any representation or warranty of LSC herein from becoming untrue or incorrect in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 109material respect.

Conduct of Business Pending the Merger. Section 6.1 Conduct of Business by the CompanyCONDUCT OF BUSINESS BY THE COMPANY PENDING THE MERGER. During the period from the date of this Agreement Prior to the Effective Time, except unless Parent shall otherwise agree in writing, or as otherwise expressly contemplated by this Agreement, : (a) the Company shallshall conduct, and shall cause each of the Company its Subsidiaries toto conduct, carry on their respective businesses its business only in the usual, regular ordinary and ordinary course, usual course consistent with past practice, and use their best the Company shall use, and cause each of its Subsidiaries to use, its reasonable efforts to preserve intact their the present business organizationsorganization, keep available the services of their its present advisors, managers, officers and employees key employees, and preserve their the goodwill of those having business relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof it; (for the term provided in such contracts). Without limiting the generality of the foregoing, neither b) the Company shall not, nor shall it permit any of the Company its Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing): to, (i) amend its charter, by laws or other organizational documents, (ii) split, combine or reclassify any shares of its outstanding capital stock, (iii) declare, set aside or pay any dividend or other distribution (whether payable in cash, stockstock or property, property or (iv) directly or indirectly redeem or otherwise acquire any combination thereof) in respect of any of its capital stock, (ii) split, combine or reclassify any shares of its capital stock or (iii) repurchase, redeem or otherwise acquire shares of the capital stock of any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the TransactionsSubsidiaries; (bc) except as provided in Schedule 6.1(c), the Company shall not, nor shall it permit any of its Subsidiaries to, (i) authorize for issuance, issue, sell, deliver issue or sell or agree to issue or commit sell any shares of, or Rights to issueacquire or which are convertible into any shares of, sell its capital stock or deliver shares of the capital stock of any of its Subsidiaries (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) except for the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock options in connection with the Transactions; hiring of sales representatives consistent with past practices; (cii) acquiremerge or consolidate with another entity; (iii) acquire or purchase an equity interest in or a substantial portion of the assets of another corpora tion, sell, lease, encumber, transfer partnership or dispose of other business organization or otherwise acquire any assets outside the ordinary and usual course of business and consistent with past practice or otherwise enter into any material contract, commitment or transaction outside the ordinary and usual course of business consistent with past practice; (iv) sell, lease, license, waive, release, transfer, encumber or otherwise dispose of any of its assets outside the ordinary and usual course of business and consistent with past practice; (v) incur, assume or prepay any material indebtedness or any other material liabilities other than in the ordinary course of business and consistent with past practice; (vi) assume, guarantee, endorse or otherwise become liable or responsible (whether by asset acquisitiondirectly, stock acquisition contingently or otherwise), except as set forth in Section 6.1(c) for the obligations of any other person other than a Subsidiary of the Company Disclosure Schedule; Company, in each case in the ordinary course of business and consistent with past practice; (dvii) make any loans, advances or capital contributions to, or investments in, any other person, other than to Subsidiaries of the Company; (viii) authorize or make capital expenditures in excess of the amounts currently budgeted therefor; (ix) permit any insurance policy naming the Company or any Subsidiary of the Company as a beneficiary or a loss payee to be cancelled or terminated other than in the ordinary course of business consistent business; or (x) enter into any contract, agreement, commitment or arrangement with prior practicerespect to any of the foregoing; (ed) paythe Company shall not, discharge or satisfy any claimsnor shall it permit its Subsidiaries to, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (i) adopt, enter into, terminate or amend (except as may be required by Applicable Law) any Company Plan or other arrangement for the current or future benefit or welfare of any director, officer or current or former employee, (ii) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases in salaried compensation in the ordinary course of business consistent with past practice, or (iiiii) take any action to fund or in connection any other way secure, or to accelerate or otherwise remove restrictions with respect to, the Transactionspayment of compensation or benefits under any employee plan, agreement, contract, arrangement or other Company Plan (including the Company Stock Options); (e) the Company shall not, nor shall it permit its Subsidiaries to, take any action with respect to, or make any material change in, its accounting or tax policies or procedures, except as required by law or to comply with GAAP; (f) change any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice Company shall be provided to MergerCo prior to any such change); (g) except as required by law, not (i) enter into, adopt, amend take or terminate allow to be taken any action which would jeopardize the treatment of Parent's acquisition of the Company Benefit Plan, as a pooling of interests for accounting purposes; or (ii) enter into, adopt, amend or terminate take any agreement, arrangement, plan or policy between the Company or any action which would jeopardize qualification of the Company Subsidiaries (other than terminations Merger as a reorganization within the meaning of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g368(a) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 109Code.

Conduct of Business Pending the Merger. 6.1 Conduct of Business Beech agrees that except as expressly contemplated by the Company. During this Agreement, during the period from the date of this Agreement to and continuing until the Effective Time, except as otherwise contemplated by this Agreement, the Company shall, : (a) The business of Beech and shall cause each of the Company Subsidiaries to, carry on their respective businesses its subsidiaries shall be conducted only in the usual, regular ordinary and ordinary course, usual course of business and consistent with past practicepractices, including, without limitation, policies and practices relating to the collection of accounts receivable, the filing of Tax Returns and payment of applicable Taxes, and use their best efforts to preserve intact their present business organizationsthe payment of trade accounts payable, keep available the services of their present advisorsbonuses, managers, officers commissions and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof other liabilities; (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company b) Neither Beech nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo its subsidiaries shall otherwise consent in writing): (i) amend its Articles of Incorporation or Bylaws; or (ii) split, combine or reclassify any shares of its outstanding capital stock, declare, set aside or pay any dividend or other distribution (whether payable in cash, stock, stock or property or any combination thereof) in respect of any of its capital stock, (ii) splitor directly or indirectly redeem, combine purchase or reclassify otherwise acquire any shares of its capital stock or other securities; (iiic) repurchase, redeem or otherwise acquire Neither Beech nor any of its securities, except, in the case of clause subsidiaries shall (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (bi) authorize for issuance, issue, sell, pledge, dispose of, encumber, deliver or agree or commit to issue, sell sell, pledge, or deliver any additional shares of, or rights of any kind to acquire, convert into or exchange for any shares of, its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities ); (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (cii) acquire, selldispose of, transfer, lease, encumberlicense, transfer mortgage, pledge or dispose of encumber any fixed or other substantial assets outside other than in the ordinary course of business and consistent with past practices; (iii) incur, assume or prepay any indebtedness, liability or obligation or any other liabilities or issue any debt securities other than in the ordinary course of business and consistent with past practices; (iv) assume, guarantee, endorse or otherwise become liable or responsible (whether by asset acquisitiondirectly, stock acquisition contingently or otherwise), except as set forth ) for the obligations of any other person in Section 6.1(c) a material amount other than in the ordinary course of the Company Disclosure Schedule; business and consistent with past practices; (dv) make any loans, advances or capital contributions to, or investments in, any other person, other than in the ordinary course of business and consistent with prior practicepast practices; (vi) fail to maintain adequate insurance consistent with past practices for its businesses and properties; (vii) merge or consolidate with any other person, dissolve or liquidate, (viii) amend, modify or terminate (or fail to use reasonable efforts to renew or perform any obligations under) any existing material contract, agreement or obligation, (ix) make any settlement of or compromise any Tax liability, change in any respect any Tax election or Tax method of accounting or make any new Tax election or adopt any new Tax method of accounting or amend any Tax Return or enter into any agreement, extension, waiver or transaction of the type described in Section 5.15(b), (e), (g), (h), or (i), including to waive or extend the statute of limitations in respect of Taxes or apply for any refund, or (x) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) Beech and each of its subsidiaries shall use its best efforts to maintain its assets, preserve intact its business organization, retain its present officers and employees, timely perform all contractual obligations to which it is subject, keep in full force and effect its insurance policies, and preserve the goodwill of and maintain its relationships with its employees, suppliers, patients, payors and others having business relationships with it or its subsidiaries; and (e) payNotwithstanding anything to the contrary herein, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction Beech shall be permitted to take the following actions: (i) in the ordinary course of business consistent with past practice, or pay cash dividends; (ii) in connection terminate the consulting arrangement with the Transactions; (f) change any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or Mulberry Street; (iii) increase in any manner terminate the compensation or fringe benefits lease of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Scheduleoffice space at 000 Xxxxxxxx Xxxxxx, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) Xxxxx Xxxxxxx; and (Yiv) as otherwise expressly provided by terminate or transfer the terms of this Agreement; Aircraft Lease Agreement N620S between Key Corporate Capital, Inc. and Beech Street Corporation, dated December 4, 2003 (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement“Airplane Lease”); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 109.

Conduct of Business Pending the Merger. 6.1 Conduct of Business by the Company. During the period from the date of this Agreement to the Effective Time, except as otherwise contemplated by this AgreementAgreement or to the extent MergerCo shall otherwise consent in writing, the Company shall, and shall cause each of the Company Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course, consistent with past practice, and use their best reasonable efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts)hereof. Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing): (i) declare, set aside or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) in respect of any of its capital stockstock (other than dividends or distributions by any Subsidiary to the Company), (ii) split, combine or reclassify any of its capital stock or (iii) repurchase, redeem or otherwise acquire any of its securities, except, in the case of this clause (iii), for (X) the acquisition of shares of Company Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and Agreement, or (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (biv) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than than: (XA) the issuance of shares of Company Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and or (YB) the issuance by a wholly owned Company Subsidiary of the Series B Stock its capital stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactionsits parent; (ci) acquireExcept as set forth in Section 6.1(b) of the Company Disclosure Schedule, acquire any assets outside of the ordinary course of business, or (ii) sell, lease, encumber, transfer or dispose of any assets outside the ordinary course of business which are material to the Company except as set forth in Section 6.1(b) of the Company Disclosure Schedule. (whether by asset acquisition, stock acquisition or otherwise), i) except as set forth in Section 6.1(c) of the Company Disclosure Schedule; (d) make any loans, advances or capital contributions other than in the ordinary course of business consistent with prior practice; (e) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (i) in the ordinary course of business consistent with past practice, or (ii) pursuant to credit facilities in connection with existence on the Transactions; (f) change any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies date hereof in accordance with the current terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(hfacilities, (A) of the Company Disclosure Schedule) and create, incur or assume any long-term debt (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Scheduleincluding, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 109without limitation,

Conduct of Business Pending the Merger. 6.1 5.1 Conduct of Business by CPI and CII Pending the CompanyMerger. During the period from the date Each of this Agreement CPI and CII covenants and agrees that, prior to the Effective Time, except unless TBA shall otherwise approve in writing (which approval will not be unreasonably withheld) or as otherwise expressly contemplated or permitted by this Agreement: (a) Each of CPI and CII shall conduct its business and operations, including its cash management practices, the Company shallcollection of receivables, maintenance of facilities and shall cause each payment of the Company Subsidiaries topayables, carry on their respective businesses only in the usual, regular usual and ordinary course, course of business and consistent with past practice, custom and use their best efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as practice in effect on the date hereof all material respects; (b) Except for the term provided in such contracts). Without limiting the generality acquisition by CPI of two hundred (200) shares of the foregoingcapital stock of CII on July 1, 1998, neither the Company CPI nor CII shall directly or indirectly do any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing): following: (i) sell, pledge, dispose of or encumber any material portion of its assets, except in the ordinary course of business; (ii) amend or propose to amend its charter or bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution (whether payable in cash, stock, property or any combination thereof) in otherwise with respect of any to shares of its capital stock; (iv) redeem, (ii) split, combine purchase or reclassify acquire or offer to acquire any shares of its capital stock or other securities; (iiiv) repurchasecreate any subsidiaries; or (vi) enter into or modify any contract, redeem agreement, commitment or otherwise acquire arrangement with respect to any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company matters set forth in this Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights5.1(b), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (c) acquireNeither CPI nor CII shall (i) issue, sell, lease, encumber, transfer pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital; (ii) acquire (by merger, consolidation, acquisition of stock or assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise)) any corporation, except as set forth in Section 6.1(cpartnership or other business organization or division or material assets thereof; (iii) incur any material indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the Company Disclosure Scheduleforegoing; (d) make Neither CPI nor CII shall (i) enter into or modify any loansemployment, advances severance or capital contributions similar agreements or arrangements with, or grant any bonus, salary increase, severance or termination pay to, any officers or directors; or (ii) in the case of employees who are not officers or directors, take any action other than in the ordinary course of business and consistent in all material respects with prior practicepast practice (none of which shall be unreasonable or unusual) with respect to the grant of any bonuses, salary increases, severance or termination pay or with respect to any increase of benefits payable in effect on January 1, 1998; (e) payNeither CPI nor CII shall adopt or amend any bonus, discharge profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or satisfy other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (i) in the ordinary course of business consistent with past practice, or (ii) in connection with the Transactionsemployee; (f) change any except as otherwise required by its charter or bylaws, by this Agreement or by applicable law, and except in connection with the acquisition on July 1, 1998 by CPI of two hundred (200) shares of the accounting principles capital stock of CII, neither CPI nor CII shall call any meeting of its shareholders and, with respect to any meeting of its shareholders called by CPI or practices used by it (except CII, as required by generally accepted accounting principlesapplicable, in which case shall provide to TBA copies of all written notice shall be provided materials and other information given to MergerCo the shareholders prior to any the time such change)materials and information are given to the shareholders; (g) except as required by law, Each of CPI and CII shall use commercially reasonable efforts to cause its current insurance (ior reinsurance) enter into, adopt, amend policies not to be cancelled or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company terminated or any of the Company Subsidiaries (other coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and reinsurance companies of nationally recognized standing providing coverage equal to or greater than terminations of agreementsthe coverage under the cancelled, arrangements, plans terminated or lapsed policies for substantially similar premiums are in accordance with the terms thereof existing on the date of this Agreement) full force and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereofeffect; (h) adopt Each of CPI and CII shall (i) use commercially reasonable efforts to preserve intact its business organization and goodwill, keep in full force and effect all material rights, licenses, permits and franchises relating to its business, keep available the services of its officers and employees as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it; (ii) report on a regular and frequent basis, at reasonable times, to representatives of TBA regarding operational matters and the general status of ongoing operations; (iii) use commercially reasonable efforts not to take any amendments action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Articles Effective Time if then made; and (iv) notify TBA of Organization any emergency or Bylawsother change in the normal course of their respective business or in the operation of their properties and of any tax audits, other than tax claims, governmental or third party complaints, investigations or hearings (Xor communications indicating that the same may be contemplated) to authorize if such emergency, change, audit, claim, complaint, investigation or hearing would be material, individually or in the shares of Series B Stock to be issued aggregate, to the Rollover Stockholders and financial condition, results of operations or business of CPI or CII, or to establish the rightsability of CPI, preferences and designations thereof (such rightsCII, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of Merger Sub or TBA to consummate the Company Disclosure Schedule) and (Y) as otherwise expressly provided transactions contemplated by the terms of this Agreement; (i) except as set forth Each of CPI and CII shall deliver to TBA promptly (but in Section 5.1 any event within two business days) after the discovery or receipt of notice of any default under any material agreement to which it is a party or any other material adverse event or circumstance affecting CPI or CII (including the filing of any material litigation against CPI or CII or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced), a certificate of the Company Disclosure SchedulePresident of each of CPI or CII, adopt a plan as applicable, specifying the nature and period of complete the existence thereof and what actions CPI or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganizationCII has taken and proposes to take with respect thereto; (j) settle Each of CPI and CII shall use commercially reasonable efforts to maintain its assets in customary repair, order and condition, replace in accordance with past practice its inoperable, worn out or compromise any litigation (whether or not commenced prior obsolete assets with assets of quality at least comparable to the date original quality of this Agreement)the assets being replaced and maintain in all material respects its books, accounts and records in accordance with past custom and practice as used in the preparation of the Financial Statements; (k) waiveEach of CPI and CII shall use commercially reasonable efforts to maintain in full force and effect the existence of all material patents, release inventions, trademarks, service marks, trade dress, trade names, corporate names, copyrights, mask works, trade secrets, licenses, computer software, data and documentation and other proprietary rights, which it uses or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; orowns; (l) Each of CPI and CII shall have positive working capital at the Effective Time; (m) Each of CPI and CII shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and (n) Neither CPI nor CII shall enter into an agreement any contract (except for artist performances) requiring payments in excess of $5,000 or for a duration of more than one (1) year. For purposes of this Section 5.1, should TBA fail to take approve in writing any action for which its approval is required pursuant to this Section 5.1 within three (3) business days after its receipt of a written request for approval in accordance with the notice requirements contained herein, the matter shall be deemed approved by TBA. Notwithstanding the foregoing, in the event "time is of the foregoing actionsessence" with respect to a pending contract, the verbal approval by Greg Xxxxxx xx Avalon Entertainment Group, Inc., a wholly-owned subsidiary of TBA, will be sufficient to satisfy this requirement provided a facsimile of the contract to be approved has been previously sent to Thomxx Xxxxxxxxxxx xx TBA. A-18 109Notwithstanding any other provision of this Agreement, the amendment or modification of the Disclosure Schedule by CPI or CII after the time TBA has signed this Agreement shall have no effect with respect to the agreements, covenants and obligations of CPI, CII, TBA and Merger Sub pursuant to this Section 5.1 and Sections 7.2 and 7.3 of this Agreement.

Conduct of Business Pending the Merger. Section 6.1 Conduct of Business by Xxxxxx Pending the CompanyMerger. During the period from the date Except as set forth in Section 6.1 of this Agreement to the Effective Time, except Xxxxxx'x Disclosure Schedule or as otherwise contemplated by this Agreement, after the Company shalldate hereof and prior to the Effective Time or earlier termination of this Agreement, unless Recoton shall otherwise agree in writing (it being agreed, however, that Xxxxxx shall be solely responsible for its operations and those of its subsidiaries in accordance with the provisions of this Agreement), Xxxxxx shall and shall cause each of the Company Subsidiaries its subsidiaries, to, carry on : (a) conduct their respective businesses in the usual, regular ordinary and ordinary course, usual course of business and consistent with past practice, and use their best efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof ; (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing): b) not (i) amend or propose to amend their respective charters or by-laws; (ii) split, combine or reclassify their outstanding capital stock or declare, set aside or pay any dividend or other distribution (whether payable in cash, stock, property or any combination thereof) in respect of any of its capital stock, (ii) split, combine or reclassify any of its capital stock otherwise; or (iii) repurchase, redeem or otherwise acquire knowingly take any action which would result in a failure to maintain the trading of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Xxxxxx Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the TransactionsNasdaq; (bc) authorize not (i) except for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options currently outstanding on the date of this Agreement in accordance with their present terms and (Y) Xxxxxx Stock Options, authorize the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (c) acquireof, or issue, sell, lease, encumber, transfer pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for such capital stock, (ii) except for the sale of the assets outside associated with the ordinary course Original Equipment Business as described in Section 8.3(f) and the sale of business the AR Rights pursuant to the AR Agreement, sell (whether including, without limitation, by asset acquisition, stock acquisition or otherwisesale/leaseback), except as set forth in Section 6.1(c) of the Company Disclosure Schedule; pledge, dispose of, license or encumber any material assets (d) make including without limitation intellectual property), or any loansinterests therein, advances or capital contributions other than in the ordinary course of business and consistent with prior past practice; (iii) redeem, purchase, acquire or offer to purchase or acquire any (x) shares of its capital stock, other than in accordance with the governing terms of such securities or (y) long-term debt, other than as required by the governing instruments relating thereto; (iv) take or fail to take any action which action or failure to take action would cause Acquisition Sub, Xxxxxx or their respective stockholders (except to the extent that any stockholders perfect dissenters' rights under Delaware law, or receive cash in lieu of fractional shares or receive the Per Share Cash Amounts) to recognize gain or loss for federal income tax purposes as a result of the consummation of the Merger or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; provided, however, that Xxxxxx or any of its subsidiaries, after consulting with Recoton, may take any of the actions otherwise prohibited by this Section 6.1(c) if counsel to Xxxxxx advises the Board of Directors of Xxxxxx or any of its subsidiaries that the failure to take such action or actions might reasonably subject Xxxxxx'x or any of its subsidiaries' directors to liability for breach of their fiduciary duties; (d) use their best efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers and key employees, and preserve the goodwill and business relationships with suppliers, distributors, customers, and others having business relationships with them; (e) pay, discharge confer on a regular and frequent basis with one or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (i) in more representatives of Recoton to discuss operational matters of materiality and the ordinary course general status of business consistent with past practice, or (ii) in connection with the Transactionsongoing operations; (f) change promptly notify Recoton of any significant changes in the business, properties, assets, financial condition, or results of operations or prospects of Xxxxxx or its subsidiaries taken as a whole (excluding the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such changeOriginal Equipment Business); (g) except as required by lawnot acquire, (i) enter intoor publicly propose to acquire, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company all or any substantial part of the Company Subsidiaries business and properties or capital stock of any person not a party to this Agreement, whether by merger, purchase of assets, tender offer or otherwise; (h) not, directly or indirectly, through any officer, director, employee, representative, agent, or otherwise, solicit, initiate or encourage the submission of any proposal or offer from any person (including, without limitation, a "person" as defined in Section 13(d)(3) of the Exchange Act) or entity relating to any acquisition or purchase of all or (other than terminations of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, business) any employee portion of the Company assets of, or any Company Subsidiaryequity interest in, or pay any benefit not required by merger or other business combination with, Xxxxxx or any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylawsits subsidiaries, other than (X) to authorize the shares of Series B Stock to be issued with respect to the Rollover Stockholders and to establish Original Equipment Business or the rightstransactions contemplated hereby (collectively, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement"Xxxxxx Acquisition Transaction"); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release Xxxxxx or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to subsidiaries may take any of the actions otherwise prohibited by this Section 6.1(h) if counsel to Xxxxxx advises the Board of Directors of Xxxxxx or any of its subsidiaries that the failure to take such action or actions might reasonably subject Xxxxxx'x or any of its subsidiary's directors to liability for breach of their fiduciary duties; and provided, further however, that notwithstanding the foregoing actions. A-18 109sentence, (a) following receipt of a bona fide unsolicited written offer to consummate a Xxxxxx Acquisition Transaction, Xxxxxx may take and disclose to Xxxxxx'x stockholders the position of the Board of Directors of Xxxxxx contemplated by Rule 14e-2 under the Exchange Act or otherwise make appropriate disclosures to its stockholders, (b) Xxxxxx may furnish or cause to be furnished information concerning its business, properties or assets to a third party, and (c) Xxxxxx may engage in discussions or negotiations with a third party concerning a Xxxxxx Acquisition Transaction provided that Xxxxxx shall notify Recoton promptly (orally and in writing) of any such offer;

Conduct of Business Pending the Merger. 6.1 Conduct of Business by the Company. During the period from the date of this Agreement to the Effective Time, except as otherwise contemplated by this Agreement, the Company shall, and shall cause each of the Company Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course, consistent with past practice, and use their best efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing): (i) declare, set aside or pay any dividend or other distribution (whether in cash, stock, property or any combination thereof) in respect of any of its capital stock, (ii) split, combine or reclassify any of its capital stock or (iii) repurchase, redeem or otherwise acquire any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose of any assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth in Section 6.1(c) of the Company Disclosure Schedule; (d) make any loans, advances or capital contributions other than in the ordinary course of business consistent with prior practice; (e) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (i) in the ordinary course of business consistent with past practice, or (ii) in connection with the Transactions; (f) change any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 109105

Conduct of Business Pending the Merger. 6.1 Conduct of Business by the Company4.1. During the period from CONDUCT OF BUSINESS BY NSC. NSC covenants and agrees that between the date hereof and the earlier of a termination of this Agreement to in accordance with its terms or the Effective Time, except as otherwise contemplated by this Agreement, the Company shall, and NSC shall cause each of the Company Subsidiaries to, carry on their respective businesses not conduct its business other than in the usual, regular ordinary course and ordinary course, consistent with past practice, and use their best efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts). Without limiting the generality of the foregoing, neither NSC shall . (i) continue its research and development, investigation and activities relating to the Company nor NSC IP Rights in accordance with past practice; (ii) use its commercially reasonable efforts to (A) preserve intact its business organization, (B) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of NSC and its business and (C) preserve its current relationships with its clinical investigators, suppliers and other persons with which it has significant business relationships. In addition, without the prior written consent of Azurel; NSC shall not do any of the Company Subsidiaries will following: (a) amend or otherwise change its Certificate of Incorporation or Bylaws, or otherwise alter its corporate structure through merger, liquidation, reorganization or otherwise; (b) sell, pledge, dispose of or encumber any assets (except as expressly permitted by this Agreement for (i) sales of assets in the ordinary course of business and (ii) dispositions of obsolete or as worthless assets); (c) sell, issue, redeem, repurchase or otherwise acquire, directly or indirectly, any shares of capital stock of NSC (except for transactions in furtherance of the merger or the other transactions contemplated by the Transactions hereby), including options or to the extent that Parent warrant or MergerCo shall otherwise consent in writing):any instruments exercisable, convertible or exchangeable for shares of capital stock of NSC; (d) (i) declare, set aside aside, make or pay any dividend or other distribution (whether in cash, stock, stock or property or pr any combination thereof) in respect of any of its capital stock, except that a wholly owned subsidiary may declare and pay a dividend to its parent, (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) amend the terms of, repurchase, redeem or otherwise acquire acquire, or permit any subsidiary to repurchase, redeem or otherwise acquire, any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment propose to do any of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose of any assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth in Section 6.1(c) of the Company Disclosure Schedule; (d) make any loans, advances or capital contributions other than in the ordinary course of business consistent with prior practiceforegoing; (e) pay, discharge sell or satisfy transfer any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (i) in the ordinary course of business consistent with past practice, or (ii) in connection with the TransactionsNSC IP Rights; (f) change take; or agree in writing or otherwise to take, any of the accounting principles or practices used by it (except as required by generally accepted accounting principlesactions described, in Sections 5.1(a) through (e) above, or any action which case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or would make any of the Company Subsidiaries (other than terminations representations or warranties of agreements, arrangements, plans NSC contained in this Agreement untrue or policies incorrect or prevent NSC from performing or cause NSC not to perform its covenants hereunder or result in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actionsconditions to the Merger set forth herein not being satisfied. A-18 109If NSC wishes to obtain the consent of Azurel to. take actions for which prior consent is required pursuant to this Section 4.1, NSC shall request such consent in writing by telecopy to the attention of the Chief Executive Officer of Azurel. A consent signed by either such officer shall be deemed sufficient for purposes hereof. 19

Conduct of Business Pending the Merger. 6.1 Conduct of Business by Pending the CompanyMerger. During UCT agrees on its own behalf and on behalf of its subsidiaries that, during the period from the date of this Agreement to and continuing until the Effective Time: (a) The business of UCT and its subsidiaries shall be conducted only in the ordinary and usual course of business and consistent with past practices; (b) UCT and its subsidiaries shall not, except as otherwise contemplated by this Agreement, the Company shall, and shall cause each of the Company Subsidiaries to, carry set forth on their respective businesses in the usual, regular and ordinary course, consistent with past practice, and use their best efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing): Schedule 6.1(c) (i) sell or pledge or agree to sell or pledge any stock owned by it in any of its subsidiaries; (ii) amend its Articles of Incorporation or Bylaws; or (iii) split, combine, or reclassify any shares of its outstanding capital stock or declare, set aside aside, or pay any dividend or other distribution (whether payable in cash, stock, or property or any combination thereof) in respect of any of its capital stock, (ii) splitor directly or indirectly redeem, combine purchase, or reclassify otherwise acquire any shares of its capital stock or (iii) repurchase, redeem other securities or otherwise acquire shares of the capital stock or other securities of any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactionssubsidiaries; (bc) UCT and its subsidiaries shall not (i) authorize for issuance, issue, sell, deliver pledge, dispose of, encumber, deliver, or agree or commit to issue, sell sell, pledge, or deliver any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class or exchangeable into shares of stock of any class or any Voting Debt (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (includingpurchase, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose of any assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth in Section 6.1(c(ii) of the Company Disclosure Schedule; (d) make acquire, dispose of, transfer, lease, license, mortgage, pledge, or encumber any loans, advances fixed or capital contributions other substantial assets other than in the ordinary course of business and consistent with prior practice; past practices; (eiii) payincur, discharge assume, or satisfy prepay any claimsmaterial indebtedness, liability, or obligation or any other material liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), issue any debt securities other than any payment, discharge or satisfaction (i) in the ordinary course of business and consistent with past practicepractices; (iv) assume, guarantee, endorse, or otherwise become liable or responsible (iiwhether directly, contingently, or otherwise) in connection with for the Transactions; (f) change obligations any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries other person (other than terminations of agreements, arrangements, plans or policies a subsidiary) in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases a material amount other than in the ordinary course of business and consistent with past practicepractices; (v) make any material loans, advances, or capital contributions to, or investments in, any employee other person, other than to subsidiaries, other than in the ordinary course of business and consistent with past practices; (vi) fail to maintain adequate insurance consistent with past practices for their businesses and properties; or (vii) enter into any contract, agreement, commitment, or arrangement with respect to any of the foregoing. (d) UCT shall use its best efforts to preserve intact the business organization of Company or any Company Subsidiaryand its subsidiaries, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as to keep available the services of its and their present officers and key employees, and to preserve the date hereofgoodwill of those having business relationships with it and their respective subsidiaries; (he) adopt UCT and its subsidiaries shall use all reasonable efforts to prevent any amendments to the Articles of Organization representation or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations warranty of such Series B Stock shall be as set forth Company herein from becoming untrue or incorrect in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 109material respect.

Conduct of Business Pending the Merger. 6.1 Conduct Except as expressly contemplated by this Agreement, and subject to the fiduciary obligations of Business by the Company. During its directors and officers, during the period from the date of this Agreement to through the Effective Time, except as otherwise contemplated by this Agreement, each of Parent and the Company shall, and shall cause each of the Company its Subsidiaries to, in all material respects, carry on their respective businesses its business in the usualordinary course as currently conducted and, regular and ordinary courseto the extent consistent therewith, consistent with past practice, and use their best commercially reasonable efforts to preserve intact their present its current business organizations, keep available the services of their present advisors, managers, its current officers and key employees and preserve their its relationships with customers, suppliers, licensors suppliers and others having business dealings with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts)it. Without limiting the generality of the foregoing, neither and except as otherwise expressly contemplated by this Agreement, each of Parent and the Company nor shall not, and shall not permit any of its Subsidiaries to, without the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by prior written consent of the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing):other party: (i) declare, set aside or pay any dividend dividends on, or make any other distribution (whether in cashactual, stock, property constructive or any combination thereof) deemed distributions in respect of of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such, (ii) other than in the case of a reverse split of the Parent Common Stock, 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) repurchasepurchase, redeem or otherwise acquire any shares of its securitiescapital stock any other securities thereof or any rights, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full warrants or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of options to acquire any such shares for shares of Series B Stock in connection with the Transactionsor other securities; (b) authorize for issuance, issue, deliver, sell, deliver pledge, dispose of or agree otherwise encumber any shares of its capital stock, any other voting securities or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class equity equivalent or any other securities (including indebtedness having the right convertible into, or any rights, warrants or options to vote) acquire any such shares, voting securities, equity equivalent or equity equivalents (including, without limitation, stock appreciation rights)convertible securities, other than (X) the issuance of shares of Common Stock capital stock upon the exercise of Options stock options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the TransactionsAgreement; (c) acquireacquire or agree to acquire by merging or consolidating with, sellor by purchasing a substantial portion of the assets of or equity in, leaseor by any other manner, encumberany business or any corporation, transfer limited liability company, partnership, association or dispose of other business organization or division thereof or otherwise acquire or agree to acquire any assets outside for an amount exceeding $50,000 in the ordinary course aggregate, in the case the Company, or $25,000 in the aggregate, in the case of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth in Section 6.1(c) of the Company Disclosure ScheduleParent; (d) except, in the case of the Company, for any advances under its secured line of credit, incur any indebtedness for borrowed money, guarantee any such indebtedness, incur, assume, guarantee, endorse, or prepay any material indebtedness (whether directly, indirectly, contingently or otherwise), or make any loans, advances or capital contributions to, or other than in the ordinary course of business consistent with prior practice; (e) payinvestments in, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)other person, other than (A) in amounts not to exceed $50,000 in the aggregate, in the case of the Company, or $25,000 in the aggregate, in the case of Parent; and (B) indebtedness, loans, advances, capital contributions and investments between it and any paymentof its wholly-owned Subsidiaries or between any of such wholly-owned Subsidiaries, discharge or satisfaction (i) in each case in the ordinary course of business consistent with past practicepractices and not in any event to exceed $50,000 in the aggregate, in the case of the Company, or (ii) $25,000 in connection with the Transactions; (f) change any of the accounting principles or practices used by it (except as required by generally accepted accounting principlesaggregate, in which the case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable lawParent; or (le) enter into authorize, recommend, propose or announce an agreement intention to take do any of the foregoing actions. A-18 109foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.

Conduct of Business Pending the Merger. 6.1 Conduct of Business by the Company. During the period from the date of this Agreement Prior to the Effective Time, except unless the Parent otherwise agrees in writing, or as otherwise contemplated by may be expressly permitted pursuant to this Agreement, agreement: (a) the Company shall, and shall cause each businesses of the Company Subsidiaries to, carry on their respective businesses and the UK Subsidiary will be conducted only in the usual, regular ordinary and ordinary course, usual course of business and consistent with past practicepractices, and use their best efforts to preserve intact their present business organizations, keep available there will be no material changes in the services conduct of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof operations; (for the term provided in such contracts). Without limiting the generality of the foregoing, neither b) the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing): not (i) amend its certificate of incorporation or bylaws; or (ii) split, combine, or reclassify any shares of its outstanding capital stock or declare, set aside aside, or pay any dividend or other distribution (whether payable in cash, stock, property or any combination thereof) in respect of any of its capital stockproperty, (ii) split, combine or reclassify any of its capital stock or (iii) repurchase, redeem or otherwise acquire any shares of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactionscapital stock; (bc) except as set forth on schedule 6.1(c), neither the Company nor the UK Subsidiary will (i) authorize for issuance, issue, sell, deliver or sell or agree to issue or commit sell any additional shares of, or rights of any kind to issueacquire any shares of, sell or deliver its capital stock of any class (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase purchase, or otherwise) any stock of any class or any other securities ); (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (cii) acquire, selldispose of, transfer, lease, encumberlicense, transfer mortgage, pledge, or dispose of encumber any assets outside the ordinary course of business (whether by asset acquisitionfixed or other assets, stock acquisition or otherwise), except as set forth in Section 6.1(c) of the Company Disclosure Schedule; (d) make any loans, advances or capital contributions other than in the ordinary course of business and consistent with prior practice; past practices; (eiii) payincur, discharge assume, or satisfy prepay any claims, liabilities indebtedness or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)any other material liabilities, other than any payment, discharge or satisfaction (i) in the ordinary course of business and consistent with past practicepractices; (iv) assume, guarantee, endorse, or otherwise become liable or responsible (iiwhether directly, contingently, or otherwise) for the obligations of any other person; (v) make any loans, advances, or capital contributions to, or investments in, any other person; (vi) authorize any capital expenditure; (vii) permit any insurance policy naming the Company or the UK Subsidiary as a beneficiary or a loss payee to be cancelled or terminated; (viii) make any Tax election or settle or compromise any Tax liability that could increase Taxes payable by the Company or the UK Subsidiary on or after the Closing Date; (ix) change its fiscal year; (x) change its methods of accounting (including, without limitation, make any material write-off or reduction in connection the carrying value of any assets); or (xi) enter into any contract, agreement, commitment, or arrangement with respect to any of the Transactionsforegoing; (fd) change any each of the accounting principles or practices used by it (except as required by generally accepted accounting principlesCompany and the UK Subsidiary will use its best efforts to preserve intact its business organization, in which case written notice shall be provided to MergerCo prior keep available the services of its present key employees, and to any such change)preserve the goodwill of those having business relationships with it; (ge) except as required by lawneither the Company nor the UK Subsidiary will enter into any new employment agreements with any of its officers or employees or grant any increases in the compensation of its officers or employees, (i) or enter into, adopt, or amend or terminate any Company Benefit Plan; and (f) the UK Subsidiary, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any in its capacity as a shareholder of the Company Subsidiaries (other than terminations of agreementsSpanish Subsidiary, arrangements, plans or policies will not take any action in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director respect of the Company or the compensation or fringe benefits of any officer of the Company or any Company Spanish Subsidiary set forth in Section 6.1(ginconsistent with clauses (a) of the Company Disclosure Schedulethrough (e) above, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 109mutatis mutandis.

Conduct of Business Pending the Merger. 6.1 Conduct LSC agrees on its own behalf and on behalf of Business its subsidiaries that, except as may be agreed to by the Company. During Parties hereto or may be permitted by this Agreement, during the period from the date of this Agreement to and continuing until the Effective Time, except as otherwise contemplated by this Agreement, : (a) the Company shall, and shall cause each of the Company Subsidiaries to, carry on their respective businesses of LSC and its subsidiaries shall be conducted only in the usual, regular ordinary and ordinary course, usual course of business and consistent with past practice, practices; (b) LSC and use their best efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo its subsidiaries shall otherwise consent in writing): not (i) sell or pledge or agree to sell or pledge any stock owned by it in any of its subsidiaries; (ii) amend its Articles of Incorporation or Bylaws; or (iii) split, combine, or reclassify any shares of its outstanding capital stock or declare, set aside aside, or pay any dividend or other distribution (whether payable in cash, stock, or property or any combination thereof) in respect of any of its capital stock, (ii) splitor directly or indirectly redeem, combine purchase, or reclassify otherwise acquire any shares of its capital stock or (iii) repurchase, redeem other securities or otherwise acquire shares of the capital stock or other securities of any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactionssubsidiaries; (bc) LSC and its subsidiaries shall not (i) authorize for issuance, issue, sell, deliver pledge, dispose of, encumber, deliver, or agree or commit to issue, sell sell, pledge, or deliver any additional shares of, or rights of any kind to acquire any shares of, its capital stock of any class or exchangeable into shares of stock of any class or any Voting Debt (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (includingpurchase, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose of any assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth that LSC may issue Shares required to be issued upon exercise of existing stock options, warrants, or similar plans, or under other contractual commitments previously made, which options, warrants, plans, or commitments have been disclosed in Section 6.1(cwriting to HBOA in the LSC Schedule; (ii) of the Company Disclosure Schedule; (d) make acquire, dispose of, transfer, lease, license, mortgage, pledge, or encumber any loans, advances fixed or capital contributions other substantial assets other than in the ordinary course of business and consistent with prior practice; past practices; (eiii) payincur, discharge assume, or satisfy prepay any claimsmaterial indebtedness, liability, or obligation or any other material liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), issue any debt securities other than any payment, discharge or satisfaction (i) in the ordinary course of business and consistent with past practicepractices; (iv) assume, guarantee, endorse, or otherwise become liable or responsible (iiwhether directly, contingently, or otherwise) in connection with for the Transactions; (f) change obligations any of the accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries other person (other than terminations of agreements, arrangements, plans or policies a subsidiary) in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases a material amount other than in the ordinary course of business and consistent with past practicepractices; (v) make any material loans, advances, or capital contributions to, or investments in, any employee other person, other than to subsidiaries, other than in the ordinary course of business and consistent with past practices; (vi) fail to maintain adequate insurance consistent with past practices for their businesses and properties; or (vii) enter into any contract, agreement, commitment, or arrangement with respect to any of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereofforegoing; (hd) adopt any amendments LSC shall use its reasonable efforts, consistent with prudent business practice, to preserve intact the Articles business organization of Organization LSC and its subsidiaries, to keep available the services of its and their present officers and key employees, and to preserve the goodwill of those having business relationships with it and their respective subsidiaries and LSC shall use its reasonable efforts to reduce expenses where applicable; (e) LSC and its subsidiaries shall not knowingly take or Bylaws, other than (X) to authorize the shares of Series B Stock allow to be issued taken or fail to take any action which act or omission would jeopardize qualification of the Rollover Stockholders and to establish Merger as a "reorganization" within the rights, preferences and designations thereof (such rights, preferences and designations meaning of such Series B Stock shall be as set forth in Section 6.1(h368(a) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement;Code; and (if) except as set forth LSC and its subsidiaries shall use reasonable efforts to prevent any representation or warranty of LSC herein from becoming untrue or incorrect in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 109material respect.

Conduct of Business Pending the Merger. 6.1 Section 5.1 Conduct of Business by CG Pending the CompanyMerger. During the period from the date of this Agreement Prior to the Effective Time, except unless Parent shall otherwise agree in writing, or as otherwise expressly contemplated by this Agreement, the Company shall, and : (a) CG shall cause each of the Company Subsidiaries to, carry on their respective businesses conduct its business only in the usual, regular ordinary and ordinary course, usual course consistent with past practice, and CG shall use their best its reasonable efforts to preserve intact their the present business organizationsorganization, keep available the services of their its present advisors, managers, officers and employees key employees, and preserve their the goodwill of those having business relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing):it; (b) CG shall not (i) amend its charter or bylaws, (ii) split, combine or reclassify any shares of its outstanding capital stock, (iii) declare, set aside or pay any dividend or other distribution (whether payable in cash, stock, property or any combination thereof) in respect of any of its capital stock, (ii) split, combine or reclassify any of its capital stock or property, or (iiiiv) repurchase, directly or indirectly redeem or otherwise acquire any shares of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactionscapital stock; (bc) CG shall not (i) authorize for issuance, issue, sell, deliver issue or sell or agree to issue or commit sell any shares of, or Rights to issueacquire or convertible into any shares of, sell or deliver its capital stock (whether through the issuance issuance, granting, or granting acceleration of vesting with regard to options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock except upon the exercise of Options outstanding employee stock options, to the extent vested pursuant to the original terms of such options as are set forth on the date of this Agreement Schedule 3.2(b) hereto; (ii) merge or consolidate with another entity; (iii) acquire or purchase an equity interest in accordance with their present terms and (Y) the issuance or a substantial portion of the Series B Stock to the Rollover Stockholders in exchange for shares assets of Common Stock in connection with the Transactions; (c) acquireanother corporation, sell, lease, encumber, transfer partnership or dispose of other business organization or otherwise acquire any assets outside the ordinary and usual course of business and consistent with past practice which has heretofore been specified to Parent in writing or otherwise enter into any contract, commitment or transaction outside the ordinary and usual course of business consistent with past practice; (iv) sell, lease, license, waive, release, transfer, encumber or otherwise dispose of any of its assets outside the ordinary and usual course of business and consistent with past practice; (v) incur, assume or prepay any indebtedness or any other liabilities other than in the ordinary course of business and consistent with past practice; (vi) assume, guarantee, endorse or otherwise become liable or responsible (whether by asset acquisitiondirectly, stock acquisition contingently or otherwise), except as set forth in Section 6.1(c) for the obligations of the Company Disclosure Schedule; any other person; (dvii) make any loans, advances or capital contributions to, or investments in, any other person (except for payroll advances and other advances to employees for approved expenses consistent with past practice); (viii) authorize or make capital expenditures in excess of the amounts currently budgeted therefor; (ix) permit any insurance policy naming CG as a beneficiary or a loss payee to be canceled or terminated other than in the ordinary course of business consistent business; or (x) enter into any contract, agreement, commitment or arrangement with prior practicerespect to any of the foregoing; (ed) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction CG shall not (i) adopt, enter into, terminate or amend (except as may be required by Applicable Law) any Plan or other arrangement for the current or future benefit or welfare of any director, officer or current or former employee, (ii) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee (except for normal increases in salaried compensation in the ordinary course of business consistent with past practice, or (iiiii) take any action to fund or in connection any other way secure, or to accelerate or otherwise remove restrictions with respect to, the Transactionspayment of compensation or benefits under any employee plan, agreement, contract, arrangement or other Plan; (e) CG shall not take any action with respect to, or make any change in, its accounting or tax policies or procedures, except as required by law or to comply with GAAP; and (f) change CG shall not knowingly take or allow to be taken any action which would reasonably be expected to jeopardize the treatment of the Parent's acquisition of CG as a pooling of interests for accounting principles or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such change);purposes. (g) except as required by lawCG shall be entitled to repay in full to the Stockholder all principal and accrued interest on the two $51,000 (original principal amount) outstanding Stockholder loans, (i) enter intoand CG shall also be entitled to terminate its line of credit with Union Bank of California, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between including the Company or any securing of a written release of the Company Subsidiaries (other than terminations Stockholder, his family and his trusts from their guarantee of agreementsCG's line of credit, arrangements, plans or policies in accordance with without violating the terms thereof existing on the date prohibitions of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 1095.1.

Conduct of Business Pending the Merger. 6.1 Conduct of Business by the Company. During the period Except as otherwise specifically provided in this Agreement, from the date of this Agreement to the earlier of the Effective Time, except as otherwise contemplated by this AgreementTime or termination hereof, the Company shall, and shall cause each of the Company Subsidiaries to, carry on their respective businesses agrees to (a) conduct its operations only in the usual, regular ordinary and ordinary course, usual course of business and consistent with past practice, practice and (b) use their its reasonable best efforts to preserve intact their its present business organizationsorganization, keep available the services of their its present advisorsofficers, managers, officers and key employees and consultants and preserve their its present relationships and goodwill with landlords, creditors, licensors, licensees, customers, suppliers, licensors key employees, labor organizations and others other having business dealings relationships with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts)it. Without limiting the generality of the foregoing, neither and except as otherwise specifically provided in this Agreement, the Company nor shall not, directly or indirectly, prior to the Effective Time, without the prior written consent of Parent: (a) except to authorize sufficient capital as required to effect the transactions contemplated in connection with the Merger, propose or adopt any amendment to otherwise change the Company Articles or Bylaws; (b) sell or otherwise issue (or grant any warrants, options or other rights to purchase, receive or acquire or have issued) any shares of Company Common Stock or any other securities, or otherwise allow any change in the capitalization of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent described in writing):Section 4.2 hereof; (ic) reclassify, combine, split or subdivide any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock, securities or property or any combination thereof) in respect of any class or series of its capital stock, (ii) split, combine or reclassify other any of its capital stock or (iii) repurchase, redeem or otherwise acquire any of its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on dividend declared prior to the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose of any assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth in Section 6.1(c) of the Company Disclosure Schedulehereof; (d) redeem, purchase or otherwise acquire, or propose or offer to redeem, purchase or otherwise acquire, any outstanding Company Common Stock, Company Warrants or Company Options or other securities of the Company except to the Company Benefit Plan; (e) organize any new subsidiary, acquire any capital stock or equity securities of any corporation or acquire any entity or ownership interest (financial or otherwise) in any business; (f) (i) incur, assume or otherwise become subject to any liability, or incur any Indebtedness for borrowed money other than in accordance with the Company's current financing arrangements, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any third party, (iii) make any loans, advances or capital contributions to, or investments in, any third party other than advances of employee travel expenses in the ordinary course of business, (iv) mortgage or pledge any of its properties or assets, tangible or intangible, or create or suffer to exist any Lien thereupon or (v) authorize any new capital expenditures for property, plant and equipment in excess of $25,000; (g) make any change in the compensation payable or to become payable to any of its officers, directors, employees, agents or consultants (other than normal recurring salary adjustments in the ordinary course of business consistent with past practice) or to Persons providing management services, or enter into or amend any existing employment, severance, consulting, termination or other agreement or employee benefit plan or make any loans to any of its officers, directors, employees, Affiliates, agents or consultants (other than reasonable travel advances) or make any change in its existing borrowing or lending arrangements for or on behalf of any such Person pursuant to an employee benefit plan or otherwise; (h) license (except in the ordinary course of business consistent with past practice) or otherwise transfer or dispose of, any Intellectual Property of the Company, or dispose of or disclose to any Person any trade secret, formula, process or know-how other than in the ordinary course of business consistent with prior past practice; (ei) enter into any contract or transaction other than in the ordinary course of business consistent with past practice; (j) cancel any debts or waive, release or relinquish any contract rights or other rights of substantial value other than in the ordinary course of business consistent with past practice; (k) except as explicitly contemplated by Section 7.2 hereof, authorize, recommend, propose or enter into or announce an intention to authorize, recommend, propose or enter into a term sheet, letter of intent, agreement in principle or a definitive agreement with respect to any merger, consolidation, liquidation, dissolution or business combination, any acquisition of a material amount of property or assets or securities, or any disposition of a material amount of property or assets or securities; (l) make any change with respect to accounting policies or procedures; (m) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), ) other than any the payment, discharge or satisfaction (i) in the ordinary course of business consistent with past practice, of liabilities reflected or (ii) reserved against in connection with the TransactionsCompany Financial Statements; (fn) change any of the accounting principles take or practices used by it commit to agree (except as required by generally accepted accounting principles, in which case written notice shall be provided to MergerCo prior to any such change); (gwriting or otherwise) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereof; (h) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, 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; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law; or (l) enter into an agreement to take any of the foregoing actions. A-18 109, or fail to take any action, as a result of which a failure of the conditions set forth in Section 9.1 or 9.2 is likely to occur; (o) commence any Proceeding; (p) revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable, except as required under US GAAP and in the ordinary course of business; or (q) make any election relating to Taxes, changing any election relating to Taxes already made, adopt or change any accounting method relating to Taxes, enter into any closing agreement relating to Taxes, settle any claim or assessment relating to Taxes or consent to any claim or assessment relating to Taxes or any waiver of the statute of limitations for any such claim or assessment.

Conduct of Business Pending the Merger. 6.1 Conduct of Business by the Company. During the period from the date of this Agreement to the Effective Time, except Except as otherwise contemplated by this Agreement, required by law or disclosed in Section 5.01 of the Company Disclosure Schedule, and except within the amounts and pursuant to the time schedules contemplated by the Company's annual budget or capital budget (copies of which have been delivered to Parent on or prior to the date of this Agreement), after the date hereof and prior to the Effective Time, without Parent's consent (which shall not be unreasonably withheld), the Company shall, and shall cause each of the Company Subsidiaries its subsidiaries to, carry on : (a) conduct their respective businesses in the usual, regular ordinary and ordinary course, usual course of business and consistent with past practice, and use their best efforts to preserve intact their present business organizations, keep available the services of their present advisors, managers, officers and employees and preserve their relationships with customers, suppliers, licensors and others having business dealings with them and continue existing contracts as in effect on the date hereof (for the term provided in such contracts). Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (except as expressly permitted by this Agreement or as contemplated by the Transactions or to the extent that Parent or MergerCo shall otherwise consent in writing):; (b) not (i) amend or propose to amend their respective certificates of incorporation or bylaws or equivalent constitutional documents, (ii) split, combine or reclassify their outstanding capital stock or (iii) declare, set aside or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise, except for the payment of dividends or distributions to the Company or a subsidiary of the Company by a subsidiary of the Company; (c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any combination thereofadditional shares of, or any options, warrants or rights of any kind to acquire any shares of their capital stock of any class or any debt or equity securities convertible into or exchangeable for such capital stock, except that (i) the Company may issue shares of capital stock of the Company (A) upon exercise of Company Stock Options outstanding on the date hereof or hereafter granted in accordance with the provisions of subclause (ii) or (iii) of this clause (c), (B) in accordance with the 401(k) Plan, the ESPP and the Company Rights Agreement as in effect on the date hereof, and (C) upon exercise of warrants outstanding on the date hereof, and (ii) the Company may grant Company Stock Options to purchase in the aggregate with respect to all such Company Stock Options 100,000 shares of Company Common Stock in accordance with the terms of the Company Option Plans to persons who are not currently directors or officers of the Company or its subsidiaries consistent with past practice and with an exercise price per share of Company Common Stock no less than the fair market value of a share of Company Common Stock as of the date of grant and no new options will be allowed to accelerate as a result of the change of control caused by consummation of the Offer or the Merger; (d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business or borrowings under the existing credit facilities of the Company or any of its capital stocksubsidiaries as such facilities may be amended or replaced in a manner that does not have a Company Material Adverse Effect (the "Existing Credit Facilities") up to the existing borrowing limit on the date hereof and (B) borrowings to refinance existing indebtedness, (ii) splitredeem, combine purchase, acquire or reclassify offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or (iii) repurchase, redeem any security convertible into or otherwise acquire any of exchangeable for its securities, except, in the case of clause (iii), for (X) the acquisition of shares of Common Stock from holders of Options in full or partial payment of the exercise price payable by such holders upon exercise of Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock capital stock other than in connection with the Transactions; (b) authorize for issuance, issue, sell, deliver or agree or commit exercise of outstanding Company Stock Options and warrants pursuant to issue, sell or deliver (whether through the issuance or granting terms of options, the Company Option Plans and the relevant written agreements evidencing the grant of Company Stock Options and warrants, commitmentsor to use for the 401(k) Plan or the ESPP, subscriptions, rights to purchase or otherwise(iii) make any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (Y) the issuance of the Series B Stock to the Rollover Stockholders in exchange for shares of Common Stock in connection with the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose material acquisition of any assets outside the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth in Section 6.1(c) of the Company Disclosure Schedule; (d) make any loans, advances or capital contributions businesses other than expenditures for current assets in the ordinary course of business consistent with prior practice; (e) pay, discharge and expenditures for fixed or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (i) capital assets in the ordinary course of business consistent with past practiceor (iv) sell, pledge, dispose of or encumber any material assets or businesses other than (A) sales of businesses or assets disclosed in the Company Disclosure Schedule, (B) pledges or encumbrances pursuant to Existing Credit Facilities or other permitted borrowings, (C) sales or dispositions of businesses or assets as may be required by applicable law, (D) sales of inventory and other current assets, or (iiE) in connection sales of idle facilities and related assets. (e) use reasonable best efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers and key employees, and preserve the goodwill and business relationships with customers and others having business relationships with them other than as contemplated by the Transactionsterms of this Agreement; (f) change not enter into or amend any employment, severance, special pay arrangement with respect to termination of employment or other similar arrangements or agreements with any directors, officers or key employees or with any other persons, except pursuant to (i) applicable law; (ii) previously existing contractual arrangements or policies or (iii) employment agreements entered into with a person who is hired or promoted by the accounting principles Company or practices used by it (except as required by generally accepted accounting principles, one of its subsidiaries after the date hereof in which case written notice shall be provided to MergerCo prior to any such change)the ordinary course of business; (g) except as required by law, (i) enter into, adopt, amend not materially increase the salary or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the monetary compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, person except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company practice or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereofexcept pursuant to previously existing contractual arrangements; (h) adopt not adopt, enter into or amend to materially increase benefits or obligations of any amendments to the Articles of Organization or BylawsCompany Plan, other than except (Xi) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) any of the Company Disclosure Schedule) and foregoing involving any such then existing plans, agreements, trusts, funds or arrangements of any company acquired after the date hereof or (Yii) as otherwise expressly provided by the terms of required pursuant to existing contractual arrangements or this Agreement; (i) except as set forth not make capital expenditures, or enter into any binding commitment or contract to make such expenditures, in Section 5.1 each case other than in the ordinary course of the Company Disclosure Schedule, 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 reorganizationbusiness; (j) settle not enter into any contract or compromise commitment (i) providing for the provision of products by the Company or any litigation of its subsidiaries that has a term of more than three years and which is reasonably expected to generate more than $2 million in revenues over its term or (whether ii) providing for the purchase of services by the Company or not commenced prior any of its subsidiaries that has a term of more than one year and which is reasonably expected to the date involve payments of this Agreement)more than $2 million over its term; (k) waivenot make, release change or amend its rights under revoke any confidentiality, "standstill" material Tax election unless required by law or similar make any agreement that the Company entered into in connection or settlement with its consideration any taxing authority regarding any material amount of a potential strategic transaction; provided, however, that the Company may waive, release Taxes or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be which is reasonably likely to constitute a breach materially increase the obligations of its fiduciary duties the Company or the Surviving Corporation to pay Taxes in the Company's stockholders under applicable lawfuture; or (l) enter into an agreement or arrangement with respect to take any of the foregoing actions. A-18 109foregoing.

Conduct of Business Pending the Merger. 6.1 Conduct (a) Except as expressly permitted by clauses (i) through (xix) of Business by the Company. During this Section 4.1(a), during the period from the date of this Agreement to through the Effective Time, except as otherwise contemplated by this Agreement, the Company shall, and shall cause each of the Company its Subsidiaries to, in all material respects carry on their respective businesses its business in the usualordinary course of its business as currently conducted and, regular and ordinary courseto the extent consistent therewith, consistent with past practice, and use their reasonable best efforts to preserve intact their present its current business organizations, keep available the services of their present advisors, managers, its current officers and employees and preserve their its relationships with customers, suppliers, licensors suppliers and others having business dealings with them it to the end that its goodwill and continue existing contracts as in effect on ongoing business shall be unimpaired at the date hereof (for the term provided in such contracts)Effective Time. Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (and except as otherwise expressly permitted contemplated by this Agreement or as contemplated by set forth in Section 4.1 of the Transactions or Company Letter (with specific reference to the extent that applicable subsection below), the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or MergerCo shall otherwise consent in writingdelayed): (i) (A) declare, set aside or pay any dividend dividends on, or make any other distribution (whether in cashactual, stock, property constructive or any combination thereof) deemed distributions in respect of of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such other than dividends or distributions from wholly owned Subsidiaries of the Company, (iiB) 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 (iiiC) repurchasepurchase, redeem or otherwise acquire any shares of capital stock of the Company or any Subsidiary or any other securities thereof or any rights, warrants or options to acquire, any such shares or other securities; (ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities, exceptequity equivalent or convertible securities, in the case of clause other than (iii), for (XA) the acquisition issuance of shares of Company Common Stock from holders of Options in full or partial payment of upon the exercise price payable by such holders upon exercise of Company Stock Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (b) authorize for issuance, issue, sell, deliver or agree or commit issuances pursuant to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on options that are granted after the date of this Agreement in accordance with Section 4.1(a)(ii)(C), in each case, in accordance with their present terms and respective terms; (YB) the issuance of the Series B shares of Company Common Stock pursuant to the Rollover Stockholders Company Stock Purchase Plan in exchange for accordance with its current terms; (C) additional options to acquire shares of Company Common Stock in connection with granted under the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose terms of any assets outside Company Stock Option Plan as in effect on the date hereof in the ordinary course of business (whether by asset acquisitionconsistent with past practice and which stock options have an exercise or purchase price at least equal to the fair market value of the Company Common Stock of the date of grant, stock acquisition or otherwise), except as provided that the aggregate number of shares of Company Common Stock issuable upon exercise of options granted pursuant to this Section 4.1(a)(ii)(C) following the date of this Agreement shall in no event exceed the number of shares of Company Common Stock set forth in Section 6.1(c4.1(a)(ii)(C) of the Company Disclosure ScheduleLetter; (D) transfers or issuances of shares of any Subsidiary of the Company to the Company or any of its wholly-owned Subsidiaries; and (E) where required by applicable law, issuances of director qualifying shares in jurisdictions other than the United States; provided, however, that the Company shall take all actions necessary so that no option issued in accordance with clause (ii)(C) to any employee of the Company or any of its Subsidiaries who is hired after the date hereof shall accelerate in connection with the Merger, the Subsequent Merger or any of the other transactions contemplated by this Agreement, including by reason of any subsequent termination of employment or service; (diii) amend its certificate of incorporation or bylaws or other comparable organizational documents; (iv) acquire or agree to acquire by merging or consolidating with, by purchasing a substantial portion of the assets of or equity in or by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets, other than assets acquired in the ordinary course of business and not material to the Company and its Subsidiaries, taken as a whole; (v) sell, transfer, lease, license (as licensor of Intellectual Property Rights of the Company), mortgage, pledge, encumber or otherwise dispose of any of its properties or assets, other than sales, leases or licenses of inventory, products or services or licenses of Intellectual Property Rights associated with the sale of such products or services, in each case, in the ordinary course of business and not material to the Company and its Subsidiaries, taken as a whole; (vi) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other Person, other than (A) indebtedness, loans, advances, capital contributions and investments between the Company and any of its wholly owned Subsidiaries or between any of such wholly owned Subsidiaries; (B) additional letters of credit under the Company's existing facility not exceeding $5,000,000; (C) refinancings, refundings or replacements of indebtedness, guarantees and investments in existence on the date hereof, provided that the outstanding principal amount is not thereby increased; (D) relocation loans and advances of travel, relocation and other business expenses to employees, in each case, in the ordinary course of business and consistent with past practice; and (E) indemnification advances to directors and officers pursuant to applicable law, the Company Bylaws, and/or indemnification agreements existing as of the date hereof; (vii) merge, liquidate, reorganize or restructure or otherwise alter in any fashion the corporate structure of the Company or any of its Subsidiaries; (viii) enter into, adopt or amend any severance plan, Company Plan, Employee Agreement or material consulting Contract, except as required by applicable law, including the Company Stock Option Plans, other than any severance Contract with non-officer employees involving payments to any such employee not in excess of $100,000 individually (or $200,000 individually with respect to officers) or $1,000,000 in the aggregate with respect to all employees (including officers) so long as, in each case, such severance Contract is in the ordinary course of business consistent with prior practicepast practice and contains a customary release from such employee to the benefit of the Company and its Subsidiaries; (eix) increase the compensation payable or to become payable to its directors, officers or employees (except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not officers of the Company), other than as required by law, or a Contract or Company Plan existing on the date hereof, or establish, adopt, enter into or, except as may be required to comply with applicable law, amend or take action to enhance or accelerate any rights or benefits under, any labor, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, Contract, trust, fund, policy or arrangement for the benefit of any current or former director, officer or employee; provided, however, that prior to the Effective Time, the Company may implement a retention plan for the benefit of those employees of the Company and its Subsidiaries mutually selected by the Company and Parent, which shall provide for the payment of retention benefits to such employees in an aggregate amount not to exceed $3.65 million and payable 12 months after the Effective Time, or at such earlier time and subject to such other terms upon which the Company and Parent shall mutually agree; (x) knowingly violate or knowingly fail to perform any obligation or duty imposed upon it or any Subsidiary by any applicable material federal, state or local law, rule, regulation, guideline or ordinance; (xi) make or adopt any change to its accounting methods, practices or policies (other than actions which are required to be taken by GAAP or under SEC rules, regulations or requirements and requirements communicated to the Company by its independent auditors); (xii) prepare or file any Tax Return in a manner that is materially inconsistent with past practice or, on any such Tax Return, take any material position, make any material election or adopt any material method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods; provided, however, that no covenant described in this Section 4.1(a) shall be deemed to be breached by reason of preparing or filing a Tax Return (or, on any Tax Return, taking any position, making any election, or adopting any method) consistent with a private letter ruling received by the Company from the IRS after the date hereof; (xiii) settle or compromise any material federal, state, local or foreign income tax liability; provided, however, that no covenant described in this Section 4.1(a) shall be deemed to be breached by reason of a settlement or compromise of any Tax liability consistent with a private letter ruling received by the Company from the IRS after the date hereof; (xiv) enter into any material Contract outside of the ordinary course of business or that if entered into on or prior to the date hereof would be required to be disclosed in the Company Letter pursuant to clause (i) (excluding Contracts described in Item 601(b)(10)(iii) of Regulation S-K) or any of clauses (vii) through (ix) of Section 3.11(a) (other than, with respect to Contracts described in clause (ix) of Section 3.11(a), any distribution Contract entered into in the ordinary course of business consistent with past practice with existing U.S. distributors of the Company or any of its Subsidiaries) or amend or terminate any Company Contract unless such amendment or termination is in the ordinary course of business and would not be materially adverse to the Company or any of its Subsidiaries; (xv) enter into any Contract (A) that would, after the Effective Time, restrict Parent or any of its Subsidiaries (including the Company and its Subsidiaries) with respect to engaging in any line of business or conducting business in any geographical area (other than field of use or territorial restrictions of third party Intellectual Property Rights in licenses under which the Company or any of its Subsidiaries is the licensee and which are entered into in the ordinary course of business), (B) that obligates the Company or any of its Affiliates (including Parent or any of its Subsidiaries following the Merger) to extend most favored nation pricing to any Person other than Contracts with such provisions that are entered into in the ordinary course of business consistent with the Company's past practices, or (C) that imposes obligations on the Company or any of its Affiliates (including Parent or any of its Subsidiaries following the Merger) with respect to non-solicitation of customers or suppliers or imposes exclusivity obligations on the Company or any of its Affiliates (including Parent or any of its Subsidiaries following the Merger) with respect to any customer or supplier; (xvi) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $1,000,000 or, in the aggregate, are in excess of $10,000,000; (xvii) waive or release any material right or claim or pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any the payment, discharge or satisfaction (i) satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in the most recent Company SEC Documents filed prior to the date hereof, or incurred in the ordinary course of business consistent with past practice, or (ii) in connection with the Transactions; (fxviii) change initiate any material litigation or arbitration proceeding, settle or compromise any material litigation or arbitration proceeding or initiate, settle or compromise any claim involving intellectual property; or (xix) authorize or announce an intention to do any of the accounting principles foregoing or practices used by it enter into any Contract to do any of the foregoing. (except as required by generally accepted accounting principlesb) During the period from the date of this Agreement to the Effective Time, Parent shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed): (i) (A) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any capital stock of Parent, (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in which case written notice shall be provided lieu of or in substitution for shares of its capital stock, (C) purchase, redeem or otherwise acquire any shares of capital stock of Parent or any Subsidiary or any other securities thereof or any rights, warrants or options to MergerCo prior acquire, any such shares or other securities (other than pursuant to Contracts in existence on the date hereof or pursuant to any such changeParent Stock Plan); (gii) amend the Parent Charter or the Parent Bylaws except as required contemplated by lawclause (vi) below; (iii) acquire or agree to acquire by merging or consolidating with, by purchasing a substantial portion of the assets of or equity in or by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof, other than acquisitions in which the fair market value of the total consideration (i) enter intoincluding the value of indebtedness acquired or assumed), adoptdetermined as of the date of any definitive agreement relating thereto, amend does not exceed $100,000,000 in the aggregate and that would not prevent or terminate any Company Benefit Plandelay beyond the End Date the consummation of the Merger, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company Subsequent Merger or any of the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies in accordance with the terms thereof existing on the date of this Agreement) and one or more of their directors or officers, or (iii) increase in any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer of the Company or any Company Subsidiary set forth in Section 6.1(g) of the Company Disclosure Schedule, or, except for normal increases in the ordinary course of business consistent with past practice, any employee of the Company or any Company Subsidiary, or pay any benefit not required by any Company Benefit Plan or arrangement as in effect as of the date hereoftransactions contemplated hereby; (hiv) adopt any amendments to the Articles of Organization or Bylaws, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rights, preferences and designations thereof (such rights, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 of the Company Disclosure Schedule, adopt a plan or agreement of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganizationdissolution of Parent; (jv) settle sell or compromise any litigation (whether transfer all or not commenced prior to substantially all of the date assets of this Agreement)Parent and its Subsidiaries, taken as a whole; (kvi) waiveincrease, release or amend its rights under take any confidentialityaction to increase, "standstill" or similar agreement that the Company entered into in connection size of the Board of Directors of Parent, except for adding up to four directors (three of which will be added to comply with its consideration of a potential strategic transaction; provided, however, that the Company may waive, release or amend its rights under any such confidentiality, "standstill" or similar agreement if the Company Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable lawSection 5.16); or (lvii) enter into authorize or announce an agreement intention to take do any of the foregoing actionsor enter into any Contract to do any of the foregoing. A-18 109Notwithstanding the foregoing, nothing contained in this Agreement shall prohibit Parent from adopting a stockholder rights plan (so long as any such plan shall not prevent or delay beyond the End Date the consummation of the Merger, the Subsequent Merger or any of the other transactions contemplated hereby) and issuing securities pursuant thereto or amending the Parent Charter to increase the number of shares authorized thereby.

Conduct of Business Pending the Merger. 6.1 Conduct (a) Except as expressly permitted by clauses (i) through (xix) of Business by the Company. During this Section 4.1(a), during the period from the date of this Agreement to through the Effective Time, except as otherwise contemplated by this Agreement, the Company shall, and shall cause each of the Company its Subsidiaries to, in all material respects carry on their respective businesses its business in the usualordinary course of its business as currently conducted and, regular and ordinary courseto the extent consistent therewith, consistent with past practice, and use their reasonable best efforts to preserve intact their present its current business organizations, keep available the services of their present advisors, managers, its current officers and employees and preserve their its relationships with customers, suppliers, licensors suppliers and others having business dealings with them it to the end that its goodwill and continue existing contracts as in effect on ongoing business shall be unimpaired at the date hereof (for the term provided in such contracts)Effective Time. Without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries will (and except as otherwise expressly permitted contemplated by this Agreement or as contemplated by set forth in Section 4.1 of the Transactions or Company Letter (with specific reference to the extent that applicable subsection below), the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or MergerCo shall otherwise consent in writingdelayed): (i) (A) declare, set aside or pay any dividend dividends on, or make any other distribution (whether in cashactual, stock, property constructive or any combination thereof) deemed distributions in respect of of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such other than dividends or distributions from wholly owned Subsidiaries of the Company, (iiB) 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 (iiiC) repurchasepurchase, redeem or otherwise acquire any shares of capital stock of the Company or any Subsidiary or any other securities thereof or any rights, warrants or options to acquire, any such shares or other securities; (ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities, exceptequity equivalent or convertible securities, in the case of clause other than (iii), for (XA) the acquisition issuance of shares of Company Common Stock from holders of Options in full or partial payment of upon the exercise price payable by such holders upon exercise of Company Stock Options outstanding on the date of this Agreement and (Y) the acquisition of shares of Common Stock from the stockholders of the Company set forth in Section 6.1(a) of the Company Disclosure Schedule (collectively, the "Rollover Stockholders") upon the exchange of such shares for shares of Series B Stock in connection with the Transactions; (b) authorize for issuance, issue, sell, deliver or agree or commit issuances pursuant to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities (including indebtedness having the right to vote) or equity equivalents (including, without limitation, stock appreciation rights), other than (X) the issuance of shares of Common Stock upon the exercise of Options outstanding on options that are granted after the date of this Agreement in accordance with Section 4.1(a)(ii)(C), in each case, in accordance with their present terms and respective terms; (YB) the issuance of the Series B shares of Company Common Stock pursuant to the Rollover Stockholders Company Stock Purchase Plan in exchange for accordance with its current terms; (C) additional options to acquire shares of Company Common Stock in connection with granted under the Transactions; (c) acquire, sell, lease, encumber, transfer or dispose terms of any assets outside Company Stock Option Plan as in effect on the ordinary course of business (whether by asset acquisition, stock acquisition or otherwise), except as set forth in Section 6.1(c) of the Company Disclosure Schedule; (d) make any loans, advances or capital contributions other than in the ordinary course of business consistent with prior practice; (e) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than any payment, discharge or satisfaction (i) date hereof in the ordinary course of business consistent with past practice, practice and which stock options have an exercise or (ii) in connection with purchase price at least equal to the Transactions; (f) change any fair market value of the accounting principles Company Common Stock of the date of grant, provided that the aggregate number of shares of Company Common Stock issuable upon exercise of options granted pursuant to this Section 4.1(a)(ii)(C) following the date of this Agreement shall in no event exceed the number of shares of Company Common Stock set forth in Section 4.1(a)(ii)(C) of the Company Letter; (D) transfers or practices used by it (except as required by generally accepted accounting principles, in which case written notice shall be provided issuances of shares of any Subsidiary of the Company to MergerCo prior to any such change); (g) except as required by law, (i) enter into, adopt, amend or terminate any Company Benefit Plan, (ii) enter into, adopt, amend or terminate any agreement, arrangement, plan or policy between the Company or any of its wholly-owned Subsidiaries; and (E) where required by applicable law, issuances of director qualifying shares in jurisdictions other than the United States; provided, however, that the Company Subsidiaries (other than terminations of agreements, arrangements, plans or policies shall take all actions necessary so that no option issued in accordance with the terms thereof existing on the date of this Agreementclause (ii)(C) and one or more of their directors or officers, or (iii) increase in to any manner the compensation or fringe benefits of any director of the Company or the compensation or fringe benefits of any officer employee of the Company or any of its Subsidiaries who is hired after the date hereof shall accelerate in connection with the Merger, the Subsequent Merger or any of the other transactions contemplated by this Agreement, including by reason of any subsequent termination of employment or service; (iii) amend its certificate of incorporation or bylaws or other comparable organizational documents; (iv) acquire or agree to acquire by merging or consolidating with, by purchasing a substantial portion of the assets of or equity in or by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets, other than assets acquired in the ordinary course of business and not material to the Company Subsidiary set forth and its Subsidiaries, taken as a whole; (v) sell, transfer, lease, license (as licensor of Intellectual Property Rights of the Company), mortgage, pledge, encumber or otherwise dispose of any of its properties or assets, other than sales, leases or licenses of inventory, products or services or licenses of Intellectual Property Rights associated with the sale of such products or services, in Section 6.1(geach case, in the ordinary course of business and not material to the Company and its Subsidiaries, taken as a whole; (vi) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other Person, other than (A) indebtedness, loans, advances, capital contributions and investments between the Company and any of its wholly owned Subsidiaries or between any of such wholly owned Subsidiaries; (B) additional letters of credit under the Company’s existing facility not exceeding $5,000,000; (C) refinancings, refundings or replacements of indebtedness, guarantees and investments in existence on the date hereof, provided that the outstanding principal amount is not thereby increased; (D) relocation loans and advances of travel, relocation and other business expenses to employees, in each case, in the ordinary course of business and consistent with past practice; and (E) indemnification advances to directors and officers pursuant to applicable law, the Company Bylaws, and/or indemnification agreements existing as of the date hereof; (vii) merge, liquidate, reorganize or restructure or otherwise alter in any fashion the corporate structure of the Company Disclosure Scheduleor any of its Subsidiaries; (viii) enter into, oradopt or amend any severance plan, Company Plan, Employee Agreement or material consulting Contract, except as required by applicable law, including the Company Stock Option Plans, other than any severance Contract with non-officer employees involving payments to any such employee not in excess of $100,000 individually (or $200,000 individually with respect to officers) or $1,000,000 in the aggregate with respect to all employees (including officers) so long as, in each case, such severance Contract is in the ordinary course of business consistent with past practice and contains a customary release from such employee to the benefit of the Company and its Subsidiaries; (ix) increase the compensation payable or to become payable to its directors, officers or employees (except for normal increases in the ordinary course of business consistent with past practice, any employee practice in salaries or wages of employees of the Company or any Company Subsidiaryof its Subsidiaries who are not officers of the Company), other than as required by law, or pay any benefit not required by any a Contract or Company Benefit Plan or arrangement as in effect as of existing on the date hereof; (h) adopt any amendments to the Articles of Organization , or Bylawsestablish, other than (X) to authorize the shares of Series B Stock to be issued to the Rollover Stockholders and to establish the rightsadopt, preferences and designations thereof (such rightsenter into or, preferences and designations of such Series B Stock shall be as set forth in Section 6.1(h) of the Company Disclosure Schedule) and (Y) as otherwise expressly provided by the terms of this Agreement; (i) except as set forth in Section 5.1 may be required to comply with applicable law, amend or take action to enhance or accelerate any rights or benefits under, any labor, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, Contract, trust, fund, policy or arrangement for the benefit of the Company Disclosure Scheduleany current or former director, adopt a plan of complete officer or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (j) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement); (k) waive, release or amend its rights under any confidentiality, "standstill" or similar agreement that the Company entered into in connection with its consideration of a potential strategic transactionemployee; provided, however, that prior to the Effective Time, the Company may waiveimplement a retention plan for the benefit of those employees of the Company and its Subsidiaries mutually selected by the Company and Parent, release which shall provide for the payment of retention benefits to such employees in an aggregate amount not to exceed $3.65 million and payable 12 months after the Effective Time, or amend at such earlier time and subject to such other terms upon which the Company and Parent shall mutually agree; (x) knowingly violate or knowingly fail to perform any obligation or duty imposed upon it or any Subsidiary by any applicable material federal, state or local law, rule, regulation, guideline or ordinance; (xi) make or adopt any change to its rights accounting methods, practices or policies (other than actions which are required to be taken by GAAP or under SEC rules, regulations or requirements and requirements communicated to the Company by its independent auditors); (xii) prepare or file any Tax Return in a manner that is materially inconsistent with past practice or, on any such confidentialityTax Return, "standstill" take any material position, make any material election or adopt any material method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar agreement if Tax Returns in prior periods; provided, however, that no covenant described in this Section 4.1(a) shall be deemed to be breached by reason of preparing or filing a Tax Return (or, on any Tax Return, taking any position, making any election, or adopting any method) consistent with a private letter ruling received by the Company Board determines based on from the advice IRS after the date hereof; (xiii) settle or compromise any material federal, state, local or foreign income tax liability; provided, however, that no covenant described in this Section 4.1(a) shall be deemed to be breached by reason of independent legal counsel that failure to do so would be reasonably likely to constitute a breach settlement or compromise of its fiduciary duties to any Tax liability consistent with a private letter ruling received by the Company's stockholders under applicable law; or (l) enter into an agreement to take any of Company from the foregoing actions. A-18 109IRS after the date hereof;