Common use of Conduct of Business Prior to the Effective Time Clause in Contracts

Conduct of Business Prior to the Effective Time. Except as expressly permitted herein, set forth in Section 6.1 of the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall, and cause its Subsidiaries to, conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to maintain and preserve substantially intact its business organization and the goodwill of those having business relationships with it. Without limiting the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: (a) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants or other rights of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted in the ordinary course of business consistent with past practice and on Ordinary Course Terms (as defined below) to new Company employees under the Company Option Plans outstanding on the date hereof, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;

Conduct of Business Prior to the Effective Time. (a) Except (i) as expressly contemplated or permitted hereinby this Agreement, (ii) as required by any Law applicable to the Company or any of its Subsidiaries (including any COVID-19 Measures), or any COVID-19 Action, (iii) as set forth in on Section 6.1 5.1(a) of the Company Disclosure Schedule or (iv) with the prior written consent of ExceptionsParent (which consent shall not be unreasonably withheld, conditioned or required by Lawdelayed), during the period from the Execution Date through date of this Agreement to the Effective Time or the earlier termination of this Agreement pursuant to its termsAgreement, (A) the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, and (ii) use its reasonable best efforts to (I) maintain and preserve substantially intact its assets, properties, Contracts or other legally binding understandings, business organization organization, rights, licenses, authorizations, franchises and the goodwill of those having other authorizations issued by Governmental Entities, (II) preserve its business relationships with it. Without limiting Money Transfer Agents, banks, customers, vendors and others doing business with it and (III) retain the foregoingservices of its officers and key employees, and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, (B) the Company shall not, nor and shall it not permit any of its Subsidiaries to, without the prior written consent of Parent: (ai) Declare(A) amend or otherwise change the Company’s certificate of incorporation or bylaws and (B) with respect to Subsidiaries of the Company, set aside amend or pay otherwise change their applicable organizational documents in any dividends on material respect, and (C) adopt any rights plan, “poison-pill” or make any other distributions similar plan or agreement (whether in cashhowever structured or documented); (ii) adjust, stock, equity securities or property) in respect of any capital split (including a reverse stock or split), combine or reclassify any capital stock or issue other equity interest of the Company, or authorize engage in any dividend or distributions that would change the number of Shares issuable upon conversion, exchange or exercise of any issued and outstanding securities of the Company (including the Company Option Awards, Company LTI Awards and Company Warrants) into a different number of Shares or a different class of securities, in each case except as may be required pursuant to the terms of the Company Warrants and that does not increase the aggregate Warrant Consideration payable hereunder, or enter into a plan of consolidation, merger, share exchange, share acquisition, reorganization or complete or partial liquidation with any person (other than any consolidation, merger or reorganization solely among wholly-owned Subsidiaries of the Company); (iii) issue, grant, sell, dispose of, redeem or repurchase any equity securities or equity-based award in the Company or any of its Subsidiaries, or securities convertible into, or exchangeable or exercisable for, any such equity securities or awards, or any rights of any kind to acquire any such equity securities or such convertible or exchangeable securities, other than (a) the issuance of Shares upon the exercise of Company Option Awards or Company Warrants outstanding as of the date hereof in accordance with their terms, (b) in connection with the vesting or settlement of any Pre-2023 Company Time-Based RSU Award, Pre-2023 Company Performance-Based RSU Award or other securities equity-based award of the Company (including the forfeiture thereof pursuant to the terms thereof or to satisfy any Tax withholding obligations) outstanding as of the date hereof in respect ofaccordance with their terms, in lieu of or in substitution for any capital stock, other than any such transaction (c) by a wholly-owned Subsidiary of it that remains a the Company to the Company or another wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants or (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (Ad) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants LTI Awards or other rights equity-based awards to directors and employees pursuant to the terms of the Company existing on Stock Plan that are either (i) in connection with hiring, promotion and retention or (ii) in connection with annual equity awards for calendar years 2022 and 2023, to the date hereof extent the Closing has not occurred by such time, in accordance with their present terms or granted pursuant to each case of the foregoing clauses (Bi) or and (Cii) hereof, (B) grants of stock options to purchase Company Common Stock granted in the ordinary course of business consistent with past practice and on Ordinary Course Terms (as defined below) to new Company employees under with vesting terms that are consistent with the vesting terms used for prior grants by the Company Option Plans outstanding on in accordance with, and subject to the date hereoflimitations in, Section 5.1(a)(iii) of the Company Disclosure Schedule; (Civ) grants declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any Shares, Company Warrants or other shares of capital stock or equity interests (except for any dividend or distribution by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company); (v) sell, exclusively license, transfer, mortgage, encumber or otherwise dispose of (whether by merger, consolidation or sale of stock options to purchase or assets or otherwise), any assets, rights or businesses of the Company Common Stock granted to existing Company employees or its Subsidiaries (including any capital stock of any Subsidiaries), in each case other than to directors and officers)dispositions (1) of assets, under the Company Option Plans outstanding on the date hereof rights or businesses in the ordinary course of business consistent with past practice or (2) dispositions of any assets, rights or businesses or the abandonment or failure to maintain any Registered IP not exceeding $1,500,000 individually or $3,000,000 in connection with annual compensation reviews the aggregate; (vi) acquire (whether by merger, consolidation or ordinary course promotions and acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any assets, in each case on Ordinary Termsother than (a) purchases in the ordinary course of business consistent with past practice or (b) acquisitions not exceeding $2,500,000 individually or $7,500,000 in the aggregate; (vii) (a) incur, issue, assume or guarantee any indebtedness for borrowed money or any debt securities in an aggregate amount exceeding $5,000,000 outstanding at one time and guarantees thereof, except for (1) letters of credit and borrowings in the ordinary course of business under the Company’s Revolving Credit Facility (as defined and as set forth in the Credit Agreement) and (D2) intercompany indebtedness among the Company and/or wholly-owned Subsidiaries, or (b) enter into any swap or hedging transaction or other derivative agreement (other than forward Contracts entered into in the ordinary course of business); provided, that, for the avoidance of doubt, this clause (vii) shall not prohibit the continuing guarantee of existing indebtedness for borrowed money of Company or any of its Subsidiaries; (viii) make any loans, advances or capital contributions to, or investments in, any other person (other than to any wholly-owned Subsidiary of the Company) in excess of $1,000,000 individually or $2,000,000 in the aggregate; (ix) enter into any Contract involving or providing for the settlement of, or other arrangements with respect to, any Claims or threatened Claim (or series of related Claims) (a) with a Governmental Entity (except settlements, or other arrangements, for an immaterial monetary fine or immaterial restrictions or obligations), (b) that materially restricts or imposes material obligations on the Company or (c) that involves payments by the Company or any of its Subsidiaries after the date hereof in excess of $1,000,000 individually and $2,000,000 in the aggregate (excluding any amounts that may be paid under existing insurance policies) or that provides for an admission of fault or criminal liability, equitable remedies, or restriction in any material manner on the operations of the business of the Company and its Subsidiaries, including the use of any Money Transmitter License or the use, transfer or licensing of Intellectual Property by the Company or any of its Subsidiaries, provided that this clause (ix) shall not apply to any settlement of any suit or proceeding described in Section 5.10, which shall be governed by the provisions thereof; (x) except (A) in the ordinary course of business consistent with past practice or (B) as otherwise explicitly permitted pursuant to this Section 5.1(a): enter into, amend in any material respect, waive compliance with any material rights with respect to, or cancel or terminate any Material Contract or Contract which if entered into prior to the date hereof would be a Material Contract (with the Company to use reasonable best efforts to notify Parent promptly thereafter of any such actions (which notification may be provided by email or telephonically to employees or officers of Parent)); (xi) except for the expenditures contemplated by and consistent with the 2022 and 2023 capital expenditure budgets set forth on Section 5.1(a)(xi) of the Company Disclosure Schedule (the “Capital Expenditure Budget”), make, or commit to make, or otherwise authorize any capital expenditures in excess of $3,000,000 in 2022 or $3,000,000 in 2023; (xii) except in the ordinary course of business consistent with past practice or as otherwise required by the terms of any Plan or Contract existing as of the date hereof, as required by applicable Law or as disclosed in Section 5.1(a)(xii) of the Company Disclosure Schedule: (a) adopt, establish, enter into, amend or modify or agree to establish, amend or modify (or announce an intention to establish, amend or modify) or terminate any Plan or arrangement that would constitute a Plan if in effect as of the date hereof, (b) materially increase the compensation or benefits, including severance benefits, or create any new rights to material payments or benefits, including any severance, change in control, retention, or similar compensation or benefits, of any Company Employee; (c) take any action to accelerate the vesting or time of payment of any material compensation or benefit under the Company Stock Plan or awards granted thereunder; (d) loan or advance any money or other property to any present or former director, officer or employee of the Company or its Subsidiaries or (e) enter into any trust, annuity or insurance Contract or similar agreement or take any other action to fund or otherwise secure the payment of any compensation or benefit, or increase the funding obligation or contribution rate of any Plan subject to Section 3.7(b), issuances Title IV of Company Common Stock pursuant to the Company ESPPERISA; provided, however, that it shall not be a violation of this Section 5.1(a)(xii) if the stock option grants pursuant Company or any of its Subsidiaries enters into a retention bonus agreement with a Company Employee after the date of this Agreement so long as the total cost to clause the Company and its Subsidiaries under all such retention bonus agreements with all such Company Employees does not exceed $5,000,000 in the aggregate and no retention bonus is made to an individual that could result in such payment being subject to a loss of deduction under Section 280G of the Code; (xiii) make any material changes in its methods, practices or policies of financial accounting, except as may be required under Law, rule, regulation or U.S. GAAP in each case following consultation with the Company’s independent public accountants (with the Company to use reasonable best efforts to notify Parent of any such actions promptly thereafter (which notification may be provided by email or telephonically to employees or officers of Parent)); (a) make or change any material Tax election, (b) agree with tax authorities on the settlement of any material Tax examination, audit assessment or other proceedings of the Company or any of its Subsidiaries, (c) enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund, offset, or other reduction in liability, (d) consent to any extension or waiver of any limitation period with respect to any material Tax claim or assessment, (e) file an amended income or other material Tax Return, (f) change any annual Tax accounting period or adopt or change any method of Tax accounting principles or practices, (g) fail to pay any material Taxes as they become due and payable, or (h) enter into any Tax sharing, Tax indemnity or Tax allocation agreement or similar Contract or arrangement, in each case, that includes a party other than the Company or any of its Subsidiaries; (xv) fail to use its reasonable best efforts to maintain in full force and effect any material existing insurance policies of the Company and its Subsidiaries or to replace such material insurance policies with comparable insurance policies covering the Company, its Subsidiaries and their respective properties, assets and businesses; (xvi) sell, transfer, lease, pledge or otherwise encumber or subject to any Lien, abandon, cancel, let lapse or convey or dispose of any Intellectual Property, except for (A) where the Company has, in its reasonable business judgment, decided to cancel, abandon, allow to lapse or not renew any Registered IP, (B) Permitted Liens or (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals pledges, non-exclusive licenses in the aggregate (ordinary course of business consistent with past practice that would not, individually or in the grants describedaggregate, and subject reasonably be expected to be material to the limitationsCompany; (xvii) effectuate a “plant closing,” “mass layoff” (each as defined in the WARN Act) or other employee layoff event (as defined in the WARN Act) affecting in whole or in part any site of employment, facility, operating unit or employee; (xviii) fail to use reasonable best efforts to maintain in clauses full force and effect any Money Transmitter License required to continue to operate its business in the ordinary course in all material respects; or (Bxix) and agree to, or make any commitment to, take any of the actions prohibited by this Section 5.1(a). (C)b) Nothing contained in this Agreement is intended to give Parent, directly or indirectly, the “Ordinary Course Grants”right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and for purposes conditions of this Section 6.1Agreement, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock complete control and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, supervision over its and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;its Subsidiaries’ respective operations.

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted hereinby this Agreement or with the prior written consent of Parent, set forth in Section 6.1 of which consent shall not be unreasonably withheld, delayed or conditioned, during the Company Schedule of Exceptions, or required by Law, period from the Execution Date through date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement pursuant to its termsAgreement, the Company Parties shall, and shall cause the Company Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct its their business in all material respects in the ordinary course of its business consistent with past practice andand in compliance with all applicable Laws, to the extent consistent therewith, (b) use its reasonable best efforts to (i) maintain and preserve substantially intact its their business organization organizations and business relationships, (ii) retain the goodwill services of those having business relationships with it. Without limiting the foregoingtheir officers and employees, and except as otherwise expressly (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated by hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 6.1 5.1(d) of the Company Schedule of ExceptionsParent Disclosure Letter, (2) as expressly contemplated by this Agreement, or required by Law(3) with the prior written consent of the Company, from the Execution Date through the Effective Time which shall not be unreasonably withheld, delayed or the termination of this Agreement pursuant to its termsconditioned, the Company Parent shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parentdirectly or indirectly: (ai) Declarecause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends on or make any other distributions (whether in the form of cash, stock, equity securities or property) in respect of any capital stock of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any capital stock of their equity interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (b) Purchaserepurchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock their equity interests or the capital stock of its Subsidiaries, any other than repurchases of unvested shares at cost securities thereof or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of capital stock Parent Common Stock; (iii) implement or adopt any securities convertible into shares of capital stockmaterial change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into other agreements a plan of complete or commitments obligating it partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to issue take, or make any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants or other rights commitment to take any of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted in the ordinary course of business consistent with past practice and on Ordinary Course Terms (as defined below) to new Company employees under the Company Option Plans outstanding on the date hereof, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of actions prohibited by this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;5.1(d).

Conduct of Business Prior to the Effective Time. Except as expressly permitted herein, set forth in Section 6.1 Conduct of Business of the Company Schedule of Exceptions, or required by Law, from Company. During the Execution Date through period commencing on the date hereof and continuing until the Effective Time or the termination of this Agreement pursuant to its termsTime, the Company shall, and cause its Subsidiaries to, conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to maintain and preserve substantially intact its business organization and the goodwill of those having business relationships with it. Without limiting Sole Stockholder agree that the foregoingCompany, and except as otherwise expressly contemplated by this Agreement or as set forth agreed to in Section 6.1 of writing by the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: (a) Declare, set aside will carry on its business only in the ordinary course and consistent with past practice; (b) will not declare or pay any dividends dividend on or make any other distributions distribution (whether in cash, stock, equity securities or propertyhowever characterized) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance shares of any other securities in respect of, in lieu of or in substitution for any its capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (bc) Purchasewill not, directly or indirectly, redeem or otherwise acquirerepurchase, or agree to redeem or repurchase, directly or indirectly, any shares of its capital stock stock; (d) will not amend its Certificate of Incorporation or By-Laws; (e) will not issue, or agree to issue, any shares of its capital stock, or any options, warrants or other rights to acquire shares of its capital stock, or any securities convertible into or exchangeable for shares of its capital stock; (f) will not combine, split or otherwise reclassify any shares of its capital stock; (g) will not form any subsidiaries; (h) will use its best efforts to preserve intact its present business organization, keep available the services of its officers and key employees and preserve its relationships with clients and others having business dealings with it to the end that its goodwill and ongoing business shall not be materially impaired at the Effective Time; (i) will not (i) make any capital expenditures individually or in the aggregate in excess of $10,000, (ii) enter into any license, distribution, OEM, reseller, joint venture or other similar agreement other than in the ordinary course, (iii) enter into or terminate any lease of, or purchase or sell, any real property, (iv) enter into any leases of personal property involving individually or in the aggregate in excess of $10,000 annually, (v) incur or guarantee any additional indebtedness for borrowed money other than in the ordinary course, (vi) create or permit to become effective any security interest, mortgage, lien, charge or other encumbrance on any of its properties or assets, or (vii) enter into any agreement to do any of the foregoing; (j) will not adopt or amend any Benefit Plan for the benefit of Employees, or increase the salary or other compensation (including, without limitation, bonuses or severance compensation) payable or to become payable to its Employees or accelerate, amend or change the period of exercisability or the capital vesting schedule of options or restricted stock granted under any stock option plan or agreements or enter into any agreement to do any of the foregoing, except as specifically required by the terms of such plans or agreements; (k) will not accelerate receivables or delay payables; (l) will promptly advise the Parent of the commencement of, or threat of (to the extent that such threat comes to the knowledge of the Company or the Sole Stockholder) any claim, action, suit, proceeding or investigation against, relating to or involving the Company or any of its Subsidiariesrespective officers, other than repurchases of unvested shares at cost employees, agents or for de minimis consideration consultants in connection with either their businesses or the termination of transactions contemplated hereby; (m) will use its commercially reasonable efforts to maintain in full force and effect all insurance policies maintained by the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect Company on the date hereof; (cn) Issuewill not enter into any agreement to dissolve, delivermerge, sellconsolidate or, authorizesell any material assets of the Company (other than in the ordinary course) or acquire or agree to acquire by merging or consolidating with, pledge or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division, or otherwise encumber any shares of capital stock, acquire or subscriptions, rights, warrants or options agree to acquire any shares assets in excess of capital stock $10,000 in the aggregate; and (o) will not make any payments to officers or any securities convertible into shares of capital stock, or directors other than in the ordinary course; (p) will not enter into other any agreements with contractors or commitments obligating it consultants (or amend or authorize additional work orders with respect to issue any such securities existing agreements); and (q) will not change, accelerate or rightsalter, other than: in each case, the payment terms of any existing contract or agreement nor enter into any contract or agreement with payment terms (Aincluding timing) issuances not materially consistent with past practice. 6.2 Conduct of Company Common Stock upon Business of Acquisition Corp. During the exercise of Company Options, Company Warrants or other rights of the Company existing period commencing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereofand continuing until the Effective Time, (B) grants of stock options to purchase Company Common Stock granted in the ordinary course of business consistent with past practice and on Ordinary Course Terms (as defined below) to new Company employees under the Company Option Plans outstanding on the date hereof, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) Acquisition Corp. shall not exceed grants engage in any activities of options to acquire 25,000 shares of Company Common Stock to all such individuals any nature except as provided in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of or contemplated by this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;Agreement.

Conduct of Business Prior to the Effective Time. Except as expressly permitted herein, set forth in Section 6.1 of the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall, and cause its Subsidiaries to, conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to maintain and preserve substantially intact its business organization and the goodwill of those having business relationships with it. Without limiting the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent:Parent (not to be unreasonably withheld or delayed): (a) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are any Ordinary Course Grants (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or the capital stock of its Subsidiaries, other than net issuances of Company RSUs upon the vesting thereof, repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option option, RSU or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, the vesting of Company RSUs, the exercise of Company Warrants or other rights of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B), (C) or (CD) hereof, (B) grants of stock options to purchase Company Common Stock granted Options with Ordinary Course Pricing (as defined below) or Company RSUs made in the ordinary course of business consistent with past practice and on with Ordinary Course Terms Vesting (as defined below) to new Company employees under the Company Option Plans outstanding on Company’s Amended and Restated 2009 Stock Incentive Plan (the date hereof“2009 Plan”), (C) grants of stock options to purchase Company Common Stock granted Options with Ordinary Course Pricing (as defined below) or Company RSUs to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and directors, (ii) a vesting schedule no more favorable than one-quarter executive officers and (1/4iii) on disqualified individuals within the one-year anniversary meaning of Section 280G of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of Code if the date of grant thereafter;issuance to such persons

Conduct of Business Prior to the Effective Time. Except as expressly permitted herein, set forth in Section 6.1 5.1 of the Company Schedule of ExceptionsDisclosure Schedule, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall, and cause its Subsidiaries to, shall conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to maintain and preserve substantially intact its business organization and the goodwill of those having business relationships with it. Without limiting the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 5.1 of the Company Schedule of ExceptionsDisclosure Schedule, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: (a) DeclareCause, set aside permit or pay propose any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting material amendments to the Company from granting Certificate or Company Options that are Ordinary Course Grants (as defined below)Bylaws; (b) Purchase, redeem or otherwise acquire, directly or indirectly, Amend any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation material term of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereofoutstanding Company Capital Stock; (c) Merge or consolidate with any other Person; (d) Issue, deliver, deliver or sell, authorizeor authorize or propose the issuance, pledge delivery or otherwise encumber sale of, any shares of capital stockCompany Capital Stock or other equity interests of, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stockinto, or enter into other agreements any rights, warrants, calls, subscriptions or commitments obligating it options to issue acquire, any such securities shares, equity interests, or rightsconvertible securities, other than: (A) issuances of Company Common Capital Stock upon the exercise of Company Options, Company Warrants or other rights of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted in the ordinary course of business consistent with past practice and on Ordinary Course Terms (as defined below) to new Company employees under the Company Option Plans outstanding on the date hereof, and (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate Course Terms (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.15.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;

Conduct of Business Prior to the Effective Time. Except as expressly permitted herein, set forth in Section 6.1 of the (a) The Company Schedule of Exceptions, or required by Lawagrees that, from and after the Execution Date through date hereof and prior to the Effective Time or the termination of date, if any, on which this Agreement is earlier terminated pursuant to its termsSection 7.1 (the "Termination Date"), and except as may be agreed in writing by DCNA, which agreement shall not be unreasonably withheld or delayed, as may be expressly permitted pursuant to this Agreement, the Company Company: (i) shall, and shall cause each of its Subsidiaries to, conduct its business operations in all material respects in the according to their ordinary course of its business consistent with past practice and, to in substantially the extent consistent therewith, same manner as heretofore conducted; (ii) shall use its reasonable best efforts efforts, and cause each of its Subsidiaries to maintain and use its reasonable best efforts, to preserve substantially intact its business organization and goodwill, keep available the goodwill services of those having business its current officers and other key employees and preserve its current relationships with it. Without limiting the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of those Persons having significant business dealings with the Company Schedule and its Subsidiaries; (iii) shall notify DCNA of Exceptions, any emergency or required by Law, from other substantial change in the Execution Date through normal course of its or its Subsidiaries' respective businesses or in the Effective Time operation of its or its Subsidiaries' respective properties and of any complaints of or hearings (or written communications indicating that the termination same are threatened) of this Agreement pursuant to its terms, which the Company has knowledge before any Governmental Entity if such emergency, change, complaint, investigation or hearing would have a Material Adverse Effect on the Company; (iv) shall not, nor and shall it not permit any of its Subsidiaries that is not incorporated or organized in the United States or not wholly owned to, without the prior written consent of Parent: (a) Declarerepatriate funds, set aside authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (other than dividends or distributions by wholly owned Subsidiaries of the Company); (whether v) shall not, and shall not permit any of its Subsidiaries to establish, enter into or amend any severance plan, agreement or arrangement or any Company Plan or materially increase the compensation payable or to become payable or the benefits provided to its officers or employees, except as may be required by applicable law or a contract in cashexistence on the date hereof, stockand except for increases for nonofficer employees in the normal course of business consistent with past practice and except as set forth in Section 5.1(a)(v) of the Company Disclosure Schedule; (vi) shall not, equity securities and shall not permit any of its Subsidiaries to, authorize or property) in announce an intention to authorize, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of any capital stock assets or splitsecurities, combine or reclassify any capital stock disposition of any assets or securities, except in an amount that is not material to the Company and its Subsidiaries taken as a whole and except for the disposition of the Company's 50% ownership interest in XxXxxxxx Marine Exhaust, Inc.; (vii) shall not, and shall not permit any of its Subsidiaries to, propose or adopt any amendments to its certificate of incorporation or by- laws (or other similar organizational documents); (viii) shall not, and shall not permit any of its Subsidiar ies to, issue or authorize the issuance of, or agree to issue or sell any shares of capital stock of any other securities class (whether through the issuance or granting of options, warrants, commitments, convertible securities, subscriptions, rights to purchase or otherwise) except for the disposition of the Company's 50% ownership interest in respect ofXxXxxxxx Marine Exhaust, Inc., or take any action to cause to be exercisable any unexercisable option under any existing option plan, except for the issuance of shares of Company Common Stock pursuant to options and grants outstanding as of the date of this Agreement which were issued or made, as the case may be, pursuant to the Company's 1993 Stock Incentive Plan and 1998 Stock Incentive Plan and each of which is set forth in lieu Section 3.2(a) of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below)Disclosure Schedule; (bix) Purchaseshall not, and shall not permit any of its Subsidiaries to, reclassify, combine, split, purchase or redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost purchase or for de minimis consideration in connection with either the termination of the employment relationship with redeem any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any such shares (other than as contemplated by the Company Plans); (x) shall not, and shall not permit any of capital stock or any securities convertible into shares of capital stockits Subsidiaries to, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances incur, assume or prepay any indebtedness or any other liabilities for borrowed money or issue any debt securities other than incurrences and repayments of Company Common Stock upon indebtedness under the exercise of Company Options, Company Warrants Company's or other rights of the Company existing its Subsidiaries' credit facilities in existence on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted this Agreement in the ordinary course of business consistent with past practice and on Ordinary Course Terms or (as defined belowB) to new Company employees under assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the Company Option Plans outstanding on the date hereof, (C) grants obligations of stock options to purchase Company Common Stock granted to existing Company employees any other Person (other than to directors and officerswholly owned Subsidiaries), except for guarantees by Subsidiaries of the Company of indebtedness permitted under the preceding clause (A); (xi) shall not, and shall not permit any of its Subsidiaries to (or consent to any proposal by any Person in which the Company Option Plans outstanding on has an investment to), make or forgive any loans, advances or capital contributions to, or investments in, any other Person other than the date hereof Company or any wholly- owned Subsidiary of the Company (including any intercompany loans, advances or capital contributions to, or investments in, any affiliate) other than advances to employees in the ordinary course of business in accordance with the Company's or its Subsidiaries' established policies; (xii) shall not, and shall not permit any of its Subsidiaries to, (A) enter into any material lease or license or otherwise subject to any material Lien any of its properties or assets (including securitizations), other than in the ordinary course of business consistent with past practice practice; (B) modify or amend in connection with annual compensation reviews any material respect, or terminate, any of its material contracts (except in the ordinary course promotions of business); (C) waive, release or assign any rights that are material to the Company and in each case on Ordinary Terms, and its Subsidiaries taken as a whole; or (D) subject permit any insurance policy naming it as a beneficiary or a loss payable payee to Section 3.7(b)lapse, issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals be cancelled or expire unless a new policy with substantially identical coverage is in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary effect as of the date of grantlapse, cancellation or expiration; (xiii) shall not, and one-forty-eighth (1/48) on each monthly anniversary shall not permit any of its Subsidiaries to change any of the financial accounting methods used by it unless required by generally accepted accounting principles of the applicable country or change in applicable law; (xiv) shall not, and shall not permit any of its Subsidiaries to, file with, or submit to, any Governmental Entity (including the SEC) any registration statement, prospectus or other similar document, or any amendment or supplement thereto, relating to the issuance of any securities of the Company or any Subsidiary of the Company, other than a registration statement of the Company on Form S-8 (including any final prospectus thereon) or any amendment or supplement thereto, filed with the SEC in connection with the Company's 1993 Stock Incentive Plan and 1998 Stock Incentive Plan in each case, in the ordinary course of business consistent with past practice; (xv) shall not, and shall not permit any of its Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions or take any action which would (y) make any representation or warranty in Article III hereof untrue or incorrect in any material respect, or (z) result in any of the conditions to the Offer set forth in Annex A hereto or any of the conditions to the Merger set forth in Article VI hereof not being satisfied; (b) DCNA agrees that, from and after the date hereof and prior to the earlier of grant thereafter;the Effective Time and the Termination Date, and except as may be agreed in writing by the Company or as may be expressly permitted pursuant to this Agreement, DCNA shall not, and shall not permit any of its Subsidiaries to (i) agree, in writing or otherwise, to take any action which would result in any of the conditions to the Offer set forth in Annex A hereto or any of the conditions to the Merger set forth in Article VI hereof not being satisfied or (ii) delay the consummation of the Offer.

Conduct of Business Prior to the Effective Time. (a) Except (i) as otherwise expressly contemplated or permitted hereinby this Agreement, (ii) as required by applicable Law, or (iii) as set forth in Section 6.1 5.1(a) of the Company Disclosure Schedule or with the prior written consent of ExceptionsParent (which consent shall not be unreasonably withheld, conditioned or required by Lawdelayed), during the period from the Execution Date through the Effective Time or the termination date of this Agreement pursuant to its termsthe earlier of the date of termination hereof in accordance with Article VII or the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, and (ii) use its reasonable best efforts to maintain and preserve substantially intact its business organization organization, and the goodwill of those having its rights, authorizations, franchises and other authorizations issued by Governmental Entities, preserve its business relationships with it. Without limiting customers, vendors, distributors and others doing business with it and retain the foregoing, services of its officers and except key employees. (b) Except (i) as otherwise expressly contemplated or permitted by this Agreement Agreement, (ii) as required by applicable Law, or (iii) as set forth in Section 6.1 5.1(b) of the Company Schedule of ExceptionsDisclosure Schedule, or required by Law, during the period from the Execution Date through the Effective Time or the termination date of this Agreement pursuant to its termsthe earlier of the date of termination hereof in accordance with Article VII or the Effective Time, the Company shall not, nor and shall it not permit any of its Subsidiaries to, without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld, conditioned or delayed): (ai) Declareamend or otherwise change its certificate of incorporation or bylaws or other applicable organizational documents, set aside or pay any dividends on or make any other distributions (whether in cashadjust, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue other equity interest or authorize enter into a plan of consolidation, merger, share exchange, share acquisition, reorganization or complete or partial liquidation with any person; (ii) issue, grant, sell, dispose of, redeem or repurchase any equity securities or equity-based award in the Company or any of its Subsidiaries, or securities convertible into, or exchangeable or exercisable for, any such equity securities or awards, or any rights of any kind to acquire any such equity securities or such convertible or exchangeable securities, other than (A) the issuance of any other securities in respect ofOrdinary Shares upon the exercise of Company Options or the settlement of Company RSU Awards, in lieu of or in substitution for any capital stock, other than any such transaction (B) by a wholly-owned Subsidiary of it that remains the Company to the Company or another wholly-owned Subsidiary of the Company, or (C) in connection with Tax withholdings and exercise price settlements upon the exercise of Company Options. (iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of Ordinary Shares or other shares of capital stock or equity interests (except for any dividend or distribution by a wholly-owned Subsidiary of it the Company to the Company or another wholly-owned Subsidiary of the Company); (iv) sell, license, transfer, mortgage, encumber or otherwise dispose of (whether by merger, consolidation or sale of stock or assets or otherwise), abandon or fail to maintain any assets, rights or businesses of the Company or its Subsidiaries (including any capital stock of any Subsidiaries), in each case other than dispositions not exceeding $1,000,000 in the aggregate; (v) acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any assets, in each case other than (A) purchases of equipment and other assets in the ordinary course of business or (B) acquisitions not exceeding $1,000,000 in the aggregate; (vi) (A) incur, assume, refinance or guarantee any indebtedness for borrowed money (other than indebtedness among the Company and/or wholly-owned Subsidiaries) or issue any debt securities, or assume or guarantee any indebtedness for borrowed money of any person, except for borrowings in the ordinary course of business in an amount not to exceed $2,500,000 in the aggregate outstanding at one time, or (B) enter into any swap or hedging transaction or other derivative agreement; (vii) make any loans, advances or capital contributions to, or investments in, any other person (other than to any wholly-owned Subsidiary of the Company) in excess of $1,000,000 in the aggregate; (i) enter into any Contract involving or providing for the settlement (or proposed settlement) of, or other arrangements with respect to, any Claims or threatened Claim (or series of related Claims) (A) with a Governmental Entity, (B) that involves payments after consummation the date hereof, in the aggregate, in excess of such transaction $500,000 or (C) that materially restricts or imposes material obligations on the Company and its Subsidiaries; provided that in no event shall the Company settle (or permit to be settled) any suit or proceeding described in Section 5.11 except in accordance with the provisions thereof or (ii) commence any Claim, except with respect to (A) Claims involving amounts less than $500,000 individually or $1,000,000 in the aggregate, or (B) in connection with a breach of this Agreement or any other agreements contemplated hereby; (ix) enter into, amend in any material respect, waive compliance with any material rights with respect to, or cancel or terminate any Material Contract or Contract which if entered into prior to the date hereof would be a Material Contract, in each case other than renewals of Material Contracts in the ordinary course of business with terms and conditions of the renewed Material Contract substantially similar to the existing Material Contract being so replaced; (x) except for the expenditures contemplated by and consistent with the capital expenditure budget set forth in Section 5.1(b)(x) of the Company Disclosure Schedule (the “Capital Expenditure Budget”), make, or commit to make, or otherwise authorize any capital expenditures in excess of an amount equal to, in the aggregate, 20% of the total Capital Expenditure Budget for the relevant period; (xi) except as required by Law or the terms of any Plan in effect as of the date hereof or as disclosed in Section 5.1(b)(xi) of the Company Disclosure Schedule: (i) increase the compensation or benefits of any Company Employee other than increases made in the ordinary course of business, consistent with past practice for employees with total annual cash compensation of less than $150,000; provided(ii) grant or pay any performance bonus, howeverchange-in-control, that nothing herein shall be construed as prohibiting retention bonus, severance or termination pay to any Company Employee; (iii) establish, adopt, enter into, amend, terminate or grant any waiver or consent under any Plan; (iv) grant any equity or equity-based awards; (v) hire, or terminate the Company from granting Company Options that are Ordinary Course Grants (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectlyemployment of, any shares of its capital stock or the capital stock of its SubsidiariesCompany Employee, other than repurchases for cause, except for individuals who have a total annual cash compensation target (including (x) base salary or wages and (y) bonus and commissions) of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants or other rights of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted less than $100,000 in the ordinary course of business consistent with past practice practice; (vi) except with respect to Company Options and on Ordinary Course Terms Company RSU Awards, take any action to accelerate the vesting or time of payment of any compensation or benefit under or waive any performance conditions with respect to any Plan or awards made thereunder; (as defined belowvii) loan or advance any money or other property to new Company employees under any present or former director, officer or employee of the Company Option Plans outstanding on or its Subsidiaries; (viii) increase or accelerate the date hereoffunding obligation or contribution rate of any Plan; (ix) approve, enter into, adopt or establish any obligation to gross-up, indemnify or otherwise reimburse any Company Employee for any Tax incurred by such Company Employee, including under Section 409A or 4999 of the Code; or (Cx) grants grant any Company Employee the right to receive an additional payment (including any tax gross up or other payment (including any tax gross up or other payment) as a result of stock options to purchase Company Common Stock granted to existing Company employees the imposition of any Taxes; (xii) announce, implement or effect any reduction in force, layoff or other than to directors and officers)program resulting in the termination of employees, in each case, that would trigger the WARN Act; (xiii) make any changes in its methods, practices or policies of financial accounting, except as may be required under Law, rule, regulation or U.S. GAAP, in each case as approved in writing by the Company’s independent public accountants; (xiv) make or change any Tax election, file any amended Tax Returns, settle or compromise any material Tax liability of the Company Option Plans outstanding on or any of its Subsidiaries, agree to an extension or waiver of the date hereof in statute of limitations with respect to the assessment or determination of Taxes of the Company or any of its Subsidiaries, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund, incur any material liability for Taxes outside the ordinary course of business consistent or make any material changes in its methods, practices or policies of Tax accounting; (xv) fail to use its reasonable best efforts to maintain in full force and effect the existing insurance policies of the Company and its Subsidiaries or to replace such insurance policies with past practice comparable insurance policies covering the Company, its Subsidiaries and their respective properties, assets and businesses; (xvi) apply for or accept (x) any funding from any Governmental Entity, which is extended to support the Company’s research and development operations, or (y) any material funding from any other Governmental Entity; (xvii) enter into, engage in connection or amend any transaction or Contract with annual compensation reviews any Company Related Party; (xviii) terminate or ordinary course promotions materially default under any Lease; (xix) transfer, convey or assign any Intellectual Property that is material to the conduct of the business of the Company and its Subsidiaries, taken as a whole; (xx) make any material changes to any Privacy Policies or make any material changes in each case on Ordinary Termsthe operation or protection of any material IT Assets; or (xxi) agree to, or make any commitment to, take any of the actions prohibited by this Section 5.1(b). (c) Prior to Closing, the Company shall, and (D) subject shall cause each of its Subsidiaries to Section 3.7(b), issuances use their commercially reasonable efforts to cause the cash of Company Common Stock pursuant to the Company ESPPand its Subsidiaries to be available for use by or distribution to Parent promptly following the Closing; provided, however, that the stock option grants pursuant to clause (Cnothing contained in this Section 5.1(c) shall not exceed grants require the Company or any of options its Subsidiaries to acquire 25,000 shares take any action, including any corporate action by the Company or any of Company Common Stock to all such individuals in its Subsidiaries, the aggregate (execution of any agreement or the grants describedmaking of any filings with any Governmental Entity, and subject prior to the limitations, Effective Time if the Company determines in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options good faith that such action could reasonably be expected to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than result in Tax obligations or other costs or expense to the current market price at the time Company or any of grant of a share of Company Common Stock and its Subsidiaries, (ii) a vesting schedule no more favorable than one-quarter adversely affect the Company's or any of its Subsidiaries’ Tax or financial reporting positions, (1/4iii) on adversely affect the one-year anniversary ability of the date of grantCompany and its Subsidiaries to operate their respective businesses in the ordinary course, and one-forty-eighth (1/48) on each monthly anniversary consistent with past practice, including by impairing the ability of the date Company and its Subsidiaries to meet their respective working capital requirements, or (iv) be prohibited by Law. (d) Nothing contained in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of grant thereafter;this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.

Conduct of Business Prior to the Effective Time. (a) Except as expressly permitted hereincontemplated by this Agreement, set forth in Section 6.1 of during the Pre-Closing Period the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall, shall operate and cause its Subsidiaries to, conduct carry on its business in all material respects only in the ordinary course consistent with past business practices and substantially as currently operated as of its business the date hereof. Consistent with the foregoing, the Company shall use commercially reasonable efforts consistent with past practice andto keep and maintain its assets and properties in good operating condition and repair (subject to normal wear and tear) and to preserve, to maintain the extent consistent therewithvalue of, use its reasonable best efforts renew, extend and keep in full force and effect all Intellectual Property of the Company, and to maintain and preserve substantially intact its business organization intact and to preserve the goodwill of those the material Company Suppliers, contractors, licensors, employees, customers, distributors and others having business relationships relations with it. Without limiting the foregoingCompany (except, and except in each case, with the express prior written approval of Parent). (b) Except as otherwise expressly contemplated required by this Agreement or as set forth in Section 6.1 with the express prior written approval of Parent, during the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, Pre-Closing Period the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: (ai) Declare(A) declare, set aside or pay any dividends on on, or make any other actual, constructive or deemed distributions (whether in cashrespect of, any of its capital stock, equity securities or propertyotherwise make any payments to its Stockholders in their capacity as such, (B) in respect of any capital stock or split, combine or reclassify any of its capital stock or issue issue, sell or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock (other than any issuances of its securities upon the exercise of any Company Options outstanding on the date hereof or upon the conversion of any outstanding convertible securities that are convertible into such securities) or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof; (ii) make any change in its Subsidiariesline of business; (iii) amend the Company Charter, the Company Bylaws or the Company Voting Agreement; (iv) issue, grant, sell, redeem, repurchase or encumber any Shares or other securities of the Company, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants from terminating employees or other rights service providers pursuant to Repurchase Options applicable to those shares; issue, grant, sell, redeem, repurchase or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any Shares or other securities of the Company existing on or make any other changes in the date hereof in accordance with their present terms equity capital structure of the Company; (v) make any capital expenditure or granted pursuant to clauses (B) enter into any Contract or (C) hereofcommitment therefor, (B) grants of stock options to purchase Company Common Stock granted other than capital expenditures or commitments for capital expenditures in the ordinary course of business consistent with past practice and business practices in an aggregate amount not to exceed [*]; (vi) other than in the ordinary course of business consistent with the Company’s past business practices, (A) enter into any Contract or other instrument which would have been required to be set forth on Ordinary Course Terms (as defined belowSchedule 5.9(a), Schedule 5.10, Schedule 5.11(c), Schedule 5.14 or Schedule 5.17(a) to new Company employees under the Company Option Plans outstanding if in effect on the date hereof, (B) enter into any Contract which requires the giving of notice to, or the consent or approval of, any third party to consummate the transactions contemplated by this Agreement, (C) make any modification to any existing Company Agreement or to any Governmental Permit, (D) waive, release or assign any rights or claims under, fail to take a required action under, or commit any default under, any Company Agreement, or (E) enter into any contract that grants any license, covenant not to xxx or similar interest or benefit, exclusive or otherwise, in, to or under, or otherwise transfer, assign, or encumber, any Owned Intellectual Property or Licensed Intellectual Property or any right to any Product; (vii) enter into any Contract for the purchase, lease (as lessee) or other occupancy of stock options real property or exercise any option to purchase Company Common Stock granted real property or any option to existing Company employees extend a lease listed on Schedule 5.9(a); (viii) sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the assets or properties of the Company, other than to directors inventory and officers), under the Company Option Plans outstanding on the date hereof minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business consistent with past practice business practices and other than Permitted Encumbrances; (ix) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in connection with annual compensation reviews or the ordinary course promotions and of business consistent with past business practices; (x) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligation (as defined in each case on Ordinary TermsStatement of Financial Accounting Standards No. 13); (xi) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected, and other than in the ordinary course of business consistent with past business practices; (Dxii) subject delay or accelerate payment of any account payable or other liability beyond or in advance of its due date, or the date when such liability would have been paid or the dates when the same would have been collected, other than in the ordinary course of business consistent with past business practices; (xiii) allow the levels of raw materials, supplies or work in process of the Company to Section 3.7(b)vary in any material respect from the levels customarily maintained by the Company unless the maintenance of such levels such materials, issuances supplies or work in process are not necessary for the Company to conduct its business substantially as conducted as of Company Common Stock pursuant the date hereof; (xiv) make, or agree to make, any payment of cash or distribution of assets to the Stockholders; (xv) increase (other than as required by existing Contracts listed on Schedule 5.17(k)) the compensation payable to any officer, manager, employee, non-employee member of the board of directors or consultant of the Company, or amend (other than as required by applicable Law) any existing, or establish any new, profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, severance, medical, hospital, disability, welfare or other benefit plans or arrangements for officers, managers, employees, non-employee members of the board of directors or consultants of the Company, enter into any new Contract with any officer, manager, employee non-employee member of the board of directors or consultant of the Company ESPP; providedwith respect to such compensation or benefits, however, that the stock option grants pursuant or grant any new Company Options or issue any new Unvested Share Awards to clause any such person; (Cxvi) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals make any change in the aggregate accounting principles and practices used by the Company applied in the preparation of the financial statements contained on Schedule 5.4, except as required by U.S. GAAP; (the grants describedxvii) prepare or file any Tax Return inconsistent with past business practices or, and subject 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, except as otherwise required by Law; (xviii) fail to the limitations(A) prosecute or maintain applications for registration of any Owned Intellectual Property or any Exclusively Licensed Intellectual Property, in clauses or (B) enforce any Exclusively Licensed Intellectual Property, for which the Company has the contractual right to prosecute and maintain applications or to enforce or any Owned Intellectual Property; (C)xix) (A) make any submissions to, or correspond with, the “Ordinary Course Grants”FDA relating to the conduct or design of clinical trials sponsored or proposed by the Company or involving any Products, including those related to new trials or changes or amendments to protocols or clinical trial documents for an existing trial, and clinical holds or regarding any other matter, or (B) make any submissions to, or correspond with, any Institutional Review Board regarding a clinical trial sponsored or proposed by the Company or involving any Products, including those related to new trials or changes or amendments to the protocol or clinical trial documents for purposes an existing trial, and clinical holds, except in each case, if obtaining prior written approval of Parent is not reasonably practicable due to requirements of Law; (xx) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by purchasing all or a substantial portion of the capital stock of, or by any other manner, any business or any other Person or any division thereof, or (B) any assets, other than in the ordinary course of business, that are material to the Company; (xxi) pay, discharge, settle or satisfy any claims, liabilities or obligations, other than in the ordinary course of business; or (xxii) enter into any Contract or commitment to take any action prohibited by this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;8.6(b).

Conduct of Business Prior to the Effective Time. Except as expressly permitted herein, set forth in Section 6.1 of the Company Schedule of Exceptions, or required by Law, MOC agrees that from the Execution Date through date hereof until the Effective Time (or, insofar as such matters pertain to Souter or the termination of this Agreement pursuant to its termsSouter Subsidiaries, until the Company shallSoxxxx Effective Xxxx), and cause its Subsidiaries to, conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to maintain and preserve substantially intact its business organization and the goodwill of those having business relationships with it. Without limiting the foregoing, and except as otherwise expressly contemplated required or xxxxxxplated by this Agreement or as set forth in Section 6.1 of the Company Schedule of Exceptionsotherwise consented to or approved by OSG, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant such consent not to its terms, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parentbe unreasonably withheld: (ai) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect The business of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein MOC Companies shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants or other rights of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted operated in the ordinary course of business consistent with past present practices. (ii) The MOC Companies shall not enter into any contract relating to employment, compensation or benefits or enter into or amend any employee benefit plan. (iii) The MOC Companies shall maintain in effect all insurance policies with respect to their business and properties of the type and in amounts consistent with present practice. (iv) The MOC Companies shall maintain and preserve the Assets (and the assets of the MOC Subsidiaries) consistent with prior practice and on Ordinary Course Terms shall not dispose of or subject to any Liens any Assets (as defined belowor assets of the MOC Subsidiaries) to new Company employees under the Company Option Plans outstanding on the date hereof, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews business, shall not dispose of or ordinary course promotions and in each case on Ordinary Termssubject to any Liens any MOC Subsidiary Shares, and shall not permit the issuance of nor any agreement to issue any shares of capital stock of any MOC Subsidiary. (Dv) subject to Section 3.7(b), issuances The MOC Companies shall comply in all material respects with provisions of Company Common Stock Law and the MOC Contracts. (vi) The MOC Companies shall not knowingly take any action which would make materially untrue any of the representations or warranties of MOC pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;Agreement.

Conduct of Business Prior to the Effective Time. Except Section 7.1 Conduct of Business by the Company. Following the date hereof and prior to the Closing, except as expressly permitted herein, set forth in Section 6.1 of the Company Schedule of Exceptions, or required otherwise contemplated by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant or unless Buyer shall otherwise consent in writing: (a) subject to its termsthe limitations contained in or transactions contemplated by this Agreement (including, but not limited to, the Taurus Disposition), the Company shall, and shall cause its Subsidiaries to, conduct its business in all material respects carry on their respective operations in the usual and ordinary course of its business consistent with past practice andpractice, to the extent consistent therewith, and shall use its reasonable best efforts efforts, and shall cause each of its Subsidiaries to maintain and use its reasonable efforts, to preserve substantially intact its present business organization organization, keep available the services of its present officers and the goodwill of those employees, maintain and keep its assets in good repair and condition in accordance with past practice, ordinary wear and tear and damage due to casualty excepted, and preserve its relationships with customers, suppliers and others having business relationships dealings with it. Without limiting it to the foregoing, end that its goodwill and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of on-going businesses shall be materially unimpaired at the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, Closing; (b) the Company shall not, nor shall it permit propose to, except as required by this Agreement, (i) sell or pledge or agree to sell or pledge any capital stock owned by it in any of its Subsidiaries toSubsidiaries, without the prior written consent (ii) amend its Certificate of Parent: Incorporation or Bylaws, (aiii) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any its outstanding 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 the capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or (iv) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (c) the Company shall not, nor shall it permit any of its Subsidiaries to, (i) except as required or contemplated by this Agreement, issue, deliver or sell or agree to issue, deliver or sell any additional shares of, or stock appreciation rights or rights of any kind to acquire any shares of, its capital stock of any class, any Company Voting Debt, or any option, rights or warrants to acquire, or securities convertible into, shares of capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon pursuant to the exercise of Company Options, Company Warrants or other rights of the Company existing on the date hereof Outstanding Options and except for a Taurus Disposition made in accordance with their present terms or granted pursuant to clauses (B) or (C) Section 4.1 hereof, (Bii) grants amend in any respect existing agreements evidencing the Outstanding Options (including, without limitation, the exercise or strike prices thereof) except to permit the acceleration of stock options the vesting or exercisability of the Outstanding Options, (iii) acquire or lease or agree to purchase Company Common Stock granted acquire or lease any capital asset or assets, or make or commit to make any other capital expenditures (including in such calculation the proceeds of any sale/leaseback transactions) in excess of $150,000, (iv) dispose or agree to dispose of capital assets or any other assets other than in the ordinary course, with a value in the aggregate in excess of $100,000, (v) (A) create, incur, assume or permit additional indebtedness (including obligations in respect of capital leases), other than periodic drawdowns under the Company's credit facilities existing as of the date hereof, provided that (1) such drawdowns are in the ordinary course of business consistent with past practice practice, (2) the amount available under such facilities as of the date hereof is not increased and on Ordinary Course Terms (3) the aggregate principal amount of indebtedness outstanding thereunder does not exceed $70,000,000, (B) assume, guarantee, endorse or otherwise become liable or responsible for the obligations of any other person (other than a Subsidiary of the Company, or as defined belowto a Subsidiary of the Company, another Subsidiary of the Company) to new Company employees under in an amount in excess of $25,000 (excluding suspense account obligations assumed in connection with acquisitions by the Company Option Plans outstanding on whereby the Company also receives the funds held in suspense or an adjustment to the purchase price is made in an equal amount), (C) encumber or grant a security interest in any Material Company Asset other than for the Company's credit facilities existing as of the date hereof, (CD) grants make any loans or advances to any other person (excluding intercompany transactions), enter into any agreement or instrument relating to the borrowing of stock options to purchase Company Common Stock granted to existing Company employees (money or the extension of credit or enter into any other transaction other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice practices, either individually or in connection the aggregate, in excess of $25,000, or (E) pay or declare any dividend or other distribution with annual compensation reviews respect to any shares of its capital stock or any security exercisable for or convertible into any shares of its capital stock, (vi) acquire or agree to acquire oil or gas properties or other material assets, or acquire or agree to acquire by merging or consolidating with, or by purchasing the assets of or a substantial equity interest in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, for an aggregate purchase price in excess of $150,000, (vii) enter into or renew any agreements, contracts or other commitments (A) exceeding $100,000 in cost of value that are not expected to be fully performed within 30 days after the Closing (other than (1) oil and gas marketing agreements (excluding hedging arrangements) entered into in the ordinary course promotions and of business consistent with past practices or (2) commitments for expenditures reflected in each case on Ordinary Termsthe LKA Reserve Report as expenditures planned for 1997) or (B) not in the ordinary course of business consistent with past practice, and or (Dviii) subject adopt, enter into, amend or terminate any contract, agreement, commitment or arrangement with respect to Section 3.7(b), issuances any of Company Common Stock pursuant to the foregoing; (d) the Company ESPPshall not, nor shall it permit any of its Subsidiaries to, except as required to comply with applicable law and other than acceleration of vesting permitted by this Agreement, (i) adopt, enter into, terminate or amend any bonus, profit sharing, compensation, severance, termination, stock option, pension, retirement, deferred compensation, employment or other Plan, agreement, trust, fund or other arrangement for the benefit or welfare of any current or former director, officer or employee, (ii) increase in any manner the compensation or fringe benefits of any director, executive officer or employee; provided, however, that the stock option grants pursuant Company shall be permitted to clause award normal salary increases to employees (Cother than executive officers) shall not exceed grants of options to acquire 25,000 shares of the Company Common Stock to all such individuals in the aggregate ordinary course of business that are consistent with past practice (including, without limitation, in connection with any promotion of such employee) and that, in the grants describedaggregate, do not result in a material increase in compensation expense to the Company and its Subsidiaries relative to the level in effect prior to such increase), unless consented to by Buyer, (iii) pay any benefit not provided under any existing plan or arrangement, (iv) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Plan (including, without limitation, the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Plans or agreements or awards made thereunder), (v) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Plan, other than in the ordinary course of business consistent with past practice, or (vi) adopt, enter into, amend or terminate any contract, agreement, commitment or arrangement to do any of the foregoing; (e) the Company shall not, nor shall it permit its Subsidiaries to, make any change in its accounting policies or procedures, except as required under GAAP; (f) the Company shall use its reasonable efforts to refrain from taking, and subject shall use its reasonable efforts to cause its Subsidiaries to refrain from taking, any action that would, or reasonably might be expected to, result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect as of the Closing, or in any of the conditions to the limitationstransactions contemplated by this Agreement set forth in -33- 39 Article IX not being satisfied, or (unless such action is required by applicable law) that would adversely affect the ability of the Company to obtain any of the regulatory approvals required to consummate the transactions contemplated by this Agreement; (g) the Company shall maintain in clauses full force and effect all of its policies of insurance (Bexcluding any insurance policies under which Taurus is the only named insured) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary in existence as of the date hereof or insurance comparable to the coverage afforded by such policies; and (h) the Company shall not enter into any natural gas or other future or options trading or be a party to any price swaps, hedgxx, xxtures or similar instruments without first obtaining the consent of grantBuyer, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;which consent shall not be unreasonably withheld.

Conduct of Business Prior to the Effective Time. (a) Except as expressly permitted herein, set forth in Section 6.1 of the Company Schedule of Exceptions, or required contemplated by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its termsAgreement, the Company shall, shall operate and cause its Subsidiaries to, conduct carry on its business in all material respects only in the ordinary course of its consistent with past business practices and substantially as currently operated. Consistent with the foregoing, the Company shall use commercially reasonable efforts consistent with past practice andto keep and maintain its assets and properties in good operating condition and repair (subject to normal wear and tear) and to preserve, to maintain the extent consistent therewithvalue of, use its reasonable best efforts renew, extend and keep in full force and effect all Intellectual Property of the Company, and to maintain and preserve substantially intact its business organization intact and to preserve the goodwill of those the material Company Suppliers, contractors, licensors, employees, customers, distributors and others having business relationships relations with it. Without limiting the foregoingCompany (except, and except in each case, with the express prior written approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed). (b) Except as otherwise expressly contemplated required by this Agreement or as Agreement, set forth in Section 6.1 of the Company on Schedule of Exceptions8.6, or required by Lawwith the express prior written approval of Parent, from the Execution Date through the Effective Time which consent shall not be unreasonably withheld, conditioned or the termination of this Agreement pursuant to its termsdelayed, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: (ai) Declare(A) declare, set aside or pay any dividends on on, or make any other actual, constructive or deemed distributions (whether in cashrespect of, any of its capital stock, equity securities or propertyotherwise make any payments to its Stockholders in their capacity as such, (B) in respect of any capital stock or split, combine or reclassify any of its capital stock or issue issue, sell or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or the capital stock (other than any issuances of its Subsidiaries, other than repurchases securities upon the exercise of unvested shares at cost any Company Stock Options or for de minimis consideration in connection with either Company Warrants outstanding on the termination date of the employment relationship with any employee this Agreement to purchase such securities or upon the resignation conversion of any director outstanding convertible securities that are convertible into such securities) or consultant(C) purchase, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge redeem or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock of the Company or any other securities convertible into shares thereof; (ii) make any change in its line of business; (iii) amend the Company Charter, the Company Bylaws or the Company Stockholders Agreement; (iv) issue, grant, sell, redeem, repurchase or encumber any Shares or other securities of the Company; issue, grant, sell, redeem, repurchase or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, sale, pledge or other disposition of any Shares or other securities of the Company or make any other changes in the equity capital stock, structure of the Company; (v) make any capital expenditure or enter into any Contract or commitment therefor, other agreements than capital expenditures or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants or other rights of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted for capital expenditures in the ordinary course of business consistent with past practice and business practices in an aggregate amount not to exceed $[*]; (vi) other than in the ordinary course of business consistent with the Company’s past business practices, (A) enter into any Contract or other instrument which would have been required to be set forth on Ordinary Course Terms (as defined belowSchedule 5.9(a), Schedule 5.10, 5.11(c), 5.14 or 5.17(a) to new Company employees under the Company Option Plans outstanding if in effect on the date hereof, (B) enter into any Contract which requires the giving of notice to, or the consent or approval of, any third party to consummate the transactions contemplated by this Agreement, (C) grants make any modification to any existing Company Agreement or to any Governmental Permit or (D) waive, release or assign any rights or claims under, fail to take a required action under, or commit any default under, any Company Agreement; (vii) enter into any Contract for the purchase, lease (as lessee) or other occupancy of stock options real property or exercise any option to purchase Company Common Stock granted real property or any option to existing Company employees extend a lease listed on Schedule 5.9(a); (viii) sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the assets or properties of the Company, other than to directors inventory and officers), under the Company Option Plans outstanding on the date hereof minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business consistent with past practice business practices and other than Permitted Encumbrances; (ix) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in connection with annual compensation reviews or the ordinary course promotions of business consistent with past business practices; (x) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligation (as defined in Statement of Financial Accounting Standards No. 13); (xi) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected, other than in the ordinary course of business consistent with past business practices; (xii) delay or accelerate payment of any account payable or other liability beyond or in advance of its due date, or the date when such liability would have been paid or the dates when the same would have been collected, other than in the ordinary course of business consistent with past business practices; (xiii) allow the levels of raw materials, supplies or work in process of the Company to vary in any material respect from the levels customarily maintained by the Company unless the maintenance of such levels such materials, supplies or work in process are not necessary for the Company to conduct its business substantially as currently conducted; (xiv) make, or agree to make, any payment of cash or distribution of assets to the Stockholders; (xv) alter (other than as required by existing Contracts listed on Schedule 5.17(k)) the compensation payable to any officer, manager, non-employee member of the board of directors or consultant of the Company, or any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other benefits made available to officers, managers, non-employee members of the board of directors or consultants of the Company, or enter into any new Contract with any officer, manager, non-employee member of the board of directors or consultant of the Company with respect to such compensation or benefits; (xvi) with respect to employees other than officers, managers or consultants, (A) alter the compensation of any employees of the Company, except as required by existing Contracts listed on Schedule 5.17(k), (B) alter any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other benefits made available to such employees of the Company, except as required by existing Contracts listed on Schedule 5.17(k), or (C) enter into a new Contract with any employee of the Company with respect to such compensation or benefits; (xvii) make any change in the accounting principles and practices used by the Company applied in each case the preparation of the financial statements contained on Ordinary TermsSchedule 5.4, except as required by U.S. GAAP; (xviii) prepare or file any Tax Return inconsistent with past business practices 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, except as otherwise required by Requirements of Law; (xix) fail to (A) maintain any Owned Intellectual Property or any Licensed Intellectual Property, or (B) enforce any Licensed Intellectual Property for which the Company has the contractual right to enforce or any Owned Intellectual Property; (xx) (A) make any submissions to, or correspond with, the FDA relating to the conduct or design of clinical trials sponsored or proposed by the Company or involving any Products, including those related to new trials or changes or amendments to protocols or clinical trial documents for an existing trial, and clinical holds or regarding any other matter, or (DB) subject make any submissions to, or correspond with, any Institutional Review Board regarding a clinical trial sponsored or proposed by the Company or involving any Products, including those related to new trials or changes or amendments to the protocol or clinical trial documents for an existing trial, and clinical holds; (xxi) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by purchasing all or a substantial portion of the capital stock of, or by any other manner, any business or any other Person or any division thereof, or (B) any assets, other than in the ordinary course of business, that are material to the Company; (xxii) pay, discharge, settle or satisfy any claims, liabilities or obligations, other than in the ordinary course of business; or (xxiii) enter into any Contract or commitment to take any action prohibited by this Section 8.6(b). (c) Subject to Section 3.7(b)2.3 and to the deduction of all applicable withholding taxes pursuant to Section 3.7, issuances prior to the Closing Date, the Company shall pay, or cause to be paid, the Aggregate Employee Bonus Amount (if any) of Company Common Stock pursuant up to $[*] by wire transfer of immediately available funds to the Company ESPP; provided, however, that the stock option grants pursuant to clause (Cemployees set forth on Schedule 8.6(c) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals and in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (Ccorresponding amounts calculated as set forth on Schedule 8.6(c), the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;.

Conduct of Business Prior to the Effective Time. Except as expressly permitted herein, set forth in Section 6.1 8.1 Conduct of Business by the Company Schedule of Exceptions, or required by Law, from Company. Following the Execution Date through date ---------------------------------- hereof and prior to the Effective Time or the termination of Time, except as otherwise contemplated by this Agreement pursuant or unless Sub shall otherwise consent in writing: (a) subject to its termsthe limitations contained in or transactions contemplated by (including, but not limited to, the Taurus Disposition) this Agreement, the Company shall, and shall cause its Subsidiaries to, conduct its business in all material respects carry on their respective operations in the usual and ordinary course of its business consistent with past practice andpractice, to the extent consistent therewith, and shall use its reasonable best efforts efforts, and shall cause each of its Subsidiaries to maintain and use its reasonable best efforts, to preserve substantially intact its present business organization organization, keep available the services of its present officers and employees, maintain and keep its material assets in as good repair and condition as of the goodwill of those date hereof, ordinary wear and tear and damage due to casualty excepted, and preserve its relationships with customers, suppliers and others having business relationships dealings with it. Without limiting it to the foregoing, end that its goodwill and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of the Company Schedule of Exceptions, or required by Law, from the Execution Date through on-going businesses shall be materially unimpaired at the Effective Time or the termination of this Agreement pursuant to its terms, Time; (b) the Company shall not, nor shall it permit propose to, except as required by this Agreement, (i) sell or pledge or agree to sell or pledge any capital stock owned by it in any of its Subsidiaries toSubsidiaries, without the prior written consent (ii) amend its Certificate of Parent: Incorporation or By-laws, (aiii) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any its outstanding 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 the capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or (iv) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (c) the Company shall not, nor shall it permit any of its Subsidiaries to, (i) except as required or contemplated by this Agreement, issue, deliver or sell or agree to issue, deliver or sell any additional shares of, or stock appreciation rights or rights of any kind to acquire any shares of, its capital stock of any class, any Company Voting Debt, or any option, rights or warrants to acquire, or securities convertible into, shares of capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon pursuant to the exercise of Company Optionsoptions granted pursuant to the Stock Option Plans or Outstanding Warrants, Company (ii) amend in any respect existing agreements evidencing the options granted pursuant to the Stock Option Plans or Outstanding Warrants (including, without limitation, the exercise or strike prices thereof) or the Stock Option Plan pursuant to which such options were granted, except to permit the acceleration of the vesting or exercisability of the options granted pursuant to the Stock Option Plans and Outstanding Warrants in connection with the settlement thereof in accordance with Section 3.6, (iii) acquire or lease or agree to acquire or lease any material capital asset or assets, or make any other rights capital expenditures, which exceed the Company's capital expenditure budgets for the fourth quarter of 1995 and the first quarter of 1996 set forth in Schedule 8.1(c) of the Company Disclosure Schedule, in the aggregate for all such assets or other capital expenditures in both quarters, by $2.0 million or more (including in such calculation the proceeds of any sale/leaseback transactions), (iv) dispose or agree to dispose of capital assets or any other assets other than in the ordinary course, with a value in the aggregate in excess of $2.0 million, (v) (A) create, incur, assume or permit additional material indebtedness (including obligations in respect of capital leases), other than periodic drawdowns under the Company's credit facilities existing on as of the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted provided that such drawdowns are in the ordinary course of business consistent with past practice practice, and on Ordinary Course Terms provided further that the amount available under such facilities as of the date hereof is not increased, (B) assume, guarantee, endorse or otherwise become liable or responsible for the obligations of any other person (other than a Subsidiary of the Company, or as defined belowto a Subsidiary, another Subsidiary of the Company) to new Company employees under in an amount in excess of $10,000, (excluding suspense account obligations assumed in connection with acquisitions by the Company Option Plans outstanding on whereby the Company also receives the funds held in suspense or an adjustment to the purchase price is made in an equal amount), (C) encumber or grant a security interest in any Material Company Asset other than for the Company's credit facilities existing as of the date hereof, or (CD) grants make any loans or advances to any other person (excluding intercompany transactions), enter into any agreement or instrument relating to the borrowing of stock options to purchase Company Common Stock granted to existing Company employees (money or the extension of credit or enter into any other material transaction, other than to directors and officers), under the Company Option Plans outstanding on the date hereof in each case in the ordinary course of business consistent with past practice practice, (vi) acquire or agree to acquire oil or gas properties or other assets of a type not covered by Schedule 8.1(c) of the Company Disclosure Schedule, or acquire or agree to acquire by merging or consolidating with, or by purchasing the assets of or a substantial equity interest in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, for an aggregate purchase price in connection with annual compensation reviews excess of $5.0 million, (vii) enter into or renew any material agreements, contracts or other commitments that are not expected to be fully performed within thirty days after the Effective Time excluding oil and gas leases, farmout agreements, gas sales or purchase contracts, joint operating agreements, unit operating agreements and unit agreements entered into in the ordinary course promotions of business, or (viii) adopt, enter into, amend or terminate any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) the Company shall not, nor shall it permit any of its Subsidiaries to, except as required to comply with applicable law and except as provided in each case on Ordinary TermsSection 9.3 hereof and other than acceleration of vesting permitted by this Agreement, and (Di) subject to Section 3.7(badopt, enter into, terminate or amend any bonus, profit sharing, compensation, severance, termination, stock option, pension, retirement, deferred compensation, employment or other Plan, agreement, trust, fund or other arrangement for the benefit or welfare of any current or former director, officer or employee (other than the adoption of any special compensation for the members of the Special Committee), issuances (ii) increase in any manner the compensation or fringe benefits of Company Common Stock pursuant to any director (other than the Company ESPP; adoption of any special compensation for the members of the Special Committee), executive officer or employee (provided, however, that the stock option grants pursuant Company shall be permitted to clause award normal salary increases to employees (Cother than executive officers) of the Company in the ordinary course of business that are consistent with past practice (including, without limitation, in connection with any promotion of such employee) and that, in the aggregate, do not result in a material increase in compensation expense to the Company and its Subsidiaries relative to the level in effect prior to such increase), unless consented to by Sub, which consent shall not exceed grants be unreasonably withheld, (iii) pay any benefit not provided under any existing plan or arrangement, except for payments set forth in Schedule 8.1(d) of options the Company Disclosure Schedule, (iv) grant any awards under the Stock Option Plan or any other bonus, incentive, performance or other compensation plan or arrangement or Plan (including, without limitation, the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Plans or agreements or awards made thereunder), (v) take any action to acquire 25,000 shares fund or in any other way secure the payment of Company Common Stock to all such individuals compensation or benefits under any employee plan, agreement, contract or arrangement or Plan, other than in the aggregate ordinary course of business consistent with past practice, or (vi) adopt, enter into, amend or terminate any contract, agreement, commitment or arrangement to do any of the grants describedforegoing; (e) the Company shall not, nor shall it permit its Subsidiaries to, make any change in its accounting policies or procedures, except as required under GAAP; (f) the Company shall use its reasonable best efforts to refrain from taking, and subject shall use its reasonable best efforts to cause its Subsidiaries to refrain from taking, any action that would, or reasonably might be expected to, result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect as of the Effective Time, or in any of the conditions to the limitationsMerger set forth in Article X not being satisfied, or (unless such action is required by applicable law) that would adversely affect the ability of the Company to obtain any of the regulatory approvals required to consummate the Merger, as contemplated hereby; (g) the Company shall not settle or compromise any claim for dissenters' rights in clauses respect of the Merger; (Bh) the Company shall maintain in full force and (C), effect all of its policies of insurance in existence as of the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options date hereof or insurance comparable to purchase Company Common Stock with the following terms coverage afforded by such policies; and (i) the Company shall not enter into any natural gas or other future or options trading or be a per share exercise party to any price that is no less than swaps, xxxxxx, futures or similar instruments without first obtaining the current market price at the time consent of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grantSub, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;which consent shall not be unreasonably withheld.

Conduct of Business Prior to the Effective Time. (a) Except as expressly permitted herein, set forth in Section 6.1 of the Company Schedule of Exceptions, or required contemplated by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its termsAgreement, the Company shall, shall operate and cause its Subsidiaries to, conduct carry on its business in all material respects only in the ordinary course of and substantially as currently operated. Consistent with the foregoing, the Company shall keep and maintain its business consistent with past practice and, to the extent consistent therewith, assets and properties in good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to maintain and preserve substantially intact its business organization intact and to preserve the goodwill of those the suppliers, contractors, licensors, licensees, employees, customers, distributors and others having business relationships relations with itthe Company (except, in each case, with the express prior written approval of Parent). Without limiting In connection therewith, the foregoingCompany shall not attempt to persuade any employee or agent of the Company to terminate such person’s relationship with the Company. (b) Notwithstanding Section 7.6(a), and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 except with the express prior written approval of the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its termsParent, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: (ai) Declare(A) declare, set aside or pay any dividends on on, or make any other actual, constructive or deemed distributions (whether in cashrespect of, any of its capital stock, equity securities or propertyotherwise make any payments to its Shareholders in their capacity as such other than dividends with respect to the Company Preferred Stock in an aggregate amount of no more than $350,000, (B) in respect of any capital stock or split, combine or reclassify any of its capital stock or issue issue, sell or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, Shares (other than any such transaction by a wholly-owned Subsidiary issuances of it that remains a wholly-owned Subsidiary its securities upon the conversion of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the any outstanding Company from granting Company Options that are Ordinary Course Grants Preferred Stock) or (as defined below); (bC) Purchasepurchase, redeem or otherwise acquire, directly acquire any Shares or indirectly, any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination securities of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereofCompany; (cii) Issueexcept as set forth in clause (i) above, issue, deliver, sell, authorizepledge, pledge dispose of or otherwise encumber any shares of capital stock, Shares or subscriptions, other securities (including any rights, warrants or options to acquire any shares Shares or other securities); (iii) make any material change in its business or operations; (iv) amend the Company Charter or the Company’s Bylaws; (v) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of capital stock the assets of or equity in, or by any other manner, any business or any securities convertible into shares corporation, partnership, limited liability company, association or other business organization or division thereof; (vi) alter through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure; (vii) make or incur any capital expenditure or expenditures which, individually, is in excess of capital stock$10,000 or, or in the aggregate, are in excess of $20,000; (viii) enter into other agreements or commitments obligating it modify in any material respect any contract, agreement, undertaking, obligation or commitment that would have been required to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants or other rights of the Company existing be set forth on Schedule 5.14 if in effect on the date hereof in accordance with their present terms or granted pursuant enter into any contract that requires the consent or approval of any third Person to clauses consummate the transactions contemplated by this Agreement or make any modification to any existing Company Agreement or to any Governmental Permits; (Bix) enter into any contract for the purchase, lease (as lessee) or (C) hereof, (B) grants other occupancy of stock options real property or exercise any option to purchase Company Common Stock granted real property or any option to extend a lease listed on Schedule 5.9; (x) sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the assets or properties of the Company, other than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business consistent with past practice and on Ordinary Course Terms other than Permitted Encumbrances; (as defined belowxi) cancel any debts owed to new Company employees under or claims held by the Company Option Plans outstanding on (including the date hereof, (Csettlement of any claims or litigation) grants of stock options to purchase or waived any other rights held by the Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice practice; (xii) create, incur or assume, or agree to create, incur or assume, any indebtedness for borrowed money or enter into, as lessee, any capitalized lease obligation (as defined in connection with annual compensation reviews Statement of Financial Accounting Standards No. 13); (xiii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course promotions of business consistent with past practice; (xiv) delay or accelerate payment of any account payable or other liability of the Company beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business consistent with past practice; (xv) allow the levels of raw materials, supplies, work-in-process, finished goods or other materials included in the inventory of the Company to vary in any material respect from the levels customarily maintained by the Company; (xvi) enter into any transaction with any Affiliate; (xvii) enter into, adopt or amend any bonus, profit-sharing, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare, severance or other employee benefit plan with respect to employees of the Company, other than any such amendment to an employee benefit plan that is made to maintain the qualified status of such plan or its continued compliance with applicable law; (xviii) alter the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices; (xix) make any change in each case the accounting principles and practices used by the Company from those applied in the preparation of the financial statements referred to on Ordinary TermsSchedule 5.4 except as required by generally accepted accounting principles; (xx) prepare or file any Tax Return inconsistent with past practice or, and 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 (D) subject including positions, elections or methods which would have the effect of deferring income to Section 3.7(b), issuances of Company Common Stock pursuant periods after the Closing Date or accelerating deductions to periods prior to the Company ESPPClosing Date); provided, however, that the stock option grants pursuant or (xxi) enter into any agreement or commitment to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of take any action prohibited by this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;7.6(b).

Conduct of Business Prior to the Effective Time. Except as expressly permitted herein, set forth in Section 6.1 Conduct of Business of the Company Schedule of Exceptions, or required by Law, from Company. During the Execution Date through period commencing on the date hereof and continuing until the Effective Time or the termination of this Agreement pursuant to its termsTime, the Company shallagrees that the Company, and cause its Subsidiaries to, conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to maintain and preserve substantially intact its business organization and the goodwill of those having business relationships with it. Without limiting the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth agreed to in Section 6.1 of writing by the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: (a) Declare, set aside will carry on its business only in the ordinary course and consistent with past practice; (b) will not declare or pay any dividends dividend on or make any other distributions distribution (whether in cash, stock, equity securities or propertyhowever characterized) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance shares of any other securities in respect of, in lieu of or in substitution for any its capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (bc) Purchase, redeem or otherwise acquirewill not, directly or indirectly, redeem or repurchase, or agree to redeem or repurchase, any shares of its capital stock stock; (d) will not amend its Certificate of Incorporation or By-Laws; (e) will not issue, or agree to issue, any shares of its capital stock, or any options, warrants or other rights to acquire shares of its capital stock, or any securities convertible into or exchangeable for shares of its capital stock; (f) will not combine, split or otherwise reclassify any shares of its capital stock; (g) will not form a Subsidiary; (h) will use its commercially reasonable best efforts to preserve intact its present business organization, keep available the services of its officers and key employees and preserve its relationships with clients and others having business dealings with it to the end that its goodwill and ongoing business shall not be materially impaired at the Effective Time; (i) will not (i) make any capital expenditures individually in excess of $10,000 or in the aggregate in excess of $25,000, (ii) enter into any license, distribution, OEM, reseller, joint venture or other similar agreement, (iii) enter into or terminate any lease of, or purchase or sell, any real property, (iv) enter into any leases of personal property involving individually in excess of $10,000 annually or in the aggregate in excess of $25,000 annually, (v) incur or guarantee any additional indebtedness for borrowed money, (vi) create or permit to become effective any security interest, mortgage, lien, charge or other encumbrance on its properties or assets, or (vii) enter into any agreement to do any of the foregoing; (j) will not adopt or amend any Benefit Plan for the benefit of Employees, or increase the salary or other compensation (including, without limitation, bonuses or severance compensation) payable or to become payable to its Employees or accelerate, amend or change the period of exercisability or the capital vesting schedule of options granted under any stock option plan or agreements except as specifically required by the terms of such plans or agreements, or enter into any agreement to do any of the foregoing; (k) will not accelerate receivables or delay payables; (l) will promptly advise the Parent of the commencement of, or threat of (to the extent that such threat comes to the knowledge of the Company) any claim, action, suit, proceeding or investigation against, relating to or involving the Company or any of its Subsidiariesdirectors, other than repurchases of unvested shares at cost officers, employees, agents or for de minimis consideration consultants in connection with either their businesses or the termination of transactions contemplated hereby that could reasonably be expected to have a Company Material Adverse Effect; (m) will use its commercially reasonable efforts to maintain in full force and effect all insurance policies maintained by the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect Company on the date hereof; (cn) Issuewill not enter into any agreement to dissolve, delivermerge, sellconsolidate or, authorizeexcept in the ordinary course, pledge sell any material assets of the Company, or acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division, or otherwise encumber any shares of capital stock, acquire or subscriptions, rights, warrants or options agree to acquire any shares assets in excess of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: $10,000 in the aggregate; (Ao) issuances of Company Common Stock upon during the exercise of Company Options, Company Warrants or other rights of the Company existing period commencing on the date hereof in accordance with their present terms or granted pursuant and continuing until the Effective Time, the Company will not take any action which would cause the Merger to clauses (B) or (C) hereof, (B) grants of stock options fail to purchase Company Common Stock granted in the ordinary course of business consistent with past practice and on Ordinary Course Terms (qualify as defined below) to new Company employees a reorganization under the Company Option Plans outstanding on the date hereof, (Cprovisions of Section 368(a) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date Code; and (p) will not change the Company's method of grant, accounting and one-forty-eighth (1/48) on each monthly anniversary will not make any Tax elections that would adversely affect Parent or its subsidiaries without the consent of the date of grant thereafter;Parent.

Conduct of Business Prior to the Effective Time. (a) Except (i) as expressly contemplated or permitted hereinby this Agreement, (ii) as required by any applicable Law applicable to the Company or any of its Subsidiaries, (iii) as set forth in on Section 6.1 5.1(a) of the Company Disclosure Schedule or (iv) with the prior written consent of ExceptionsParent (which consent shall not be unreasonably withheld or delayed), or required by Law, during the period from the Execution Date through the Effective Time or the termination date of this Agreement pursuant to its termsthe Effective Time, (A) the Company shall, and shall cause each of its Subsidiaries to, (1) conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, and (2) use its reasonable best efforts to maintain and preserve substantially intact its business organization organization, and the goodwill of those having its rights, authorizations, franchises and other authorizations issued by Governmental Entities, preserve its business relationships with it. Without limiting Authorized Delegates, banks, customers, vendors and others doing business with it and retain the foregoing, services of its officers and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, key employees and (B) the Company shall not, nor and shall it not permit any of its Subsidiaries to, without the prior written consent of Parent: (ai) Declare(A) amend or otherwise change the Company’s certificate of incorporation or bylaws and (B) with respect to Subsidiaries of the Company, set aside amend or pay otherwise change their applicable organizational documents in any dividends on or make any other distributions material respect; (whether in cashii) adjust, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue other equity interest or authorize the issuance enter into a plan of consolidation, merger, share exchange, share acquisition, reorganization or complete or partial liquidation with any other securities in respect of, in lieu of or in substitution for any capital stock, person (other than any such transaction by a wholly-consolidation, merger or reorganization solely among wholly owned Subsidiary Subsidiaries of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined belowCompany); (biii) Purchaseissue, grant, sell, dispose of, redeem or otherwise acquire, directly repurchase any equity securities or indirectly, equity-based award in the Company or any shares of its capital stock or the capital stock of its Subsidiaries, or securities convertible into, or exchangeable or exercisable for, any such equity securities or awards, or any rights of any kind to acquire any such equity securities or such convertible or exchangeable securities, other than repurchases (A) the issuance of unvested shares at cost Shares upon the exercise of Company Options or for de minimis consideration in connection with either the termination conversion of Series D Preferred Stock, (B) upon the expiration of any restrictions on any Company RSU, (C) by a wholly owned Subsidiary of the employment relationship Company to the Company or another wholly owned Subsidiary of the Company or (D) issuances of Company Options and Company RSU to employees and directors in amounts consistent with any employee or upon Section 5.1(a) of the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereofCompany Disclosure Schedule; (civ) Issuedeclare, deliverset aside, sellmake or pay any dividend or other distribution, authorizepayable in cash, pledge or otherwise encumber any shares of capital stock, property or subscriptionsotherwise, rightswith respect to any of Common Stock, warrants Series D Preferred Stock or options to acquire any other shares of capital stock or equity interests (except for any securities convertible into shares dividend or distribution by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company); (v) sell, exclusively license, transfer, mortgage, encumber or otherwise dispose of (whether by merger, consolidation or sale of stock or assets or otherwise), any assets, rights or businesses of the Company or its Subsidiaries (including any capital stockstock of any Subsidiaries), or enter into in each case other agreements or commitments obligating it to issue any such securities or rights, other than: than dispositions (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants or equipment and other rights of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted assets in the ordinary course of business consistent with past practice or (B) dispositions of any assets, rights or businesses or the abandonment or failure to maintain any Registered IP not exceeding $1,000,000 individually or $2,000,000 in the aggregate; (vi) acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any assets, in each case other than (A) purchases of equipment and on Ordinary Course Terms other assets in the ordinary course of business consistent with past practice or (B) acquisitions not exceeding $2,000,000 individually or $5,000,000 in the aggregate; (vii) (A) incur, assume, refinance or guarantee any indebtedness for borrowed money (other than indebtedness among the Company and/or wholly owned Subsidiaries) or issue any debt securities, or assume or guarantee any indebtedness for borrowed money of any person, except for borrowings in the ordinary course of business consistent with past practice under the Company’s revolving credit facility (as defined belowset forth in the Credit Agreement) in an amount not to new Company employees under exceed $5,000,000 outstanding at one time (with the Company Option Plans outstanding permitted to replace, renew or extend such revolving credit facility prior to its expiration on September 28, 2019 on terms no less favorable, taken as a whole (including with respect to repayment and termination of such facility) than those provided in the Credit Agreement in effect as of the date hereofof this Agreement; provided that the Company remains subject to the obligation set forth above to not borrow more than $5,000,000 outstanding at one time under such facility) or (B) enter into any swap or hedging transaction or other derivative agreement (other than a forward contract entered into in the ordinary course of business consistent with past practice); (viii) make any loans, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees advances or capital contributions to, or investments in, any other person (other than to directors and officersany wholly owned Subsidiary of the Company) in excess of $1,000,000 individually or $2,000,000 in the aggregate; (ix) enter into any Contract involving or providing for the settlement of, or other arrangements with respect to, any Claims or threatened Claim (or series of related Claims) (A) with a Governmental Entity (except settlements, or other arrangements, for an immaterial monetary fine), under (B) that materially restricts or imposes material obligations on the Company Option Plans outstanding on or (C) that involves payments by the Company or any of its Subsidiaries after the date hereof in excess of $1,000,000 individually and $2,000,000 in the aggregate (excluding any amounts that may be paid under existing insurance policies), provided that this clause (ix) shall not apply to any settlement of any suit or proceeding described in Section 5.11, which shall be governed by the provisions thereof; (x) except in the ordinary course of business consistent with past practice, enter into, amend in any material respect, waive compliance with any material rights with respect to, or cancel or terminate any Material Contract or Contract which if entered into prior to the date hereof would be a Material Contract (with the Company to use reasonable best efforts to notify Parent promptly thereafter of any such actions (which notification may be provided by email or telephonically to representatives of Parent)); (xi) except for the expenditures contemplated by and consistent with the 2017 and 2018 capital expenditure budgets set forth on Section 5.1(a)(xi) of the Company Disclosure Schedules (the “Capital Expenditure Budget”), make, or commit to make, or otherwise authorize any capital expenditures in excess of $2,000,000 in 2017 or $2,000,000 in 2018; (xii) except as required by the terms of any Plan or employment agreement in effect as of the date hereof or as disclosed in Sections 3.12(a) or 5.1(a)(xii) of the Company Disclosure Schedule: (A) increase the compensation or benefits of any Company Employee, except, in the ordinary course of business consistent with past practice, for (1) increases to the annual rates of base salary or wages of Company Employees in an amount not to exceed 3.5% in the aggregate and (2) employee welfare benefits in the ordinary course of business consistent with past practice as part of the Company’s regular annual enrollment program; (B) grant or pay any cash bonus, change-in-control, retention bonus, severance or termination pay to any Company Employee; (C) establish, adopt, enter into, amend, terminate or grant any waiver or consent under any Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Plan if it were in existence as of the date of this Agreement except for (1) amendments to Plans made in the ordinary course of business consistent with past practice that do not materially increase the expense of maintaining such plan and (2) establishing or adopting Plans in the ordinary course of business consistent with past practice in connection with the Company’s regular annual enrollment program; (D) grant any equity or equity-based awards; (E) hire, or terminate the employment of, any Company Employee, other than for cause, except, in each case, for individuals who have a total annual cash compensation reviews or target of less than $275,000 in the ordinary course promotions and of business consistent with past practice; (F) take any action to accelerate the vesting or time of payment of any compensation or benefit under any Plan or awards made thereunder; (G) loan or advance any money or other property to any present or former director, officer or employee of the Company or its Subsidiaries or (H) increase the funding obligation or contribution rate of any Plan subject to Title IV of ERISA; (xiii) announce, implement or effect any reduction in force, layoff or other program resulting in the termination of employees, in each case, that would trigger the WARN Act; (xiv) make any material changes in its methods, practices or policies of financial accounting, except as may be required under Law, rule, regulation or U.S. GAAP, in each case on Ordinary Termsfollowing consultation with the Company’s independent public accountants (with the Company to use reasonable best efforts to notify Parent of any such actions promptly thereafter(which notification may be provided by email or telephonically to representatives of Parent)); (xv) (A) make or change any material Tax election, and (B) file any amended Tax Returns, (C) settle or compromise any material Tax liability of the Company or any of its Subsidiaries, (D) subject agree to Section 3.7(b), issuances an extension or waiver of Company Common Stock pursuant the statute of limitations with respect to the assessment or determination of Taxes of the Company ESPP; providedor any of its Subsidiaries, however(E) enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund, that (F) incur any material liability for Taxes outside the stock option grants pursuant ordinary course of business, (G) make any material changes in its methods, practices or policies of Tax accounting; (xvi) fail to clause use its reasonable best efforts to maintain in full force and effect the existing insurance policies of the Company and its Subsidiaries or to replace such insurance policies with comparable insurance policies covering the Company, its Subsidiaries and their respective properties, assets and businesses; (Cxvii) shall not exceed grants of options fail to acquire 25,000 shares of Company Common Stock use its reasonable best efforts to all such individuals maintain in full force and effect any Money Transmitter License required to continue to operate its business as currently operated; (xviii) except for any changes made to comply with the Deferred Prosecution Agreement or similar changes intended to enhance the Company’s compliance procedures in the aggregate ordinary course of business, (the grants described, and subject A) make any changes to the limitations, in clauses operation or protection of IT Assets related to compliance with Anti-Money Laundering Laws or regulations administered by OFAC or (B) and make any material changes in the operation or protection of any material IT Assets; or (Cxix) agree to, or make any commitment to, take any of the actions prohibited by this Section 5.1(a). (b) Nothing contained in this Agreement is intended to give Parent, directly or indirectly, the “Ordinary Course Grants”right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and for purposes conditions of this Section 6.1Agreement, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock complete control and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, supervision over its and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;its Subsidiaries’ respective operations.

Conduct of Business Prior to the Effective Time. Except as expressly permitted herein, set forth in Section 6.1 of the (a) The Company Schedule of Exceptions, or required by Lawagrees that, from and after the Execution Date through date hereof and prior to the Effective Time or the termination of date, if any, on which this Agreement is earlier terminated pursuant to its termsSection 7.1 (the "Termination Date"), and except as may be otherwise agreed in writing by Parent, as may be expressly permitted pursuant to this Agreement, as set forth in the $2.8 million capital expenditure budget for the Company's fiscal year ending March 31, 2003 (the "Budget") or as set forth in Section 5.1 of the Company shallDisclosure Schedule: (i) the business of the Company and each Subsidiary shall be conducted only in the usual, regular and ordinary course and substantially in the same manner as heretofore conducted, and cause each of the Company and its Subsidiaries to, conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, shall use its reasonable best efforts to maintain and preserve substantially intact its business organization intact, keep available the services of its current officers and employees and maintain its existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with it (provided that the Parent and Purchaser acknowledge that the Company is in breach of the Credit Agreement and will be in breach of the Credit Agreement at the Effective Time), to the end that the goodwill and ongoing business of those having business relationships with it. Without limiting each of them shall be unimpaired at the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of Effective Time; (ii) neither the Company Schedule nor any Subsidiary shall: (A) amend its certificate of Exceptionsincorporation or by-laws or similar organizational documents, (B) issue, sell, transfer, pledge, dispose of or encumber any shares of any class or series of its capital stock or securities convertible into or exchangeable for, or required by Lawoptions, from warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock, other than Shares reserved for issuance on the Execution Date through the Effective Time or the termination of this Agreement date hereof pursuant to its termsthe exercise of Company Options outstanding on the date hereof, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: (aC) Declaredeclare, set aside or pay any dividends on dividend or make any other distributions (whether distribution payable in cash, stock, equity securities stock or property) in property with respect to any shares of any class or series of its capital stock (other than a cash dividend paid by a Subsidiary of the Company to the Company or another wholly-owned subsidiary of the Company) (D) split, combine or reclassify any shares of any class or series of its stock; (E) redeem, purchase or otherwise acquire directly or indirectly any shares of any class or series of its capital stock stock, or issue any instrument or authorize security which consists of or includes a right to acquire such shares; or (F) amend the issuance Rights Agreement in any respect. (iii) neither the Company nor any Subsidiary shall modify, amend or terminate any material Company Agreement or waive, release or assign any material rights or claims; (iv) neither the Company nor any Subsidiary shall: (A) incur or assume any long-term or short-term indebtedness; (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other securities in respect ofPerson; (C) make any loans, in lieu of advances or capital contributions to, or investments in, any other Person (other than to, from, or in substitution for wholly owned Subsidiaries of the Company); (D) enter into any material commitment or transaction (including, but not limited to, any capital stockexpenditure or purchase, sale or lease of assets or real estate), except in the ordinary course of business and as set forth in the Budget; or (E) incur or modify the terms of any indebtedness or other liability (other than any such transaction by a wholly-owned Subsidiary trade payables or the lease of it that remains a wholly-owned Subsidiary of it after consummation of such transaction the premises located at South Leg Ground Floor, "B" Building, BAE Systems, West Hanningfield Road, Great Baddow, Chelmsford, England arising in the ordinary course of business); provided, however, provided that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below)and Purchaser may enter into the Loan Agreement, the Forbearance Agreement and the Lender Discharge Agreement; (bv) Purchaseneither the Company nor any Subsidiary shall transfer, redeem lease, license, sell, mortgage, pledge, dispose of, or encumber any assets other than in the ordinary and usual course of business and consistent with past practice; (vi) except as otherwise acquirespecifically provided in this Agreement, directly (A) make any change in the compensation payable or indirectly, to become payable (1) to (x) any shares of its capital stock officers or the capital stock of its Subsidiariesdirectors, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee (y) employees, agents or upon the resignation of any director consultants or consultantto Persons providing management services, in each casecase earning in excess of $50,000 per annum, except as expressly required by any agreement now in effect; or (2) other than in the ordinary course of business, to any such employees, agents or consultants or to Persons providing management services, in each case earning $50,000 or less per annum; or (B) enter into or amend any 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 or make any change in its existing borrowing or lending arrangements or programs for or on behalf of any of such Persons pursuant to stock option an employee benefit plan or purchase agreements in effect on the date hereofotherwise; (cvii) Issueexcept as otherwise specifically contemplated by this Agreement, deliverpay or make any accrual or arrangement for payment of any pension, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants retirement allowance or other rights employee benefit pursuant to any existing plan, agreement or arrangement to any officer, director, employee or Affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officer, director, employee or Affiliate of the Company existing on the date hereof in accordance with their present terms or granted pursuant of any amount relating to clauses (B) or (C) hereofunused vacation days, (B) grants of stock options to purchase Company Common Stock granted except payments and accruals made in the ordinary course of business consistent with past practice and on Ordinary Course Terms (practice, adopt or pay, grant, issue, accelerate or accrue salary or other payments or benefits pursuant to any pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or any employment or consulting agreement with or for the benefit of any director, officer, employee, agent or consultant, whether past or present other than in accordance with employee benefit plans, agreements, or arrangements as defined below) to new Company employees under the Company Option Plans outstanding in effect on the date hereof, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof except payments made in the ordinary course of business consistent with past practice practice, or amend in connection any respect any such existing plan, agreement or arrangement in a manner inconsistent with annual compensation reviews the foregoing; (viii) neither the Company nor any Subsidiary shall permit any of its properties or assets to fail to be covered by insurance policies reflecting coverage that is consistent with prudent industry practice; (ix) neither the Company nor any Subsidiary shall pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than in the ordinary course promotions of business and other than the payment to Lenders of amounts due under Amendment No. 2 to the Forbearance Agreement and Amendment No. 9 to the Credit Agreement as set forth on the Company Disclosure Schedule, payments to Argus Management Corporation and payment of reasonable fees and expenses to Xxxxxxxx Xxxxxxx LLP and TM Capital Corp. related to the transactions contemplated herein; (x) neither the Company nor any Subsidiary will adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Subsidiary (other than the Merger); (xi) neither the Company nor any Subsidiary will (i) change any of the accounting methods used by it unless required by GAAP or (ii) make any material election relating to Taxes, change any material election relating to Taxes already made, adopt any material accounting method relating to Taxes, change any material accounting method relating to Taxes unless required by GAAP, 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 or file any amended Tax Return or claim for refund, except, provided that in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that has afforded the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and Parent an opportunity for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms review (i) the Company may settle its existing IRS examination adjustments and, in connection therewith enter into a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock Closing Agreement, if required, and (ii) a vesting schedule no more favorable than one-quarter the Company may file amended tax returns to carry back its 2002 net operating loss and to further carryback other losses and adjustments resulting from such carryback; (1/4xii) on neither the one-year anniversary Company nor any Company Subsidiary will take, or agree to commit to take, any action that would or is reasonably likely to result in (A) any representation or warranty in Article III hereof being untrue or incorrect in any material respect, or (B) any of the conditions to the Offer set forth in Annex A hereto or any of the conditions to the Merger set forth in Article VI hereof not being satisfied, except as may otherwise be permitted under section 5.7 hereof; (xiii) the Company shall not alter, amend or waive, or consent or agree to any alteration, amendment or waiver of, any provision of the Loan Discharge Agreement, the Credit Agreement, the Forbearance Agreement, or any other agreement or instrument executed in connection therewith; or (xiv) neither the Company nor any if its Subsidiaries will enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, recommend, propose or announce an intention to do any of the foregoing. (b) Parent agrees that, from and after the date hereof and prior to the earlier of grantthe Effective Time and the Termination Date, and one-forty-eighth except as may be agreed in writing by the Company or as may be permitted pursuant to this Agreement, Parent shall not, and shall not permit any of its Subsidiaries to (1/48i) on each monthly anniversary agree, in writing or otherwise, to take any action which would result in any of the date conditions to the Offer set forth in Annex A hereto or any of grant thereafter;the conditions to the Merger set forth in Article VI hereof not being satisfied or (ii) delay the consummation of the Offer, including by application of Rule 14e-5 under the Exchange Act.

Conduct of Business Prior to the Effective Time. Except The Company covenants and agrees that, during the period from the date hereof until the Effective Time, except as expressly permitted herein, contemplated by this Agreement or as set forth in the corresponding subsection of Section 6.1 of the Company Schedule of ExceptionsDisclosure Schedule, or required by Lawunless ANM otherwise agrees in writing, from the Execution Date through business of the Effective Time or the termination of this Agreement pursuant to its termsCompany, the Company shallSubsidiaries and the Nonprofit Organizations, and cause its Subsidiaries tothe use, conduct its business in all material respects operation, maintenance and repair of their respective assets, including the Real Property, will be conducted in the ordinary course Ordinary Course of its business consistent with past practice and, to Business and the extent consistent therewith, Company will use its reasonable best efforts to maintain and preserve substantially intact its business organization organization, material insurance policies and goodwill, to keep available the services of its present officers and other key employees and to preserve its present relationships with suppliers, employees, tenants, licensees and all other Persons with which it has significant business relations. Between the date of this Agreement and the goodwill of those having business relationships with it. Without limiting the foregoingEffective Time, and except as otherwise expressly contemplated by this Agreement or as set forth in the corresponding subsection of Section 6.1 of the Company Schedule of ExceptionsDisclosure Schedule, or required by Lawneither the Company, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the any Company shall not, Subsidiary nor shall it permit any of its Subsidiaries to, Nonprofit Organization will without the prior written consent of Parent: ANM (a) Declarewhich consent will not be unreasonably withheld or delayed, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall ANM will be construed as prohibiting entitled to take into account its plans for the Company from granting Company Options that are Ordinary Course Grants (as defined below);after the Effective Time in determining whether or not to grant such consent): (ba) Purchasepurchase, redeem or otherwise acquire, directly or indirectly, any shares of acquire its capital stock stock, or the capital stock of its Subsidiariesissue, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, delivergrant, sell, authorizetransfer, pledge authorize or otherwise encumber any shares of capital stock, or subscriptionssecurities convertible into or exchangeable for, rightsor options, warrants warrants, calls, commitments or options rights of any kind to acquire acquire, any shares of capital stock any class or any securities convertible into shares series of its capital stock, or enter into other agreements any agreement, understanding or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants or other rights of the Company existing on the date hereof in accordance arrangement with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted in the ordinary course of business consistent with past practice and on Ordinary Course Terms (as defined below) to new Company employees under the Company Option Plans outstanding on the date hereof, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant respect to the Company ESPPvoting of its capital stock; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject ANM hereby consents to the limitations, issuance of the Change in clauses (B) and (C), Control Shares after the “Ordinary Course Grants”, and for purposes date of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with Agreement and at or before the following terms Effective Time; (b) (i) increase the compensation payable or to become payable to or fringe benefits of any current or former directors, officers, employees, independent contracts or consultants of the Company, the Company Subsidiaries or the Nonprofit Organizations (collectively, “Company Personnel”), except for increases in salary or wages in the Ordinary Course of Business to employees who are not executive officers or directors or the payment of accrued but unpaid bonuses, (ii) grant new bonuses or grant any severance or termination or transition pay to Company Personnel, (iii) establish, adopt or enter into, amend or terminate any Benefit Plan or any plan, agreement, arrangement, program, policy, trust, fund or other arrangement that would be a per share exercise price that Benefit Plan if it were in existence as of the date of this Agreement (except as may be required by applicable Law), (iv) hire, or enter any agreement to hire, any employee on a full-time, part-time (other than temporary employees hired in the Ordinary Course of Business), consulting or other basis for annual compensation in excess of $25,000; or (v) enter into, renew, extend, amend, modify, terminate, cancel, waive, release or assign any employment or independent contractor agreements with any current employees of the Company or any Company Subsidiary or Nonprofit Organization; (c) (i) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure, management structure or, if applicable, ownership of the Company, any Company Subsidiary or any Nonprofit Organization, (ii) acquire or agree to acquire (by merger, consolidation, acquisition of assets or otherwise) any Person or material assets, or any voting or non-voting equity securities or similar ownership interests in any Person, (iii) split, combine, subdivide or reclassify any shares of any class or series of its capital stock or (iv) declare, set aside, make or pay any dividend or make other distribution payable in cash, stock, property or otherwise to holders of any class or series of its capital stock; (d) enter into, renew, extend or amend or modify in any material respect or terminate, cancel, waive, release or assign any contract or agreement which is no less than or, if applicable, would be a Material Contract; (e) except as disclosed in the Company’s, the Company Subsidiaries’ and the Nonprofit Organizations’ capital expenditure budgets for the current market price at fiscal year, true, correct and complete copies of which have been provided to ANM, commit to any capital expenditures in excess of the time Material Amount; (f) manage the working capital of grant the Company, the Company Subsidiaries and the Nonprofit Organizations (including, but not limited to, accounts receivable and accounts payable) outside of the Ordinary Course of Business; (g) make any loans, any advances (other than travel advances to employees in the Ordinary Course of Business) or any capital contributions to, or any investments in, any other Person; (h) (i) incur or modify Indebtedness owed by the Company, any Company Subsidiary or any Nonprofit Organization, guarantee any Indebtedness of another Person or cancel any Indebtedness or other obligation owed to the Company, any Company Subsidiary or any Nonprofit Organization, (ii) redeem, repurchase, prepay or otherwise acquire any Indebtedness of the Company, any Company Subsidiary or any Nonprofit Organization or (iii) enter into hedging, swap or factoring arrangements or contracts or other similar financing instruments; (i) amend any provisions of the articles of organization or bylaws or other organizational documents of the Company, any Company Subsidiaries or any Nonprofit Organizations; (j) transfer, lease, license, sublicense, assign, sell, sublease, mortgage, pledge, or otherwise dispose of, in whole or in part, or incur or subject any Encumbrance on, any property or assets, (including, without limitation, any interest in any Real Property), in each case other than in the Ordinary Course of Business, or amend in any material respect, extend or terminate any Real Property Lease; (k) other than with respect to purchase orders in the Ordinary Course of Business, make any payments in excess of the Material Amount or incur any commitment in excess of the Material Amount; (l) commence, undertake or engage in any new line of business; (m) permit any insurance policy or arrangement naming or providing for the Company, any Company Subsidiary or any Nonprofit Organization as a share beneficiary or a loss payable payee to be cancelled or terminated or impaired in any way; (n) settle, dismiss, compromise, or commence any Action threatened against, relating to or involving the Company, any Company Subsidiary or any Nonprofit Organization in connection with any business, asset or property of the Company, any Company Common Stock Subsidiary or any Nonprofit Organization, or waive, assign or release any material rights or claims; (o) enter into any transaction, agreement, arrangement or understanding between (i) the Company, any Company Subsidiary or any Nonprofit Organization, on the one hand, and (ii) a vesting schedule no more favorable than one-quarter (1/4) any other Affiliate of the Company, on the one-year anniversary other hand, of the date type that would be required to be disclosed under Item 404 of grantRegulation S-K; (p) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, and one-forty-eighth (1/48) on each monthly anniversary or in any of the date conditions to the Cash Merger set forth in Article VII hereof being satisfied or in a violation of grant thereafterany provision of this Agreement; (i) make any Tax election or change any method of accounting, (ii) enter into any settlement or compromise of any Tax liability, (iii) file any amended Tax Return with respect to any Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any Tax, (vi) surrender any right to claim a material Tax refund or (vi) take any action or enter into any agreement that would jeopardize the Tax exemption of any of the Nonprofit Organizations; (r) fail to timely satisfy or cause to be timely satisfied all applicable Tax reporting and filing requirements contained in the Code with respect to the transactions contemplated by this Agreement; (s) make any changes in accounting policies or procedures other than in the Ordinary Course of Business and other than as required by GAAP or a Governmental Authority; (t) except to the extent necessary to take any actions that the Company, the Company Subsidiaries or the Nonprofit Organizations are otherwise permitted to take pursuant to Section 6.7 (and in such case only in accordance with the terms of Section 6.7), waive any of its rights under, or release any other party from, amend, or fail to enforce its rights under, any standstill provision of any agreement; or (u) enter into any agreement, contract, commitment, understanding or arrangement to do any of the foregoing, or authorize, recommend, propose or announce an intention to take any of the actions described in Sections 6.1(a) through 6.1(u).

Conduct of Business Prior to the Effective Time. Except as expressly permitted herein, set forth in Section 6.1 Conduct of Business of the Company Schedule of Exceptions, or required by Law, from Company. During the Execution Date through period commencing on the date hereof and continuing until the Effective Time or the termination of this Agreement pursuant to its termsTime, the Company shall, and cause its Subsidiaries to, conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to maintain and preserve substantially intact its business organization and the goodwill of those having business relationships with it. Without limiting Equityholders agree that the foregoingCompany, and except as otherwise expressly contemplated by this Agreement or as set forth agreed to in Section 6.1 of writing by the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: (a) Declare, set aside will carry on its business only in the ordinary course and consistent with past practice; (b) will not declare or pay any dividends dividend on or make any other distributions distribution (whether in cash, stock, equity securities or propertyhowever characterized) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance shares of any other securities in respect of, in lieu of or in substitution for any its capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (bc) Purchase, redeem or otherwise acquirewill not, directly or indirectly, redeem or repurchase, or agree to redeem or repurchase, any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereofstock; (cd) Issuewill not amend its Certificate of Incorporation or By-Laws; (e) will not issue, deliveror agree to issue, sell, authorize, pledge or otherwise encumber any shares of its capital stock, or subscriptions, rightsany options, warrants or options other rights to acquire any shares of its capital stock stock, or any securities convertible into or exchangeable for shares of its capital stock; (f) will not combine, split or otherwise reclassify any shares of its capital stock; (g) will not form a Subsidiary; (h) will use its commercially reasonable best efforts to preserve intact its present business organization, keep available the services of its officers and key employees and preserve its relationships with clients and others having business dealings with it to the end that its goodwill and ongoing business shall not be materially impaired at the Effective Time; (i) will not (i) make any capital expenditures individually in excess of $4,000 or in the aggregate in excess of $8,000, (ii) enter into any license, distribution, OEM, reseller, joint venture or other similar agreement, (iii) enter into or terminate any lease of, or purchase or sell, any real property, (iv) enter into any leases of personal property involving individually in excess of $4,000 annually or in the aggregate in excess of $8,000 annually, (v) incur or guarantee any additional indebtedness for borrowed money, (vi) create or permit to become effective any security interest, mortgage, lien, charge or other encumbrance on its properties or assets, or (vii) enter into any agreement to do any of the foregoing; (j) will not adopt or amend any Benefit Plan for the benefit of Employees, or increase the salary or other compensation (including, without limitation, bonuses or severance compensation) payable or to become payable to its Employees or accelerate, amend or change the period of exercisability or the vesting schedule of options granted under any stock option plan or agreements except as specifically required by the terms of such plans or agreements, or enter into other agreements or commitments obligating it any agreement to issue do any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants or other rights of the foregoing; (k) will not accelerate receivables or delay payables; (l) will promptly advise the Parent of the commencement of, or threat of (to the extent that such threat comes to the knowledge of the Company, or any of the Equityholder), any claim, action, suit, proceeding or investigation against, relating to or involving the Company existing on the date hereof or any of its Subsidiaries or any of their directors, officers, employees, agents or consultants in accordance connection with their present terms businesses or granted pursuant the transactions contemplated hereby that could reasonably be expected to clauses have a Company Material Adverse Effect; (Bm) or (C) hereof, (B) grants of stock options will use its commercially reasonable efforts to purchase Company Common Stock granted maintain in the ordinary course of business consistent with past practice full force and on Ordinary Course Terms (as defined below) to new Company employees under effect all insurance policies maintained by the Company Option Plans outstanding on the date hereof; and (n) will not enter into any agreement to dissolve, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers)merge, under the Company Option Plans outstanding on the date hereof consolidate or, except in the ordinary course course, sell any material assets of business consistent with past practice in connection with annual compensation reviews the Company, or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options acquire or agree to acquire 25,000 shares by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of Company Common Stock the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division, or otherwise acquire or agree to all such individuals acquire any assets in excess of $1,000 in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;aggregate.

Conduct of Business Prior to the Effective Time. Except Section 7.1 Conduct of Business by Gladstone. Following the date hereof and prior to the Effective Time, except as expressly permitted herein, set forth in Section 6.1 of otherwise contemplated by this Agreement or unless the Company Schedule of Exceptionsshall otherwise consent in writing: (a) subject to the limitations contained in or transactions contemplated by this Agreement, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to Gladstone shall carry on its terms, the Company shall, and cause its Subsidiaries to, conduct its business in all material respects operations in the usual and ordinary course of its business consistent with past practice andpractice, to the extent consistent therewith, and shall use its reasonable best efforts to maintain and preserve substantially intact its present business organization organization, keep available the services of its present officers and employees, maintain and keep its material assets in as good repair and condition as of the goodwill of those date hereof, ordinary wear and tear and damage due to casualty excepted, and preserve its relationships with customers, suppliers and others having business relationships dealings with it. Without limiting it to the foregoing, end that its goodwill and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of the Company Schedule of Exceptions, or required by Law, from the Execution Date through on-going businesses shall be materially unimpaired at the Effective Time or the termination of this Agreement pursuant to its terms, the Company Time; (b) Gladstone shall not, nor shall it permit any of its Subsidiaries propose to, without the prior written consent except as required by this Agreement, (i) amend its Certificate of Parent: Incorporation or By-laws, (aii) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any its outstanding capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for any shares of the capital stock, or declare, set aside or pay any dividend or other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction distribution payable in the ordinary course of business; providedcash, howeverstock or property, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants or (as defined below); (biii) Purchasedirectly or indirectly redeem, redeem purchase or otherwise acquireacquire or agree to redeem, directly purchase or indirectly, otherwise acquire any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereofstock; (c) IssueGladstone shall not, deliverwithout the consent of the Company: (i) except as required or contemplated by this Agreement, sellissue, authorizedeliver or sell or agree to issue, pledge deliver or otherwise encumber sell any additional shares of, or stock appreciation rights or rights of any kind to acquire any shares of, its capital stock of any class, any Gladstone Voting Debt, or any option, rights or warrants to acquire, or securities convertible into, shares of capital stock, (ii) acquire or subscriptions, rights, warrants lease or options agree to acquire or lease any shares material capital asset or assets, or make any other capital expenditures, (iii) dispose or agree to dispose of capital stock assets or any securities convertible into shares of capital stockother assets other than in the ordinary course, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (iv) (A) issuances create, incur, assume or permit additional material indebtedness (including obligations in respect of Company Common Stock upon the exercise of Company Options, Company Warrants or other rights of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereofcapital leases), (B) grants assume, guarantee, endorse or otherwise become liable or responsible for the obligations of stock options any other person in an amount in excess of $10,000, (C) encumber or grant a security interest in any Material Gladstone Asset, or (D) make any loans or advances to purchase Company Common Stock granted any other person, enter into any agreement or instrument relating to the borrowing of money or the extension of credit or enter into any other material transaction, other than in each case in the ordinary course of business consistent with past practice practice,(v) enter into or renew any material agreements, contracts or other commitments that are not expected to be fully performed within thirty days after the Effective Time excluding oil and on Ordinary Course Terms gas leases, farmout agreements, gas sales or purchase contracts, joint operating agreements, unit operating agreements and unit agreements entered into in the ordinary course of business, or (vi) adopt, enter into, amend or terminate any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) Gladstone shall not, except as defined belowrequired to comply with applicable law: (i) to new Company employees under adopt, enter into, terminate or amend any bonus, profit sharing, compensation, severance, termination, stock option, pension, retirement, deferred compensation, employment or other Plan, agreement, trust, fund or other arrangement for the Company Option Plans outstanding on the date hereofbenefit or welfare of any current or former director, officer or employee, (Cii) grants increase in any manner the compensation or fringe benefits of stock options to purchase Company Common Stock granted to existing Company employees any director (other than to directors and officersthe adoption of any special compensation for the members of the Special Committee), executive officer or employee, (iii) pay any benefit not provided under any existing plan or arrangement, (iv) grant any awards under any other bonus, incentive, performance or other compensation plan or arrangement or plan (including, without limitation, the Company Option grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Plans outstanding on or agreements or awards made thereunder), (v) take any action to fund or in any other way secure the date hereof payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Plan, other than in the ordinary course of business consistent with past practice practice, or (vi) adopt, enter into, amend or terminate any contract, agreement, commitment or arrangement to do any of the foregoing; (e) Gladstone shall not, make any change in connection with annual compensation reviews its accounting policies or ordinary course promotions procedures, except as required under GAAP; (f) Gladstone shall use its reasonable best efforts to refrain from taking any action that would, or reasonably might be expected to, result in any of its representations and warranties set forth in each case on Ordinary Termsthis Agreement being or becoming untrue in any material respect as of the Effective Time, and (D) subject to Section 3.7(b), issuances or in any of Company Common Stock pursuant the conditions to the Company ESPP; providedMerger set forth in Article IX not being satisfied, howeveror (unless such action is required by applicable law) that would adversely affect the ability of Gladstone to obtain any of the regulatory approvals required to consummate the Merger, that the stock option grants pursuant to clause as contemplated hereby; (Cg) Gladstone shall not exceed grants settle or compromise any claim for dissenters' rights in respect of options to acquire 25,000 shares the Merger; (h) Gladstone shall maintain in full force and effect all of Company Common Stock to all such individuals its policies of insurance in existence as of the aggregate (the grants described, and subject date hereof or insurance comparable to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms coverage afforded by such policies; and (i) Gladstone shall not enter into any natural gas or other future or options trading or be a per share exercise party to any price that is no less than swaps, hedgxx, xxtures or similar instruments without first obtaining the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary consent of the date of grantCompany, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;which consent shall not be unreasonably withheld.

Conduct of Business Prior to the Effective Time. (a) Except as expressly permitted herein, set forth in Section 6.1 of the Company Schedule of Exceptions, or required contemplated by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its termsAgreement, the Company shallshall carry on its business in, and cause its Subsidiaries tonot enter into any material transaction other than in accordance with, conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to maintain preserve intact its current business organization, keep available the services of its current officers and key employees and preserve substantially intact its business organization relationships with customers, suppliers and the goodwill of those others having business relationships dealings with itit (except, in each case, with the prior written consent of Parent). Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its termsAgreement, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: (ai) Declare(A) declare, set aside or pay any dividends on on, or make any other actual, constructive or deemed distributions (whether in cashrespect of, any of its capital stock, equity securities or propertyotherwise make any payments to any stockholder in its capacity as such, (B) in respect of any capital stock or split, combine or reclassify any of its capital stock or issue issue, sell or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any shares of its capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants stock or (as defined below); (bC) Purchasepurchase, redeem or otherwise acquireacquire any shares of capital stock of the Company or any other securities thereof; (ii) issue, directly deliver, sell, pledge, dispose of or indirectly, otherwise encumber any shares of its capital stock or the capital stock of its Subsidiariesother securities (including, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with without limitation, any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of its capital stock or other securities other than any securities convertible into issuance of shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Stock Options and Warrants or other rights the conversion of Company Preferred Stock in accordance with the Company existing terms thereof as in effect on the date hereof hereof); (iii) amend its Certificate of Incorporation or By-laws; (iv) acquire or agree to acquire by merging or consol- idating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other busi- ness organization or division thereof; (v) other than incurring indebtedness to Parent under the Parent Loan Agreement, incur or assume any indebtedness for borrowed money, enter into (as lessee) any capitalized lease obligation, guarantee any such indebtedness or obligation, issue or sell any debt securities, guarantee any debt securities of others or make any loans, advances or capital contributions to, or investments in, any other Person; (vi) make or incur or agree to make or incur any new capital expenditure or expenditures other than in accordance with their present terms the Cash Flow Projection; (vii) pay, discharge or granted satisfy any claims, liabili- ties or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the pay- ment, discharge or satisfaction thereof in the ordinary course of business consistent with past practice; (viii) alter through merger, liquidation, reorganiza- tion, restructuring or in any other fashion its corporate structure; (ix) enter into or adopt, or amend, any bonus, incentive, deferred compensation, insurance, medical, hospi- tal, disability or severance plan, agreement or arrangement or enter into or amend any employee benefit plan or employment, consulting or management agreement, other than any such amendment to an employee benefit plan that is made to maintain the qualified status of such plan or its contin- ued compliance with applicable law and annual renewals of such plans that do not materially increase the benefits accruing to plan participants or the total cost or liability to the Company; (x) make any change in accounting practices or policies applied in the preparation of the financial statements referred to in Section 5.4, except as required by generally accepted accounting principles; (xi) modify any Company Agreement, enter into any agreement, understanding, obligation or commitment, or incur any indebtedness or obligation, of the type that would have been a Company Agreement if in existence on the date hereof, or enter into any contract which requires any approval or consent by any other Person to the transactions contemplated by this Agreement; (xii) pay or commit to pay any bonus to any officer or employee of the Company, or make any other material change in the compensation of its employees; provided, however, that nothing contained herein shall preclude the Company from adjusting salaries for its employees pursuant to clauses the Company's normal year-end salary review process in an aggregate amount not to exceed 6% of the prior year's aggregate compensation base as reflected on Form W-3 for the employee group subject to such salary review; (Bxiii) make any change in its business or operations or make any expenditure which shall exceed the amount, as set forth in Schedule 5.26, budgeted therefor; (Cxiv) hereofenter into any contract for the purchase of real property or exercise any option to extend a lease listed in Schedule 5.11; (xv) sell, lease (Bas lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the Company's assets, other than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of the Company's business consistent with past practice and other than Permitted Encumbrances; (xvi) grants cancel any debts owed to or claims held by the Company (including the settlement of stock options any claims or litigation) other than in the ordinary course of the Company's business consistent with past practice; (xvii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of its business consistent with past practice; (xviii) delay or accelerate payment of any account payable or other liability beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of its business consistent with past practice; (xix) allow the levels of raw materials, sup- plies, work-in-process or other materials included in its inventory to purchase Company Common Stock granted vary in any material respect from the levels customarily maintained in its business; (xx) prepare or file any Tax Returns in a manner inconsistent with past practice or, on such Tax Returns, take any position, make any election, or adopt any method that is inconsistent with the positions taken, elections made or methods used in preparing and filing similar Tax Returns in prior periods; or (xxi) enter into any other transaction affecting the business of the Company, other than in the ordinary course of business consistent with past practice and on Ordinary Course Terms (or as defined below) to new Company employees under the Company Option Plans outstanding on the date hereof, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of expressly contemplated by this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;Agreement.

Conduct of Business Prior to the Effective Time. 4.1 Conduct of Business by Company. ------------------------------ (a) Except as expressly permitted herein, set forth in Section 6.1 of on Schedule 4.1(a), during the Company Schedule of Exceptions, or required by Law, period from the Execution Date through date of this Agreement and continuing until the Effective Time or earlier of the termination of this Agreement pursuant to its termsterms or the Effective Time, the Company and each of its subsidiaries shall, and cause its Subsidiaries toexcept to the extent that Parent shall otherwise consent in writing, conduct which consent shall not be unreasonably withheld, carry on its business in all material respects in the ordinary course of its business substantially consistent with past practice andand in substantial compliance with all applicable laws and regulations, to the extent consistent therewith, and use its commercially reasonable best efforts substantially consistent with past practices and policies to maintain and (i) preserve substantially intact its present business organization organization, (ii) keep available the services of its present executive officers and the goodwill of those having business employees, and (iii) preserve its relationships with it. Without limiting customers, suppliers, distributors, licensors, licensees and others with which it has material business dealings. (b) In addition, without the foregoingprior written consent of Parent, and except as otherwise expressly contemplated by which shall not be unreasonably withheld, during the period from the date of this Agreement or as set forth in Section 6.1 and continuing until the earlier of the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its termsterms or the Effective Time, the Company shall not, nor shall it permit except as set forth on Schedule 4.1(a), do any of the following and shall not permit its Subsidiaries to, without subsidiaries to do any of the prior written consent of Parentfollowing: (ai) DeclareExcept as required by law or pursuant to the terms of a Plan in effect as of the date hereof, waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans; (ii) Grant any severance or termination pay to any officer or a higher level employee except pursuant to written agreements outstanding, or policies or practices existing, on the date hereof and as previously disclosed in writing or made available to Parent, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof; (iii) Other than in the ordinary course of business substantially consistent with past practices, transfer or license to any person or entity or otherwise extend, amend or modify any rights to the Company Intellectual Property, or enter into grants to transfer or license to any person future patent rights; (iv) Except as described in Schedule 4.1(b)(iv) hereto (x) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or (y) split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (bv) PurchaseExcept as described in Schedule 4.1(b)(v) hereto, purchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or the capital stock of Company or its Subsidiariessubsidiaries, other than except repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof (or any such agreements entered into in the ordinary course consistent with past practice by Company with employees hired after the date hereof); (cvi) Issue, deliver, sell, authorize, pledge or otherwise encumber encumber, or propose any of the foregoing, with respect to any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such securities shares or rightsconvertible securities, other than: than (x) the issuance, delivery and/or sale of (A) issuances shares of Company Common Stock upon pursuant to the exercise of stock options or warrants outstanding as of the date of this Agreement and (B) shares of Company OptionsCommon Stock in accordance with the Earn-Out Agreement, and (y) the granting of stock options in the ordinary course of business in such amounts and in all other respects substantially consistent with past practices. (vii) Cause, permit or submit to a vote of Company's stockholders any amendments to the Company Warrants Charter Documents (or similar governing instruments of any of its subsidiaries); (viii) Acquire, or agree to acquire, by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any joint ventures or strategic partnerships except, in each instance, any such acquisition which is (x) in the ordinary course of business of Company or its subsidiaries or (y) not material to Company and its subsidiaries taken as a whole; (ix) Sell, lease, license, encumber or otherwise dispose of any assets (including capital stock of subsidiaries) which are material, individually or in the aggregate, to Company, except (i) internal reorganizations or consolidations involving existing subsidiaries, (ii) other dispositions of assets if the fair market value of such assets does not exceed in the aggregate $1,000,000 and (iii) in the ordinary course of business; (x) Incur any indebtedness for borrowed money in excess of $1,000,000, or guarantee any such indebtedness of another person (other than indebtedness of owned subsidiaries), issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Company, enter into any agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the Company existing on foregoing other than in connection with the date hereof financing of working capital consistent with past practice or enter into any transaction involving more than $500,000 in accordance with their present terms capital expenditures, other than ordinary capital expenditures; (xi) Adopt or granted pursuant to clauses amend any Plan or any employee stock purchase or employee stock option plan; or enter into any employment contract or collective bargaining agreement (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice and on Ordinary Course Terms with employees who are terminable "at will"); pay any special bonus or special remuneration to any director or employee; or increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, in the ordinary course of business or as defined belowmay be required by law; (xii) (A) pay, discharge, settle or satisfy any material litigation (whether or not commenced prior to new the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business substantially consistent with past practice or payment or satisfaction of liabilities recognized or disclosed in the most recent financial statements (or the notes thereto) of Company employees under included in the Company Option Plans outstanding on SEC Reports or incurred since the date hereof, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under such financial statements or disclosed in Section 2.9 or 2.10 of the Company Option Plans outstanding on Schedule in accordance with their terms, provided, that the date hereof settlement of any material litigation shall require the written consent of Parent, or (B) waive the benefits of, agree to modify in any material manner, terminate, release any person from or knowingly fail to enforce the confidentiality or nondisclosure provisions of any material agreement to which Company or any of its subsidiaries is a party or of which Company or any of its subsidiaries is a beneficiary; (xiii) Except in the ordinary course of business consistent with past practice, modify, amend or terminate any Company Contract disclosed in Section 2.16 of the Company Schedule or waive, delay the exercise of, release or assign any material rights or claims thereunder; (xiv) Except as required by GAAP, revalue any of its material assets or make any change in accounting methods, principles or practices; (xv) Engage in any action that would reasonably be expected to cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code, whether or not, otherwise permitted by the provisions of this Article IV; (xvi) Make any Tax election or accounting method change (except as required by GAAP or applicable Tax law) inconsistent with past practice that, individually or in connection with annual compensation reviews the aggregate, is reasonably likely to affect the Tax liability or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances Tax attributes of Company Common Stock pursuant or any of its subsidiaries, settle or compromise any Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes that is reasonably likely to have a Material Adverse Effect on Company; (xvii) Redeem the Rights Plan or amend, modify (other than to delay any "distribution date" therein until immediately prior to the Company ESPP; provided, however, that expiration of a tender or exchange offer) or terminate the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject Rights Plan prior to the limitations, Effective Time unless required to do so by a court of competent jurisdiction; or (xviii) Agree in clauses (B) and (C), writing or otherwise to take any of the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms actions described in paragraphs (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and through (iixvii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;above.

Conduct of Business Prior to the Effective Time. (a) Except as expressly permitted herein, set forth in Section 6.1 of the Company Schedule of Exceptions, or required contemplated by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its termsAgreement, the Company shallshall carry on its business in, and cause its Subsidiaries tonot enter into any material transaction other than in accordance with, conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to maintain preserve intact its current business organization, keep available the services of its current officers and preserve substantially intact its business organization relationships with customers, suppliers and the goodwill of those others having business relationships dealings with itit (except, in each case, -43- 48 with the prior written consent of Parent). Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of the Company Schedule of Exceptions, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its termsAgreement, the Company shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: (ai) Declare(A) declare, set aside or pay any dividends on on, or make any other actual, constructive or deemed distributions (whether in cashrespect of, any of its capital stock, equity securities or propertyotherwise make any payments to its Shareholders in their capacity as such, (B) in respect of any capital stock or split, combine or reclassify any of its capital stock or issue issue, sell or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any shares of its capital stock, stock (other than any issuances of its securities upon the exercise of any outstanding options to purchase such transaction by a wholly-owned Subsidiary securities or upon the conversion of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options any outstanding convertible securities that are Ordinary Course Grants convertible into such securities) or (as defined below); (bC) Purchasepurchase, redeem or otherwise acquireacquire any shares of capital stock of the Company or any other securities thereof; (ii) except as set forth in clause (i) above, directly issue, deliver, sell, pledge, dispose of or indirectly, otherwise encumber any shares of its capital stock or the capital stock of its Subsidiariesother securities (including, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with without limitation, any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of its capital stock or other securities); (iii) amend its Articles of Incorporation or Bylaws; (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, partnership, association or other business organization or division thereof; (v) incur or assume any indebtedness for borrowed money, enter into (as lessee) any capitalized lease obligation, guarantee any such indebtedness or obligation, issue or sell any debt securities, guarantee any debt securities convertible of others or make any loans, advances or capital contributions to, or investments in, any other Person, except the incurrence and/or guarantee of indebtedness to fund working capital; (vi) make or incur any new capital expenditure or expenditures which, individually, is in excess of $50,000 or, in the aggregate, are in excess of $200,000; (vii) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction thereof in the ordinary course of business consistent with past practice; (viii) alter through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure; (ix) enter into shares or adopt, or amend, any bonus, incentive, deferred compensation, insurance, medical, hospital, disability or severance plan, agreement or arrangement or enter into or amend any employee benefit plan or employment, consulting or management agreement, other than any such amendment to an employee benefit plan that is made to maintain the qualified status of capital stocksuch plan or its continued compliance with applicable law; (x) make any change in accounting practices or policies applied in the preparation of the financial statements referred to in SECTION 5.4, except as required by generally accepted accounting principles; (xi) modify any of the agreements, understandings, obligations, commitments, indebtedness or other obligations set forth in any of the Schedules to this Agreement, enter into any agreement, understanding, obligation or commitment, or incur any indebtedness or obligation, of the type that would have been required to be listed on SCHEDULE 5.19 if in existence on the date hereof, or enter into any contract which requires any approval or consent by any other agreements Person to the transactions contemplated by this Agreement; (xii) pay or commit to pay any bonus to any officer or employee of the Company or make any other material change in the compensation of its employees; (xiii) make any change in its business or operations or make any expenditure which shall exceed the amount, as set forth in SCHEDULE 5.25, budgeted therefor; (xiv) make any capital expenditure or enter into any contract or commitment therefor, other than capital expenditures or commitments obligating it for capital expenditures referred to issue in the applicable budget contained in SCHEDULE 5.25; (xv) enter into any contract for the purchase of real property or for the sale of any Owned Real Property or exercise any option to purchase real property listed in SCHEDULE 5.10 or any option to extend a lease listed in SCHEDULE 5.11; (xvi) sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the Company's assets, other than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of the Company's business consistent with past practice and other than Permitted Encumbrances; (xvii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Company's business consistent with past practice; (xviii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of its business consistent with past practice; (xix) delay or accelerate payment of any account payable or other liability beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of its business consistent with past practice; (xx) allow the levels of raw materials, supplies, work-in-process or other materials included in its inventory to vary in any material respect from the levels customarily maintained in its business; (xxi) enter into any transaction with Affiliates, other than on an arms' length basis; (xxii) prepare or file any Tax Return inconsistent with past practice or, on any such securities Tax Return, take any position, make any election, or rightsadopt any method that is inconsistent with positions taken, other than: elections made or methods used in preparing or filing similar Tax Returns in prior periods (Aincluding, without limitation, positions, elections or methods which would have the effect of deferring income to periods after the Closing Date or accelerating deductions to periods prior to the Closing Date); (xxiii) issuances take any material action in respect of Company Common Stock upon the exercise of Company Options, Company Warrants or other intellectual property rights of the Company existing on Company, including in respect of patents or patent applications, except in the date hereof in accordance with their present terms or granted pursuant to clauses ordinary course of business; or (Bxxiv) or (C) hereofenter into any other transaction affecting the business of the Company, (B) grants of stock options to purchase Company Common Stock granted other than in the ordinary course of business consistent with past practice and on Ordinary Course Terms (or as defined below) to new Company employees under the Company Option Plans outstanding on the date hereof, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of expressly contemplated by this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;Agreement.

Conduct of Business Prior to the Effective Time. Except (i) as expressly permitted hereincontemplated by this Agreement, set forth (ii) as described in Section 6.1 5.1 of the Company Schedule of ExceptionsSynchrologic Disclosure Schedules, or required by Law(iii) to the extent that Pumatech shall otherwise consent in writing (such consent not to be unreasonably delayed or withheld), during the period from the Execution Date through date hereof to the earlier of the Effective Time or and the termination of this Agreement pursuant to in accordance with its terms, the Company Synchrologic shall, and shall cause each of its Subsidiaries to, conduct its business in all material respects operations in the ordinary course of its business consistent with past practice practices and, to the extent consistent therewith, use and with no less diligence and effort than would be applied in the absence of this Agreement, seek to preserve intact its reasonable best efforts to maintain current business organizations, keep available the service of its current officers and employees and preserve substantially intact its business organization relationships with customers, suppliers, distributors, lessors, creditors, employees, contractors and the goodwill of those others having business relationships dealings with itit with the intention that its goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by provided in this Agreement or and except as set forth described in Section 6.1 5.1 of the Company Schedule of ExceptionsSynchrologic Disclosure Schedules, or required by Law, from between the Execution Date through date hereof and the Effective Time or the termination of this Agreement pursuant to its termsTime, the Company shall not, neither Synchrologic nor shall it permit any of its Subsidiaries toshall, without the prior written consent (such consent not to be unreasonably delayed or withheld) of ParentPumatech: (ai) Declareauthorize or propose any amendments to its Articles of Incorporation or bylaws (or other similar governing instrument); (ii) accelerate, set aside amend or change the period of exercisability or the vesting schedule of restricted stock granted under any employee stock plan or agreements or authorize cash payments in exchange for any options granted under any of such plans except as specifically required by the terms of such plans or any related agreements or any such agreements in effect as of the date of this Agreement and specifically disclosed on Schedule 5.1 of the Synchrologic Disclosure Schedules; (iii) declare or pay any dividends on or make any other distributions (whether in cash, stock, equity securities stock or property) in respect of any of its capital stock stock, or 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 any shares of capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation stock of such transaction in the ordinary course of business; providedparty, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (b) Purchase, redeem or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or except from former employees, directors and consultants in accordance with agreements providing for the capital stock repurchase of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the any termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereofservice by such party; (civ) Issueissue, deliverdeliver or sell or authorize or propose the issuance, selldelivery or sale of, authorizeor purchase or propose the purchase of, pledge or otherwise encumber any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stockacquire, or enter into other agreements or commitments of any character obligating it to issue any such securities shares or rightsother convertible securities, other than: than (i) the issuance of (A) issuances shares of Company Synchrologic Common Stock issuable upon the exercise of Company OptionsSynchrologic Options or Synchrologic Warrants, Company Warrants or other rights of the Company existing which are outstanding on the date hereof in accordance with their present terms of this Agreement or granted pursuant to clauses (B) shares of Synchrologic Common Stock issuable upon conversion of shares of Synchrologic Preferred Stock or (Cii) hereof, (B) grants the repurchase of stock options to purchase Company shares of Common Stock granted from terminated employees pursuant to the terms of outstanding stock restriction or similar agreements; (v) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division, or otherwise acquire or agree to acquire any assets; (vi) (A) incur or assume any trade payables, long-term or short-term debt or issue any debt securities in excess of $50,000, other than trade payables not in excess of an aggregate of $100,000 arising in the ordinary course of business consistent with past practice practices and on Ordinary Course Terms Transaction Expenses; (as defined belowB) to new Company employees under assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently Table of Contents or otherwise) for the Company Option Plans outstanding on the date hereof, (C) grants obligations of stock options to purchase Company Common Stock granted to existing Company employees (any other than to directors and officers), under the Company Option Plans outstanding on the date hereof person except for obligations of any of its Subsidiaries incurred in the ordinary course of business consistent with past practice practices; (C) make any loans, advances or capital contributions to or investments in connection with annual compensation reviews any other person (other than to a Subsidiary or ordinary course promotions and customary loans or advances to employees in each case in the ordinary course of business consistent with past practices); (D) pledge or otherwise subject to any Lien (as defined in Section 11.13 hereof) shares of Synchrologic Common Stock or any of its Subsidiaries; or (E) mortgage or pledge any of its material properties or assets, tangible or intangible, or create or suffer to exist any new material Lien (or any increase or expansion of the scope of any existing Lien) thereupon; (vii) except as may be permitted by clause (ii) above or (viii) below or as may be required by Applicable Law or by the applicable agreement or instrument, (A) enter into, adopt, amend or terminate any employment agreement or any bonus payments, (B) enter into, adopt, amend or terminate any pension, retirement, deferred compensation, health, life, or disability insurance, dependent care, severance, profit sharing, compensation, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any director, officer, employee or consultant in any manner or (C) increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including the granting of stock options, restricted stock, stock appreciation rights or performance units); (viii) pay or agree to pay any severance or termination pay to any director, officer, employee or consultant, except payments (A) made pursuant to written agreements outstanding on Ordinary Termsthe date hereof copies of which have been provided to Pumatech, (B) that are otherwise set forth in Section 5.1(viii) of the Synchrologic Disclosure Schedules with respect to the termination of employees or consultants, or (C) as required by Applicable Law; (ix) exercise its discretion with respect to or otherwise voluntarily accelerate the vesting of any Synchrologic Stock Option as a result of the Merger, any other change of control of the Synchrologic (as defined in the Synchrologic Plans) or otherwise; (x) (A) except as permitted by clause (xiii)(E) below, purchase, acquire, lease or license-in any assets other than in the ordinary course of business consistent with past practices; (B) sell, transfer or otherwise dispose of any assets other than in the ordinary course of business consistent with past practices; (C) enter into any exclusive license, distribution, marketing or sales agreement; (D) other than in the ordinary course of business, enter into any commitment to any person to: (1) develop software without charge or for a de minimus charge, or (2) other than in the ordinary course of business consistent with past practices, incorporate any software into any of the Synchrologic products; (E) sell, license, transfer or otherwise dispose of any Intellectual Property; (F) grant “most favored nation” pricing to any entity. Notwithstanding the foregoing, the Synchrologic may: (I) purchase, acquire or license-in any assets that (a) in any single transaction or series of related transactions has a fair market value of less than $50,000 in the aggregate, and (b) does not require the Synchrologic to perform any obligation (other than normal confidentiality provisions) for a period (including any renewals) of more than one year; (II) sell, or non-exclusively license to third-parties, the Synchrologic Products in transactions that: (a) are in the ordinary course of business and consistent with past practices, (b) are non-exclusive licenses of “off-the-shelf” Synchrologic computer software applications to the Synchrologic end-user customers that are generally available to all interested end-users on standard terms and conditions, or (c) in any single transaction or series of related transactions, have a fair market value of less than $50,000 in the aggregate; and (III) license-in Shrinkwrap Software that: (a) in any single transaction or series of related transactions, has a fair market value no greater than $50,000 in the aggregate, and (b) does not require the Synchrologic to perform any obligation (other than normal confidentiality provisions) for a term (including any renewals) of no more than one year. Table of Contents (xi) except as may be required as a result of a change in law or in United States generally accepted accounting principles, change any of the accounting principles, practices or methods used by it; (xii) revalue any of its assets or properties, including writing down the value of assets or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices or due to changes in GAAP requiring such revaluation that are adopted after the date hereof; (A) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other person or division or business unit thereof or any equity interest therein; (B) enter into any contract or agreement that would be material to the Synchrologic and its Subsidiaries, taken as a whole other than customer contracts in the ordinary course of business consistent with past practices; (C) amend, modify or waive any right under any Material Contract of the Synchrologic or any of its Subsidiaries; (D) subject modify its standard warranty terms for its products or services or amend or modify any product or service warranties in effect as of the date hereof in any material manner that is adverse to Section 3.7(b)the Synchrologic or any of its Subsidiaries; or (E) authorize any additional or new capital expenditure or expenditures that individually or in the aggregate are in excess of $50,000 per fiscal quarter, issuances provided that the amount by which capital expenditures in any fiscal quarter shall be less than $50,000 shall be carried over to future months to increase the maximum that may be spent on capital expenditures in such fiscal quarter; (xiv) make or rescind any material election relating to Taxes or settle or compromise any material Tax liability or enter into any closing or other agreement with any Tax authority with respect to any material tax liability; or file or cause to be filed any material amended Tax Return, file or cause to be filed any claim for refund of Company Common Stock Taxes previously paid, or agree to an extension of a statute of limitations with respect to the assessment or determination of Taxes; (xv) fail to file any material Tax Returns when due, fail to cause such Tax Returns when filed to be materially true, correct and complete, prepare or fail to file any Tax Return in a manner inconsistent with past practices in preparing or filing similar Tax Returns in prior periods or, on any such Tax Return of the Synchrologic, 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, in each case, except to the extent required by Applicable Law, or fail to pay any material Taxes when due; (xvi) settle or compromise any pending or threatened suit, action or claim that (A) relates to the transactions contemplated hereby or (B) the settlement or compromise of which would involve more than $25,000 or that would otherwise be material to the Synchrologic with respect to non-monetary matters and its Subsidiaries or relates to any Intellectual Property matters; (xvii) enter into any licensing, distribution, sponsorship, advertising, merchant program or other similar contracts, agreements, or obligations which provide for payments by the Synchrologic or any Subsidiary other than in the ordinary course of business in an amount in excess of $50,000 over the noncancelable term of the agreement; (xviii) terminate any material software development project that is currently ongoing, except pursuant to the Company ESPPterms of existing contracts with customers; provided, however, that the stock option grants pursuant or (xix) take or agree in writing or otherwise to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary take any of the date of grant, actions described in Sections 5.1(i) through 5.1(xviii) (and one-forty-eighth (1/48) on each monthly anniversary it shall use all reasonable efforts not to take any action that would make any of the date representations or warranties of grant thereafter;Synchrologic contained in this Agreement untrue or incorrect).

Conduct of Business Prior to the Effective Time. (a) Except as expressly permitted herein, (i) set forth in Section 6.1 6.1(a) of the Company Schedule of ExceptionsDisclosure Schedule, (ii) expressly contemplated or permitted by this Agreement, or (iii) required by Law, during the period from the Execution Date through date of this Agreement to the earlier of the Effective Time or the termination of this Agreement pursuant to its termsin accordance with Section 8.1, unless Parent otherwise agrees in writing, the Company shall, and shall cause its each of the Company Subsidiaries to, (A) conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, and (B) use its reasonable best efforts to maintain and preserve substantially intact its business organization and the goodwill of those having business relationships with it. . (b) Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement or as (1) set forth in Section 6.1 6.1(b) of the Company Schedule of ExceptionsDisclosure Schedule, (2) expressly contemplated or permitted by this Agreement, or (3) required by Law, during the period from the Execution Date through date of this Agreement to the earlier of the Effective Time or the termination of this Agreement pursuant to its termsin accordance with Section 8.1, the Company shall not, nor and shall it not permit any of its the Company Subsidiaries to, without the prior written consent of Parent: (ai) Declare(A) issue, set aside sell, grant, dispose of, pledge or pay otherwise encumber, or authorize or propose the issuance, sale, grant, disposition or pledge or other encumbrance of, (1) any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect additional shares of any its capital stock or splitany securities or rights convertible into, combine exchangeable for, or reclassify evidencing the right to subscribe for any shares of its capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or issue any securities or authorize rights convertible into, exchangeable for, or evidencing the issuance right to subscribe for, any shares of its capital stock, other than upon exercise of Company Options or settlement of Company RSUs outstanding on the date of this Agreement (each in accordance with the terms thereof on the date hereof), or (2) any other securities in respect of, in lieu of of, or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectlyfor, any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect outstanding on the date hereof; of this Agreement, (cB) Issueredeem, deliver, sell, authorize, pledge purchase or otherwise encumber acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding shares of capital stock or any options, warrants or convertible securities or other rights to acquire any shares of its capital stock, or subscriptions(C) split, rightscombine, warrants subdivide or options to acquire reclassify any shares of its capital stock or declare, set aside for payment or pay any dividend, or make any other distribution in respect of any shares of capital stock or any options, warrants, convertible securities convertible into shares of or other rights to acquire any capital stock, or enter into otherwise make any payments to stockholders in their capacity as such, other agreements than dividends declared or commitments obligating it paid by any Company Subsidiary to any other Company Subsidiary or to the Company; (ii) other than borrowings under the Company's existing line of credit facility and guaranties of Real Property Leases in the ordinary course of business, create, incur, assume or modify in any material respect any indebtedness for borrowed money, or issue any note, bond or other debt security, or guarantee any indebtedness, in such securities cases in excess of $1,000,000 in the aggregate or rightsmake any loans, advances (other than: than advances to employees of the Company or any Company Subsidiary in the ordinary course of business) or capital contributions to or investments in any other Person other than to any of the Company and the Company Subsidiaries; (iii) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets with a value in excess of $2,000,000 to any Person other than the Company or a wholly-owned Company Subsidiary, or cancel, release or assign any indebtedness in excess of $2,000,000 to any such Person, except (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants or other rights of the Company existing on pursuant to contracts and agreements in force at the date hereof in accordance with their present terms of this Agreement or granted pursuant to clauses (B) renewals of any such contract or (C) hereofagreement, (B) grants pursuant to plans disclosed in the Company Disclosure Schedule, (C) the disposition of property identified as "excess property" on Section 6.1(b)(iii) of the Company Disclosure Schedule or (D) sales of inventory in the ordinary course of business; (iv) grant a license (whether written or oral but excluding any renewal, consistent with past practice, of any existing license) to, or any other rights with respect to, any material Company Intellectual Property to any Person except in the ordinary course of business consistent with past practice; provided in no event may the Company or the Company Subsidiaries grant a license (whether written or oral but excluding any renewal, consistent with past practice, of any existing license) that would be material to the Company's licensing program; (v) enter into any Contract containing any non-competition covenant binding upon the Company or any Company Subsidiary (other than Real Property Leases or license agreements in the ordinary course of business and not otherwise prohibited by this Section 6.1); (vi) make any material acquisition or investment (other than purchases of inventory, supplies and other assets in the ordinary course of business and investments made in accordance with the Company's cash management policies in the ordinary course of business consistent with past practice), whether by purchase of stock options or securities, merger or consolidation, contributions to purchase capital, property transfers, or purchases or exclusive licenses of any property or assets, of or in any Person other than a wholly-owned Company Common Stock granted Subsidiary or to the extent contemplated by the Company's capital expenditure budget for Fiscal Year 2006 (as most recently updated if applicable), a copy of which has been provided to Parent prior to the date of this Agreement, or for the following fiscal year of the Company, if and to the extent applicable; (vii) take any action (or fail to take any action) that would have the effect of allowing any employee who is not currently a participant in the Xxxxx Xxxxx Holdings, Inc. Senior Officer Change in Control Compensation Plan and set forth on Section 4.12(h) of the Company Disclosure Schedule, to become a participant or become eligible for any benefit under such plan; (viii) except for binding written commitments outstanding as of the date hereof and set forth on Section 4.12(a) of the Company Disclosure Schedule, provide any outplacement services to any employee or former employee of the Company at a cost in excess of $50,000 in the aggregate; provided that the Company shall be permitted to provide outplacement services to "Tier 1" and "Tier 2" participants in an aggregate amount not to exceed $125,000 as required pursuant to the Xxxxx Xxxxx Holdings, Inc. Senior Officer Change in Control Compensation Plan; (ix) (A) increase or decrease the rate or terms of compensation or benefits payable by the Company or any of the Company Subsidiaries to any of their respective directors, officers or employees, (B) enter into any employment or severance agreement with or grant or increase or otherwise modify the rate or terms of any bonus, pension, severance or other employee benefit plan, policy, agreement or arrangement with, for or in respect of any of their respective directors, officers or employees, or otherwise make any material amendment to any employee benefit plan, (C) establish, adopt, enter into or terminate any collective bargaining agreement or Benefit Plan or any employee benefit plan, policy or arrangement that, if it were in effect on the date of this Agreement, would be a Benefit Plan, or take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding of any of the foregoing, or (D) hire any person as a director or officer of the Company or any Company Subsidiary whose annual base salary exceeds $150,000, except in any such case for grants, increases or other actions described in the foregoing clauses (A) and (B), (1) required pursuant to the terms of plans or agreements in effect on the date of this Agreement, (2) occurring in the ordinary course of business consistent with past practice and on Ordinary Course Terms (as defined below) with respect to new Company employees under any Person who is not a director or officer of the Company Option Plans outstanding or a Company Subsidiary or (3) required by Law; provided, however, that notwithstanding this Section 6.1(b)(vii) or anything else to the contrary in this Agreement, the Company shall be permitted to enter into employment agreements with the individuals set forth on Section 6.1(b)(vii) of the Company Disclosure Schedule for the purpose of assuring continuity of management on such terms as the Company and Parent shall mutually agree on or prior to the Effective Date (in which case all applicable Sections of the Company Disclosure Schedule shall be deemed amended as of the date hereofof this Agreement to reflect disclosure of, and the Company's entry into, such employment agreements); (x) amend the Company Certificate or Company By-Laws (or the equivalent governing documents of the Company Subsidiaries); (xi) make any material change in accounting methods, principles, or practices, except as required by GAAP or by a Governmental Entity; (A) except as required by applicable Law, make or change any election in respect of Taxes or adopt or change any material accounting method in respect of Taxes, (B) enter into any tax allocation agreement, tax sharing agreement or closing agreement, or (C) grants settle or compromise any claim, notice, audit report or assessment in respect of stock options Taxes individually in excess of $500,000 or, except settlements consented to purchase by Parent, in the aggregate in excess of $2,000,000; (xiii) write up, write down or write off the book value of any assets, individually or in the aggregate, for the Company Common Stock granted and the Company Subsidiaries taken as a whole, in excess of $1,000,000, except in accordance with GAAP consistently applied; (xiv) subject to existing Company employees Section 6.3(c), take any action to exempt any Person (other than Parent or Merger Sub) or any action taken by such Person from, or make such Person or action not subject to, (A) the provisions of Section 203 of the DGCL, if applicable, or (B) any other state takeover law or state law that purports to directors limit or restrict business combinations or the ability to acquire or vote shares; (xv) implement any layoff of employees that would implicate the Worker Adjustment and officersRetraining Notification Act of 1988, as amended; (xvi) settle any litigation (or threatened litigation) for an amount in excess of $375,000 per litigation net of insurance proceeds or, except for settlements consented to by Parent, in the aggregate in excess of $1,500,000 net of insurance proceeds; (A) amend or modify in any material respect or terminate (other than in accordance with its terms) any Material Contract or (B) enter into any Material Contract (other than (1) purchases of inventory, supplies and assets in the ordinary course of business, (2) renewals of existing Real Property Leases in the ordinary course of business and on terms reflecting arms-length negotiations and otherwise consistent with the existing Real Property Leases, (3) except for renewals of existing Real Property Leases, as contemplated by the Company's budget for Fiscal Year 2006 (as most recently updated if applicable), under the Company Option Plans outstanding on a copy of which has been provided to Parent prior to the date hereof of this Agreement, and (4) with respect to the other subsections of this Section 6.1, Contracts not prohibited thereby); (xviii) other than in the ordinary course of business consistent with past practice practice, commence or undertake any extraordinary sales events or significant discounting of merchandise; (xix) take any actions intended to materially change in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant a manner adverse to the Company ESPPor the Company Subsidiaries, relationships with material product vendors and suppliers; provided, however, that the stock option grants pursuant to clause (C) foregoing shall not exceed grants prohibit the Company or the Company Subsidiaries from taking any action in good faith and in a manner consistent with its prior practices to enforce its existing agreements with such vendors and suppliers; (xx) except as permitted by Section 6.3, amend, modify or waive any provision of options any confidentiality agreement (or other similar agreement) or any agreement that restricts a Person's ability to acquire 25,000 shares securities of, or other interests in, the Company; (xxi) voluntarily fail to maintain in full force and effect or fail to use reasonable best efforts to replace or renew material insurance policies existing as of the date hereof and covering the Company Common Stock to all such individuals in or the aggregate Company Subsidiaries and their respective properties, assets and businesses; (the grants described, and subject xxii) sell or enter into any material agreement with respect to the limitationsuse or ownership of the Company's Groveport, in clauses Ohio distribution center; (Bxxiii) and open or commit to open any retail locations, or close, or commit to close any retail locations; or (C)xxiv) terminate, other than for cause, any employee covered by the “Ordinary Course Grants”Change-in-Control Plan; (xxv) take any action intended to, and for purposes or which the Company reasonably expects will, change the status of its control of Xxxxx Xxxxx GmbH & Co. KG, as control is defined under the German Act Against Restraints of Competition; (xxvi) agree to take any of the actions prohibited by this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;.

Conduct of Business Prior to the Effective Time. `Except (i) as expressly permitted hereincontemplated by this Agreement, set forth in Section 6.1 (ii) as described on Schedule 6.2 of the Company Schedule of ExceptionsDisclosure Schedules or (iii) to the extent that Parent shall otherwise consent in writing (such consent or declination to consent not to be unreasonably delayed or withheld), or required by Law, during the period from the Execution Date through date hereof to the earlier of the Effective Time or and the termination of this Agreement pursuant to in accordance with its terms, the Company shall, and cause its Subsidiaries to, shall conduct its business in all material respects operations in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, practices and will use its commercially reasonable best efforts to maintain preserve intact its current business organizations, keep available the service of its current officers and key employees and preserve substantially intact its business organization and the goodwill of those having business relationships with itmaterial customers and suppliers. Without limiting the foregoing, Except as otherwise expressly provided in this Agreement and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 described on Schedule 6.2 of the Company Schedule Disclosure Schedules, between the date hereof and the earlier of Exceptions, or required by Law, from the Execution Date through the Effective Time or and the termination of this Agreement pursuant to in accordance with its terms, the Company shall not, nor and the Company shall it permit any of its Subsidiaries cause each Subsidiary not to, without the prior written consent (such consent or declination to consent not to be unreasonably delayed or withheld) of Parent: (a) Declare, set aside authorize any amendments to its organizational documents; (b) declare or pay any dividends on or make any other distributions (whether in cash, stock, equity securities stock or property) in respect of any capital stock of its equity interests, or split, combine or reclassify any capital stock or of its equity interests; (c) issue or authorize sell any equity interests or securities convertible into equity interests, or warrants or options to acquire, any such equity interests other than the issuance of any other securities (i) shares of Common Stock, issuable upon exercise of Options, which are outstanding on the date of this Agreement or (ii) shares of Common Stock issuable upon conversion of shares of Preferred Stock; (d) acquire an equity interest in respect or portion of the assets of, in lieu of any business or in substitution for any capital stockcorporation, partnership or other business organization or division, other than any such transaction by a wholly-owned Subsidiary purchases of it that remains a wholly-owned Subsidiary of it after consummation of such transaction inventory and supplies in the ordinary course of business; provided; (e) other than the maximum amount of Indebtedness that may be borrowed under the Company’s or its Subsidiaries’ existing credit facility and other Indebtedness existing on the date hereof, howeverincur any debt or issue any debt securities; (f) except as may be required by applicable law or by any applicable agreement or instrument, that nothing herein shall be construed as prohibiting (1) enter into or amend any employment agreement with any executive officer of the Company from granting Company Options or any of its Subsidiaries, (2) enter into or amend any Employee Plan for the benefit of any director or executive officer in any manner, (3) increase the annual or hourly compensation of, or enter into any new bonus or incentive agreement or arrangement with, any group of employees or any employee with an annual salary that are Ordinary Course Grants exceeds $50,000, (as defined below4) pay or agree to pay any pension, retirement allowance or similar employee benefit to any employee, (5) amend, terminate, accelerate or modify the terms of any employment, severance, consulting, other compensation or collective bargaining agreement, (6) commit itself to or adopt any additional pension, profit-sharing, deferred compensation, group insurance, severance pay, retirement or other employee benefit plan, fund or similar arrangement or policy, or amend or commit itself to amend any of such plans, funds or similar arrangements or policies in existence on the date hereof, or (7) increase any benefits payable under any Employee Plan, trust, agreement or other arrangement covering any existing or former employee; (g) sell, transfer or otherwise dispose of any material assets other than in the ordinary course of business; (h) redeem, purchase or otherwise acquire any of its capital stock (or other applicable ownership interests); (bi) Purchasemake any loan to, redeem or enter into any other transaction with, any of its directors, officers or key employees unless such transaction with an officer or key employee is made in the ordinary course of business; (j) except as may be required as a result of a change in law or in GAAP, change any of the accounting principles, practices or methods used by it; (k) authorize any new capital expenditure or expenditures that would result in capital expenditures not contemplated by the Company 2010 Budget; or (l) amend, modify or terminate any Material Contract required to be identified on Schedule 4.18(a) or 4.18(b) of the Disclosure Schedules; (m) fail to maintain their assets in good operating condition and repair (subject to normal wear and tear) and as may be required for the normal operation of their business and to comply in all material respects with applicable Laws; (n) create, authorize or suffer to exist any Lien on their assets, other than Permitted Liens; (o) materially change their practice (as in effect during the eleven-month period ending November 30, 2009) with respect to the payment of accounts payable or the collection of accounts receivable, including the terms and timing of payments by customers or to vendors; or (p) take or agree in writing or otherwise acquireto take any of the actions described on Sections 6.2(a) through 6.2(o). Notwithstanding the foregoing, the Company, Merger Sub and Parent acknowledge and agree that (i) nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s operations for purposes of the HSR Act or any shares of its capital stock other applicable antitrust or competition Law prior to the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost expiration or for de minimis consideration in connection with either the termination of the employment relationship with any employee applicable HSR Act waiting period or upon the resignation any other applicable antitrust or competition Law waiting period, or prior to receipt of any director applicable approval under any antitrust or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants or other rights of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted in the ordinary course of business consistent with past practice and on Ordinary Course Terms (as defined below) to new Company employees under the Company Option Plans outstanding on the date hereof, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Termscompetition Law, and (Diii) subject to Section 3.7(b), issuances of Company Common Stock pursuant notwithstanding anything to the Company ESPP; providedcontrary set forth in this Agreement, however, that the stock option grants pursuant no consent of Parent will be required with respect to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals any matter set forth in the aggregate (the grants described, and subject Agreement to the limitations, in clauses (B) and (C), extent the “Ordinary Course Grants”, and for purposes requirement of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;such consent would violate any applicable Law.

Conduct of Business Prior to the Effective Time. Except The Company covenants and agrees that, during the period from the date hereof until the Effective Time, except as expressly permitted herein, contemplated by this Agreement or as set forth in the corresponding subsection of Section 6.1 of the Company Schedule of ExceptionsDisclosure Letter, or required by Lawunless Parent shall otherwise agree in writing, from the Execution Date through business of the Effective Time Company and the Company Subsidiaries, and the use, operation, maintenance and repair of the Leased Real Property or the termination Owned Real Property, shall be conducted in the Ordinary Course of this Agreement pursuant to its terms, Business and the Company shall, and cause its Subsidiaries to, conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, shall use its reasonable best efforts to maintain and preserve substantially intact its business organization organization, material insurance policies and goodwill, to keep available the services of its present officers and other key employees and to preserve its present relationships with suppliers, lessors, employees, customers, liaisons, licensees, distributors, wholesalers, franchisees and other Persons with which it has significant business relations. Between the date of this Agreement and the goodwill of those having business relationships with it. Without limiting the foregoingEffective Time, and except as otherwise expressly contemplated by this Agreement or as set forth in the corresponding subsection of Section 6.1 of the Company Schedule of ExceptionsDisclosure Letter, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, neither the Company nor any Company Subsidiary shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of Parent: Parent (a) Declarewhich consent shall not be unreasonably withheld or delayed, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein Parent shall be construed as prohibiting entitled to take into account its plans for the Company from granting Company Options that are Ordinary Course Grants (as defined below);after the Effective Time in determining whether or not to grant such consent): (ba) Purchase(i) purchase, redeem or otherwise acquire, directly or indirectly, any shares of acquire its capital stock stock, or the capital stock of its Subsidiariesissue, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, delivergrant, sell, authorizetransfer, pledge authorize or otherwise encumber any shares of capital stock, or subscriptionssecurities convertible into or exchangeable for, rightsor options, warrants warrants, calls, commitments or options rights of any kind to acquire acquire, any shares of capital stock any class or any securities convertible into shares series of its capital stock, or enter into other agreements any agreement, understanding or commitments obligating it arrangement with respect to issue the voting of its capital stock or (ii) accelerate, amend, modify or waive any such securities or stock repurchase rights, options, warrants or restricted stock, or grant, amend, reprice or exchange Stock Options under any of the Stock Plans or any other than: (A) issuances of Company Common Stock upon the exercise of Company Optionsequity or equity-based awards to any current or former director, Company Warrants officer, employee, independent contractor or other rights consultant of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants any of stock options to purchase Company Common Stock granted in the ordinary course of business consistent with past practice and on Ordinary Course Terms (as defined below) to new Company employees under the Company Option Plans outstanding on the date hereof, Subsidiaries (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.1collectively, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms Personnel”); (b) (i) a per share exercise price that is no less than increase the current market price at compensation payable or to become payable to or fringe benefits of any Company Personnel (except for increases in salary or wages in the time Ordinary Course of grant Business to employees who are not executive officers or directors or the payment of a share of Company Common Stock and accrued but unpaid bonuses), (ii) grant new bonuses or grant any severance or termination or transition pay to Company Personnel, (ii) establish, adopt or enter into, amend or terminate any Benefit Plan (including any Foreign Plan) or any plan, agreement, arrangement, program, policy, trust, fund or other arrangement that would be a vesting schedule no more favorable than one-quarter Benefit Plan (1/4including any Foreign Plan) on the one-year anniversary if it were in existence as of the date of grantthis Agreement (except as may be required by applicable Law) or allow for the commencement of any new offering periods under any employee stock purchase plans, and one(iii) hire, or enter any agreement to hire, any employee on a full-fortytime, part-eighth time (1/48other than temporary employees hired in the Ordinary Course of Business), consulting or other basis for annual compensation in excess of $100,000; (i) on each monthly anniversary alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of the date Company or any of grant thereafterthe Company Subsidiaries, (ii) acquire or agree to acquire (by merger, consolidation, acquisition of assets or otherwise) any Person or material assets, or any voting or non-voting equity securities or similar ownership interests in any Person, (iii) split, combine, subdivide or reclassify any shares of any class or series of its stock or (iv) declare, set aside, make or pay any dividend or make other distribution payable in cash, stock, property or otherwise to holders of any class or series of its stock; (d) enter into, renew, extend or amend or modify in any material respect or terminate, cancel, waive, release or assign any contract or agreement which is or, if applicable, would be a Material Contract (including, without limitation, the Visteon Agreement); (e) except as disclosed in the Company’s capital expenditure budget for the current fiscal year, commit to any capital expenditure (including, without limitation, purchase of new software) in excess of $100,000; (f) manage the working capital of the Company (including, but not limited to, accounts receivable and accounts payable) outside of the Ordinary Course of Business; (g) make any loans, any advances (other than travel advances to employees in the Ordinary Course of Business) or any capital contributions to, or any investments in, any other Person; (h) (i) incur or modify Indebtedness, or guarantee any Indebtedness, or cancel any Indebtedness or other obligation owed to the Company or any of its subsidiaries, (ii) redeem, repurchase, prepay, defense or otherwise acquire any Indebtedness of the Company or any Company Subsidiary or (iii) other than in the Ordinary Course of Business, enter into hedging, swap or factoring arrangements or contracts or other similar financing instruments; (i) amend any provisions of its articles of organization or bylaws or other organizational documents; (j) transfer, lease, license, sublicense, assign, sell, sublease, mortgage, pledge, or otherwise dispose of, in whole or in part, or incur or subject any Encumbrance on, any property or assets, (including, without limitation, Intellectual Property and any interest in any Owned Real Property), in each case, (other than in the Ordinary Course of Business or amend in any material respect, extend or terminate any leasehold interest in any Leased Real Property; (k) other than with respect to purchase orders in the Ordinary Course of Business, make any payments in excess of $100,000 or incur any commitment in excess of $100,000; (l) commence, undertake or engage in any new line of business; (m) adopt any material discounting or returns policy or program; (n) permit any insurance policy or arrangement naming or providing for it as a beneficiary or a loss payable payee to be cancelled or terminated or impaired in any way; (o) settle, dismiss, compromise, or commence any Action threatened against, relating to or involving the Company and any Company Subsidiary in connection with any business, asset or property of the Company and any Company Subsidiary or waive, assign or release any material rights or claims; (p) enter into any transaction, agreement, arrangement or understanding between (i) the Company or any Company Subsidiary, on the one hand, any (ii) any other Affiliate of the Company (other than the Company Subsidiary), on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K; (q) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII hereof being satisfied or in a violation of any provision of this Agreement; (i) make any material Tax election or change any method of accounting, (ii) enter into any settlement or compromise of any material Tax liability, (iii) file any amended Tax Return with respect to any material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax or (vi) surrender any right to claim a material Tax refund; (s) fail to timely satisfy or cause to be timely satisfied all applicable Tax reporting and filing requirements contained in the Code with respect to the transactions contemplated by this Agreement; (t) make any changes in accounting policies or procedures other than in the Ordinary Course of Business and other than as required by GAAP or a Governmental Authority; (u) except to the extent necessary to take any actions that the Company is otherwise permitted to take pursuant to Section 6.5 (and in such case only in accordance with the terms of Section 6.5), waive any of its rights under, or release any other party from, amend, or fail to enforce its rights under, any standstill provision of any agreement; (v) (i) open any new Company Facilities, or (ii) close, sell, reduce the size of, or expand any existing Company Facilities; or (w) enter into any agreement, contract, commitment, understanding or arrangement to do any of the foregoing, or authorize, recommend, propose or announce an intention to take any of the actions described in Sections 6.1(a) through 6.1(v).

Conduct of Business Prior to the Effective Time. Except as expressly permitted herein, set forth in Section 6.1 of the (a) The Company Schedule of Exceptions, or required by Lawagrees that, from and after the Execution Date through date hereof and prior to the Effective Time or the termination of date, if any, on which this Agreement is earlier terminated pursuant to its termsSection 7.1 (the "Termination Date"), and except as may be agreed in writing by DCNA, which agreement shall not be unreasonably withheld or delayed, as may be expressly permitted pursuant to this Agreement, the Company Company: (i) shall, and shall cause each of its Subsidiaries to, conduct its business operations in all material respects in the according to their ordinary course of its business consistent with past practice and, to in substantially the extent consistent therewith, same manner as heretofore conducted; (ii) shall use its reasonable best efforts efforts, and cause each of its Subsidiaries to maintain and use its reasonable best efforts, to preserve substantially intact its business organization and goodwill, keep available the goodwill services of those having business its current officers and other key employees and preserve its current relationships with it. Without limiting the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of those Persons having significant business dealings with the Company Schedule and its Subsidiaries; (iii) shall notify DCNA of Exceptions, any emergency or required by Law, from other substantial change in the Execution Date through normal course of its or its Subsidiaries' respective businesses or in the Effective Time operation of its or its Subsidiaries' respective properties and of any complaints of or hearings (or written communications indicating that the termination same are threatened) of this Agreement pursuant to its terms, which the Company has knowledge before any Governmental Entity if such emergency, change, complaint, investigation or hearing would have a Material Adverse Effect on the Company; (iv) shall not, nor and shall it not permit any of its Subsidiaries that is not incorporated or organized in the United States or not wholly owned to, without the prior written consent of Parent: (a) Declarerepatriate funds, set aside authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (other than dividends or distributions by wholly owned Subsidiaries of the Company); (whether v) shall not, and shall not permit any of its Subsidiaries to establish, enter into or amend any severance plan, agreement or arrangement or any Company Plan or materially increase the compensation payable or to become payable or the benefits provided to its officers or employees, except as may be required by applicable law or a contract in cashexistence on the date hereof, stockand except for increases for nonofficer employees in the normal course of business consistent with past practice and except as set forth in Section 5.1(a)(v) of the Company Disclosure Schedule; (vi) shall not, equity securities and shall not permit any of its Subsidiaries to, authorize or property) in announce an intention to authorize, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of any capital stock assets or splitsecurities, combine or reclassify any capital stock disposition of any assets or securities, except in an amount that is not material to the Company and its Subsidiaries taken as a whole and except for the disposition of the Company's 50% ownership interest in DeAnxxxx Xxxine Exhaust, Inc.; (vii) shall not, and shall not permit any of its Subsidiaries to, propose or adopt any amendments to its certificate of incorporation or by-laws (or other similar organizational documents); (viii) shall not, and shall not permit any of its Subsidiaries to, issue or authorize the issuance of, or agree to issue or sell any shares of capital stock of any other securities class (whether through the issuance or granting of options, warrants, commitments, convertible securities, subscriptions, rights to purchase or otherwise) except for the disposition of the Company's 50% ownership interest in respect ofDeAnxxxx Xxxine Exhaust, Inc., or take any action to cause to be exercisable any unexercisable option under any existing option plan, except for the issuance of shares of Company Common Stock pursuant to options and grants outstanding as of the date of this Agreement which were issued or made, as the case may be, pursuant to the Company's 1993 Stock Incentive Plan and 1998 Stock Incentive Plan and each of which is set forth in lieu Section 3.2(a) of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below)Disclosure Schedule; (bix) Purchaseshall not, and shall not permit any of its Subsidiaries to, reclassify, combine, split, purchase or redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost purchase or for de minimis consideration in connection with either the termination of the employment relationship with redeem any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any such shares (other than as contemplated by the Company Plans); (x) shall not, and shall not permit any of capital stock or any securities convertible into shares of capital stockits Subsidiaries to, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances incur, assume or prepay any indebtedness or any other liabilities for borrowed money or issue any debt securities other than incurrences and repayments of Company Common Stock upon indebtedness under the exercise of Company Options, Company Warrants Company's or other rights of the Company existing its Subsidiaries' credit facilities in existence on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted this Agreement in the ordinary course of business consistent with past practice and on Ordinary Course Terms or (as defined belowB) to new Company employees under assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the Company Option Plans outstanding on the date hereof, (C) grants obligations of stock options to purchase Company Common Stock granted to existing Company employees any other Person (other than to directors and officerswholly owned Subsidiaries), except for guarantees by Subsidiaries of the Company of indebtedness permitted under the preceding clause (A); (xi) shall not, and shall not permit any of its Subsidiaries to (or consent to any proposal by any Person in which the Company Option Plans outstanding on has an investment to), make or forgive any loans, advances or capital contributions to, or investments in, any other Person other than the date hereof Company or any wholly-owned Subsidiary of the Company (including any intercompany loans, advances or capital contributions to, or investments in, any affiliate) other than advances to employees in the ordinary course of business in accordance with the Company's or its Subsidiaries' established policies; (xii) shall not, and shall not permit any of its Subsidiaries to, (A) enter into any material lease or license or otherwise subject to any material Lien any of its properties or assets (including securitizations), other than in the ordinary course of business consistent with past practice practice; (B) modify or amend in any material respect, or terminate, any of its material contracts (except in the ordinary course of business); (C) waive, release or assign any rights that are material to the Company and its Subsidiaries taken as a whole; or (D) permit any insurance policy naming it as (xiii) shall not, and shall not permit any of its Subsidiaries to change any of the financial accounting methods used by it unless required by generally accepted accounting principles of the applicable country or change in applicable law; (xiv) shall not, and shall not permit any of its Subsidiaries to, file with, or submit to, any Governmental Entity (including the SEC) any registration statement, prospectus or other similar document, or any amendment or supplement thereto, relating to the issuance of any securities of the Company or any Subsidiary of the Company, other than a registration statement of the Company on Form S-8 (including any final prospectus thereon) or any amendment or supplement thereto, filed with the SEC in connection with annual compensation reviews or the Company's 1993 Stock Incentive Plan and 1998 Stock Incentive Plan in each case, in the ordinary course promotions and in each case on Ordinary Termsof business consistent with past practice; (xv) shall not, and shall not permit any of its Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions or take any action which would (Dy) subject make any representation or warranty in Article III hereof untrue or incorrect in any material respect, or (z) result in any of the conditions to Section 3.7(b)the Offer set forth in Annex A hereto or any of the conditions to the Merger set forth in Article VI hereof not being satisfied; (b) DCNA agrees that, issuances from and after the date hereof and prior to the earlier of the Effective Time and the Termination Date, and except as may be agreed in writing by the Company Common Stock or as may be expressly permitted pursuant to the Company ESPP; providedthis Agreement, howeverDCNA shall not, that the stock option grants pursuant to clause (C) and shall not exceed grants permit any of options its Subsidiaries to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than agree, in writing or otherwise, to take any action which would result in any of the current market price at conditions to the time Offer set forth in Annex A hereto or any of grant of a share of Company Common Stock and the conditions to the Merger set forth in Article VI hereof not being satisfied or (ii) a vesting schedule no more favorable than one-quarter (1/4) on delay the one-year anniversary consummation of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;Offer.

Conduct of Business Prior to the Effective Time. Except as expressly permitted herein, set forth in Section 6.1 of (a) During the Company Schedule of Exceptions, or required by Law, period from the Execution Date through the Effective Time or the termination date of this Agreement pursuant to its termsthe Effective Time, except as expressly required or permitted by this Agreement (including as set forth on Section 5.1(a) of the Company South Disclosure Schedule), or as required by applicable Law or as consented to in writing by North (such consent not to be unreasonably withheld), South shall, and shall cause each of its Subsidiaries to, (i) conduct its business in all material respects in the ordinary course of its business consistent with past practice andin all material respects, to the extent consistent therewith, (ii) use its commercially reasonable best efforts to maintain and preserve substantially intact its business organization and the goodwill of those having advantageous business relationships with it. Without limiting the foregoingrelationships, and retain the services of its key officers and key employees, (iii) maintain its properties in customary repair, order and condition, ordinary wear and tear excepted, (iv) comply with applicable Laws in all material respects, (v) take no action that would reasonably be expected to adversely affect or delay the obtaining of any necessary approvals of any Regulatory Agency or other Governmental Entity required to consummate the transactions contemplated hereby, and (vi) perform its covenants and agreements under this Agreement. (b) During the period from the date of this Agreement to the Effective Time, except as otherwise included in any North SEC Disclosure or as expressly contemplated required or permitted by this Agreement or (including as set forth in on Section 6.1 5.1(b) of the Company Schedule of ExceptionsNorth Disclosure Schedule), or as required by Lawapplicable Law or as consented to in writing by South (such consent not to be unreasonably withheld), from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its termsNorth shall, the Company and shall not, nor shall it permit any cause each of its Subsidiaries to, without (i) use commercially reasonable efforts to maintain and preserve intact its business organization and advantageous business relationships, and retain the prior written consent services of Parent: its key officers and key employees, (aii) Declarecomply with applicable Laws in all material respects, set aside (iii) take no action that would reasonably be expected to adversely affect or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect delay the obtaining of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance necessary approvals of any other securities in respect of, in lieu of or in substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, Company Warrants Regulatory Agency or other rights of Governmental Entity required to consummate the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted in the ordinary course of business consistent with past practice and on Ordinary Course Terms (as defined below) to new Company employees under the Company Option Plans outstanding on the date hereof, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Termstransactions contemplated hereby, and (Div) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, perform its covenants and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of agreements under this Section 6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;Agreement.