Common use of CONDUCT OF BUSINESSES PENDING THE MERGER Clause in Contracts

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Capital Stock; (iiB) amend its Certificate certificate of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in the Disclosures this Agreement; or (iiiC) split, combine or reclassify the outstanding Company Common Capital Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) except with respect to the issuance of Company Common Stock in connection with the conversion of Company Preferred Stock immediately prior to the Effective Time, the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Capital Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;; and (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate Articles of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; Disclosures (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 5.1. Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. Merger Sub shall otherwise agree in writing or as otherwise contemplated by this AgreementAgreement or the other agreements contemplated hereby: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws Bylaws except to effectuate the transactions contemplated in the Disclosures herein; or (iii) split, combine or reclassify the outstanding Company Common Stock Shares or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares ofShares, or options, warrants or rights of any kind to acquire any shares of, Company Common StockShares, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; Financing, (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it;; and (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; Disclosures (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) except with respect to the issuance of Company Common Stock in connection with the conversion of Company Preferred Stock immediately prior to the Effective Time, the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Capital Stock; (iiB) amend its Certificate certificate of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in the Disclosures this Agreement; or (iiiC) split, combine or reclassify the outstanding Company Common Capital Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) except with respect to the issuance of Company Common Stock in connection with the conversion of Company Preferred Stock immediately prior to the Effective Time, the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Capital Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;; and (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate Articles of Incorporation or By-laws Laws except to effectuate the transactions contemplated in the Disclosures by this Agreement or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares ofCompany Common Stock, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosurescontemplated by this Agreement; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (viv) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best commercially reasonable efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it;; and (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 SECTION 6.01. Conduct of Business by the Company Pending the Merger. Prior to . (a) The Company agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 6.01 of the Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, unless Parent or Acquisition Corp. shall otherwise agree consent in writing or as otherwise contemplated by this Agreementwriting: (ai) the business businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with past practice and in compliance with Law; (ii) the Company shall use its reasonable best efforts to preserve substantially intact its business organization, to keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations; and (iii) the Company shall perform or comply with all covenants and agreements contained in the ordinary course;Credit Agreement. (b) By way of amplification and not limitation of Section 6.01(a), except as contemplated by this Agreement or as set forth in Section 6.01 of the Disclosure Schedule, neither the Company shall not nor any Company Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (i) directly or indirectly redeem, purchase amend or otherwise acquire change the Company Articles of Incorporation or agree to redeemthe Company Regulations or equivalent organizational documents; (ii) issue, purchase sell, pledge, dispose of, grant, create an Encumbrance on, or otherwise acquire authorize the issuance, sale, pledge, disposition, grant or creation of an Encumbrance on, (i) any shares of its capital stock; stock of any class, or any options (ii) amend its Certificate including, without limitation, the issuance of Incorporation or By-laws except to effectuate any options under the transactions contemplated in employment agreement, dated October 31, 1995, between the Disclosures or (iii) splitCompany and Xxxxxxx X. Xxxxxxx, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to which issuance Xx. Xxxxxxx has waived any such stock; (c) rights pursuant to the Company shall not (i) issue Voting Agreement), warrants, convertible securities or agree to issue any additional shares of, or options, warrants or other rights of any kind to acquire any shares ofof such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company Common Stockor any Company Subsidiary, except to issue for the issuance of shares of Company Common Stock or Company Preferred Stock upon exercise of the Company Options or Company Warrants listed in connection with any matter relating Section 4.04 of the Disclosure Schedule to the Disclosures; extent that such Company Options and Company Warrants are vested and exercisable, or (ii) acquire any material assets of the Company or dispose any Company Subsidiary, except for sales of any fixed assets or acquire or dispose of any other substantial assets other than inventory in the ordinary course of business; business and in a manner consistent with past practice; (iii) incur additional Indebtedness authorize, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (iv) reclassify, combine, split, subdivide or redeem, change material terms, purchase or otherwise acquire, directly or indirectly, any of its capital stock or any other liabilities security exercisable for or enter convertible into any of its capital stock; (v) (A)(1) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other transaction business organization or any division thereof or (2) acquire any assets, other than purchases of Inventory, supplies and other similar assets in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement business consistent with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combinationpast practice; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 SECTION 5.01. Conduct of Business by the Company Pending the Merger. Prior to The Company covenants and agrees that, between the date of this Agreement and the Effective Time, except as specifically contemplated by any other provision of this Agreement or Section 5.01 of the Company Disclosure Letter, unless Parent or Acquisition Corp. shall otherwise agree in writing (such agreement not to be unreasonably withheld or as otherwise contemplated by this Agreement:delayed): (a) the business of Company and the Company Subsidiaries shall use all reasonable efforts to preserve intact their present lines of business, maintain their rights and franchises and preserve their relationships with employees, customers, suppliers and others having business dealings with them; provided, however, that no action by the Company or any Company Subsidiary with respect to matters specifically addressed by any other provision of this Section 5.01 or Section 6.07 shall be conducted only in the ordinary coursedeemed a breach of this Section 5.01(a); (b) neither the Company nor any Company Subsidiary shall not (i) directly or indirectly redeem, purchase amend or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend change its Certificate of Incorporation or By-laws Laws or equivalent organizational documents, except for the issuance of preferred stock in connection with acquisitions permitted pursuant to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stockSection 5.01(f)(i); (c) neither the Company nor any Company Subsidiary shall not (i) issue or agree to issue any additional shares issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock of the Company or any Company Subsidiary of any class, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company Common Stockor any Company Subsidiary, except to issue for (i) the issuance of any shares of Company Common Stock issuable pursuant to Company Stock Options outstanding on the date hereof in accordance with the respective terms thereof, (ii) the issuance, in the ordinary course of business and consistent with past practice, of Company Stock Options to purchase a maximum of 450,000 shares of Company Common Stock pursuant to Company Stock Option Plans in effect on the date of this Agreement in connection with the commencement of the employment of any matter relating Person by the Company or any Company Subsidiary and the shares of Company Common Stock issuable pursuant to such Company Stock Options, in accordance with the Disclosures; terms of the Company Stock Option Plans, (iiiii) issuances by a direct or indirect wholly owned subsidiary of the Company of capital stock to such subsidiary's parent, and (iv) issuances of capital stock in acquisitions permitted under Section 5.01(f); (d) neither the Company nor any Company Subsidiary shall declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, other than dividends by a direct or indirect wholly owned subsidiary of the Company to such subsidiary's parent; (e) neither the Company nor any Company Subsidiary shall reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for any such transaction by a wholly owned subsidiary of the Company that remains a wholly owned subsidiary of the Company after the consummation of such transaction; (f) neither the Company nor any Company Subsidiary shall: (i) acquire or dispose of (including, without limitation, by merger, consolidation, or acquisition or disposition of stock or assets) any fixed assets interest in any corporation, partnership, other business organization or acquire any division thereof, (x) for or dispose with a fair market value in excess of $500,000,000 or (y) in the case of acquisitions, as could reasonably be expected to result in any (A) delay in the consummation of the Merger or the transactions contemplated herein or (B) decrease in the likelihood that the conditions set forth in Sections 7.01(d) and (e) would be satisfied, or (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any other substantial assets other than Person, or make any loans or advances, except for (A) indebtedness incurred in the ordinary course of business; business and consistent with past practice, (iiiB) incur additional Indebtedness indebtedness of the Company to a direct or any other liabilities indirect wholly owned Company Subsidiary or enter into any other transaction other than indebtedness of a direct or indirect wholly owned Company Subsidiary to the Company or another direct or indirect wholly owned Company Subsidiary, or (C) indebtedness that in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combinationaggregate does not exceed $100,000,000; (dg) neither the Company nor any Company Subsidiary shall use change its best efforts to preserve intact method of accounting in effect at December 31, 1999, except as required by changes in GAAP or the business organization accounting rules and regulations of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with itSEC; (eh) neither the Company will not, nor will it authorize any director or authorize or permit Company Subsidiary shall take any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal action that would prevent the Merger from qualifying as a reorganization under Section 368(a) of the Internal Revenue Code; (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for informationi) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving neither the Company or for the acquisition of a substantial equity interest in it or nor any Company Subsidiary shall make any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated tax election or settle or compromise any existing activitiesmaterial federal, discussions state, local or negotiations with any Person conducted heretofore with respect to any of the foregoing; andforeign income tax liability;

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 SECTION 5.01. Conduct of Business by the Company Pending the Merger. Prior to The Company covenants and agrees that, between the date of this Agreement and the Effective Time, except as specifically contemplated by any other provision of this Agreement or Section 5.01 of the Company Disclosure Letter, unless Parent or Acquisition Corp. shall otherwise agree in writing (such agreement not to be unreasonably withheld or as otherwise contemplated by this Agreement:delayed): (a) the business of Company and the Company Subsidiaries shall use all reasonable efforts to preserve intact their present lines of business, maintain their rights and franchises and preserve their relationships with employees, customers, suppliers and others having business dealings with them; provided, however, that no action by the Company or any Company Subsidiary with respect to matters specifically addressed by any other provision of this Section 5.01 or Section 6.07 shall be conducted only in the ordinary coursedeemed a breach of this Section 5.01(a); (b) neither the Company nor any Company Subsidiary shall not (i) directly or indirectly redeem, purchase amend or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend change its Certificate of Incorporation or By-laws Laws or equivalent organizational documents, except as contemplated by Section 6.06 hereof or in connection with the issuance of preferred stock in connection with acquisitions permitted pursuant to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stockSection 5.01(f)(i); (c) neither the Company nor any Company Subsidiary shall not (i) issue or agree to issue any additional shares issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock of the Company or any Company Subsidiary of any class, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company Common Stockor any Company Subsidiary, except to issue for (i) the issuance of any shares of Company Common Stock issuable pursuant to Company Stock Options outstanding on the date hereof in accordance with the respective terms thereof, (ii) the issuance, in the ordinary course of business and consistent with past practice, of Company Stock Options to purchase a maximum of 450,000 shares of Company Common Stock to new employees of the Company in connection with the commencement of their employment with the Company of any matter relating Company Subsidiary pursuant to Company Stock Option Plans in effect on the Disclosures; date of this Agreement and the shares of Company Common Stock issuable pursuant to such Company Stock Options, in accordance with the terms of the Company Stock Option Plans, (iiiii) issuances by a direct or indirect wholly owned subsidiary of the Company of capital stock to such subsidiary's parent and (iv) issuances of capital stock in acquisitions permitted under Section 5.01(f); (d) neither the Company nor any Company Subsidiary shall declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, other than dividends by a direct or indirect wholly owned subsidiary of the Company to such subsidiary's parent; (e) neither the Company nor any Company Subsidiary shall reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for any such transaction by a wholly owned subsidiary of the Company that remains a wholly owned subsidiary of the Company after the consummation of such transaction; (f) neither the Company nor any Company Subsidiary shall: (i) acquire or dispose of (including, without limitation, by merger, consolidation, or acquisition or disposition of stock or assets) any fixed assets interest in any corporation, partnership, other business organization or acquire any division thereof, (x) for or dispose with a fair market value in excess of $500,000,000 or (y) in the case of acquisitions, that could reasonably be expected to result in any (A) delay in the consummation of the Merger or the transactions contemplated herein or (B) decrease in the likelihood that the conditions set forth in Sections 7.01(d) and (e) would be satisfied, or (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances, except for (A) indebtedness incurred in the ordinary course of business and consistent with past practice, (B) indebtedness of the Company to a direct or indirect wholly owned Company Subsidiary or indebtedness of a direct or indirect wholly owned Company Subsidiary to the Company or another direct or indirect wholly owned Company Subsidiary, and (C) indebtedness that in the aggregate does not exceed $100,000,000; (g) neither the Company nor any Company Subsidiary shall change its method of accounting in effect at December 31, 1999, except as required by changes in GAAP or the accounting rules and regulations of the SEC; (h) neither the Company nor any Company Subsidiary shall take any action that would prevent the Merger from qualifying as a reorganization under Section 368(a) of the Code; (i) neither the Company nor any Company Subsidiary shall make any material tax election or settle or compromise any material federal, state, local or foreign income tax liability; (j) neither the Company nor any Company Subsidiary shall enter into any new employment Contract or make any material commitment to employees (including any commitment to pay severance, retirement or other substantial assets material benefits) except in the ordinary course of business and consistent with past practice; (k) neither the Company nor any Company Subsidiary shall increase the compensation (including material fringe benefits) payable or to become payable to any officer, director or employee, except (x) general hourly rate increases and normal merit increases for employees other than executive officers made in the ordinary course of business and consistent with past practice and (y) for increases committed to prior to the date of this Agreement and not in contemplation thereof; (l) neither the Company nor any Company Subsidiary shall make any loan to any Person or increase the aggregate amount of any loan currently outstanding to any Person, except for usual and customary advances to employees made in the ordinary course of business or pursuant to commitments made prior to the date of this Agreement and not in contemplation thereof; (m) neither the Company nor any Company Subsidiary shall waive any stock repurchase rights, accelerate, amend or change the period of exercisability of outstanding options, reprice outstanding options granted under any Company Stock Option Plans or authorize cash payments in exchange for any outstanding options granted under any of such plans; (n) neither the Company nor any Company Subsidiary shall grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding or policies existing on the date hereof or adopt any new severance plan; (o) neither the Company nor any Company Subsidiary shall transfer or license to any Person or otherwise extend, amend or modify any rights to the Intellectual Property of them, or enter into any grants of future patent rights, other than in the ordinary course of business; business consistent with past practice; (iiip) incur additional Indebtedness neither the Company nor any Company Subsidiary shall not materially modify or amend, or terminate any Contract referred to in Section 3.17 of this Agreement (including any of the Company Stock Plans) to which the Company or any other liabilities Company Subsidiary is a party or waive, release, or assign any material rights or claims thereunder, in any such case in a manner materially adverse to Parent; (q) neither the Company nor any Company Subsidiary shall authorize or enter into any other transaction other than in the ordinary course of businessagreement to do anything prohibited by Sections 5.01(b) through (p); (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;and (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (er) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained (i) use its reasonable best efforts to consummate the transactions contemplated by it to make, solicit, encourage any inquiries with respect to, or engage the agreements listed in any negotiations concerning, any Acquisition Proposal (as defined below for purposes Section 5.02(r) of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company Disclosure Letter in accordance with the terms thereof, (ii) not take any action which would materially adversely impact the timing of the closing of such transactions or for the acquisition ability of a substantial equity interest in it the Company to satisfy the conditions precedent to the closing of such transactions, and (iii) not waive or amend any material assets provision of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any such agreements without the prior written approval of the foregoing; andParent.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 4.01 Conduct of Business by the Company LJR Pending the Merger. Prior to the Effective Time, unless Parent Pubco or Acquisition Corp. Merger Sub shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company LJR shall be conducted only in the ordinary course; (b) the Company LJR shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCapital Stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company LJR Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company LJR shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company LJR Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; provided, however, that notwithstanding anything to the contrary provided in this Agreement or elsewhere, LJR shall be permitted to take any of the actions set forth in this Section 4.01(c) in connection with any proposed acquisition of the stock and/or assets of any Person in the security and/or security related business. Section 4.02 Conduct of Business by Pubco and Merger Sub Pending the Merger. Prior to the Effective Time, unless LJR otherwise expressly agrees in writing or as otherwise expressly contemplated by this Agreement: (a) the business of Pubco and Merger Sub shall be and shall continue to be conducted only in the ordinary course; (b) neither Pubco nor Merger Sub shall directly or indirectly (i) redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its Capital Stock; (ii) amend its charter or by-laws other than to effectuate the transactions contemplated hereby; or (iii) split, combine or reclassify its Capital Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; (c) neither Pubco nor Merger Sub shall directly or indirectly (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its Capital Stock; (ii) acquire or dispose of any assets (except for dispositions in connection with Section 4.02(a) hereof); (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by Merger Documents, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business contract or enter into any negotiations in connection therewith; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good neither Pubco nor Merger Sub will of those having business relationships with it; (e) the Company will notdirectly or indirectly, nor will it they authorize any director or authorize or and/or otherwise permit any officer or employee or any director, officer, employee, advisor, consultant, Affiliate, attorney, accountant or other representative retained by it to of either of them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company Pubco will promptly advise Parent LJR orally and in writing of any such inquiries or proposals including any Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean direct or indirect any proposal for a merger or other business combination involving the Company Pubco or Merger Sub or for the acquisition of a substantial equity interest in it either of them or any material assets of it either of them other than as contemplated by this Agreement. The Company Pubco will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; (e) neither Pubco nor Merger Sub will directly or indirectly enter into any new employment agreements with any of their officers or employees or grant any increases in the compensation or benefits of their officers and employees; and (f) directly or indirectly pay, incur and/or become liable for any liabilities and/or Indebtedness unless expressly approved in writing by LJR.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Capital Stock; (iiB) amend its Certificate certificate of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in the Disclosures this Agreement; or (iiiC) split, combine or reclassify the outstanding Company Common Capital Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Capital Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;; and (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 SECTION 5.01. Conduct of Business by the Company Pending the Merger. Prior The Company hereby covenants and agrees that, prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise expressly contemplated by this Agreement: Agreement or consented to in writing by Parent, which consent shall not be unreasonably withheld or delayed, and except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company will and will cause its subsidiaries to (a) the operate its business of the Company shall be conducted only in the usual and ordinary course; course consistent with past practices, (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its reasonable best efforts to preserve substantially intact its business organization, maintain its rights and franchises, retain the services of its respective principal officers and key employees and maintain its relationships with its respective principal customers, suppliers and other persons with which it or any of its subsidiaries has significant business organization relations, (c) use its reasonable best efforts to maintain and keep its properties and assets in as good repair and condition as at present, ordinary wear and tear excepted, and (d) take no action with respect to the Company Stock Options that would result in an acceleration of vesting of the Company Stock Options in connection with the execution and delivery of this Agreement or the consummation of any transactions contemplated hereby or otherwise. SECTION 5.02. Conduct of Business by Parent Pending the Merger. Parent hereby covenants and agrees that, prior to the Effective Time, unless otherwise expressly contemplated by this Agreement or consented to in writing by the Company, which consent shall not be unreasonably withheld or delayed, and except as would not, individually or in the aggregate, reasonably be expected to keep available have a Parent Material Adverse Effect, Parent will and will cause its subsidiaries to (a) operate its business in the service usual and ordinary course consistent with past practices, (b) use its reasonable best efforts to preserve substantially intact its business organization, maintain its rights and franchises, retain the services of its present respective principal officers and key employees, employees and to preserve the good will of those having business maintain its relationships with it; (e) the Company will notits respective principal customers, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or suppliers and other representative retained by it to make, solicit, encourage any inquiries persons with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in which it or any material of its subsidiaries has significant business relations and (c) use its reasonable best efforts to maintain and keep its properties and assets of it other than in as contemplated by this Agreement. The Company will immediately cease good repair and cause to be terminated any existing activitiescondition as at present, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; andordinary wear and tear excepted.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Capital Stock; (iiB) amend its Certificate certificate of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in the Disclosures this Agreement; or (iiiC) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Capital Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosuresexercise of Common Stock Options; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it;; and (ev) the Company will notnot enter into any new employment agreements with any of its officers or employees or grant any increases in the compensation or benefits of its officers and employees or amend any employee benefit plan or arrangement other than in the ordinary course of business and consistent with past practice. Section 6.2 Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement: (i) neither the Parent nor Acquisition Corp. shall conduct any business other than in connection with effecting the transactions contemplated hereby; (ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and (iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith. (iv) neither Parent nor Acquisition Corp. will, nor will it they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company Parent will promptly advise Parent orally and the Company in writing of any such inquiries or proposals Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in it either of them or any material assets of it either of them other than as contemplated by this Agreement. The Company Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 SECTION 5.01. Conduct of Business by the Company Pending the Merger. Prior to The Company covenants and agrees that, between the date of this Agreement and the Effective Time, except as specifically contemplated by any other provision of this Agreement, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement:(such agreement not to be unreasonably withheld): (a) the business of Company and the Company Subsidiaries shall carry on their respective businesses in the usual, regular and ordinary course in all material respects, in substantially the same manner as heretofore conducted, and shall use all reasonable efforts to preserve intact their present lines of business, maintain their rights and franchises and preserve their relationships with employees, customers, suppliers and others having business dealings with them; provided, however, that no action by the Company or any Company Subsidiary with respect to matters specifically addressed by any other provision of this Section 5.01 shall be conducted only in the ordinary coursedeemed a breach of this Section 5.01(a) unless such action would constitute a breach of one or more of such other provisions; (b) neither the Company nor any Company Subsidiary shall not (i) directly or indirectly redeem, purchase amend or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend change its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures Laws or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stockequivalent organizational documents; (c) neither the Company nor any Company Subsidiary shall not (i) issue or agree to issue any additional shares issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock of the Company or any Company Subsidiary of any class, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company Common Stockor any Company Subsidiary, except to issue for (i) the issuance of a maximum of 2,376,138 shares of Company Common Stock in connection with any matter relating issuable pursuant to Company Stock Options outstanding on the date hereof or pursuant to the Disclosures; Purchase Plan in accordance with the respective terms thereof and (ii) the issuance, in the ordinary course of business and consistent with past practice, of Company Stock Options to purchase a maximum of 500,000 shares of Company Common Stock pursuant to Company Stock Option Plans in effect on the date of this Agreement and the shares of Company Common Stock issuable pursuant to such Company Stock Options, in accordance with the terms of the Company Stock Option Plans and (iii) issuances by a direct or indirect wholly owned subsidiary of the Company of capital stock to such subsidiary's parent; (d) neither the Company nor any Company Subsidiary shall declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, other than dividends by a direct or indirect wholly owned subsidiary of the Company to such subsidiary's parent; (e) neither the Company nor any Company Subsidiary shall reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for any such transaction by a wholly owned subsidiary of the Company that remains a wholly owned subsidiary of the Company after the consummation of such transaction; (f) neither the Company nor any Company Subsidiary shall: (i) acquire or dispose of (including, without limitation, by merger, consolidation, or acquisition or disposition of stock or assets) any fixed assets interest in any corporation, partnership, other business organization or acquire any division thereof or dispose of any other substantial assets assets, other than (A) pursuant to the definitive agreements listed in Section 5.01(f) of the Company Disclosure Letter, (B) the acquisition or disposition of assets in the ordinary course of business consistent with past practice not in connection with acquiring a business, (C) other such acquisitions involving the payment solely of cash consideration, such cash consideration not to exceed $25,000,000 in the aggregate, and (D) other such dispositions involving the receipt solely of cash consideration, such cash consideration not to exceed $2,000,000 in the aggregate; (iiiii) incur additional Indebtedness any indebtedness for borrowed money or issue any other liabilities debt securities or enter into assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any other transaction other than Person, or make any loans or advances, except for (A) indebtedness incurred in the ordinary course of businessbusiness and consistent with past practice and (B) indebtedness of the Company to a direct or indirect wholly owned Company Subsidiary or indebtedness of a direct or indirect wholly owned Company Subsidiary to the Company or another direct or indirect wholly owned Company Subsidiary; (iii) authorize any capital expenditure, other than capital expenditures, for the Company and the Company Subsidiaries as a whole, in an aggregate amount not exceeding $15,000,000; or (iv) pledge or encumber assets of the Company or any Company Subsidiary, except in the ordinary course of business and in a manner consistent with past practice; (g) neither the Company nor any Company Subsidiary shall change its method of accounting in effect at June 30, 1998, except as required by changes in GAAP or the accounting rules and regulations of the SEC; (h) neither the Company nor any Company Subsidiary shall make any material tax election or settle or compromise any material federal, state, local or foreign income tax liability; (i) neither the Company nor any Company Subsidiary shall take any action that would result in (i) any of the representations or warranties of the Company set forth in this Agreement that are qualified as to materiality becoming untrue, (ii) any of such representations or warranties that are not so qualified becoming untrue in any material respect or (iii) except as otherwise permitted by Section 6.04, any of the conditions to the Merger set forth in Article VII not being satisfied; and (j) neither the Company nor any Company Subsidiary shall authorize or enter into any contractagreement to do anything prohibited by Sections 5.01(b) through (i). SECTION 5.02. Conduct of Business by Parent Pending the Merger. Parent agrees that, agreementbetween the date of this Agreement and the Effective Time, commitment except as specifically contemplated by any other provision of this Agreement, unless the Company shall otherwise agree in writing (such agreement not to be unreasonably withheld): (a) Parent and the Parent Subsidiaries shall carry on their respective businesses in the usual, regular and ordinary course in all material respects, in substantially the same manner as heretofore conducted, and shall use all reasonable efforts to preserve intact their present lines of business, maintain their rights and franchises and preserve their relationships with employees, customers, suppliers and others having business dealings with them; provided, however, that no action by Parent or arrangement any Parent Subsidiary with respect to matters specifically addressed by any other provision of this Section 5.02 shall be deemed a breach of this Section 5.02(a) unless such action would constitute a breach of one or more of such other provisions; (b) neither Parent nor any Parent Subsidiary shall amend or otherwise change its Certificate of Incorporation or By-Laws or equivalent organizational documents; (c) neither Parent nor any Parent Subsidiary shall issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock of Parent or any Parent Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Parent or any Parent Subsidiary, except for (i) the issuance of a maximum of 5,177,275 shares of Parent Common Stock issuable pursuant to Parent Stock Options outstanding on the date hereof in accordance with the terms thereof, (ii) the issuance, in the ordinary course of business and consistent with past practice, of Parent Stock Options to purchase a maximum of 500,000 shares of Parent Common Stock pursuant to Parent Stock Option Plans in effect on the date of this Agreement and the shares of Parent Common Stock issuable pursuant to such Parent Stock Options, in accordance with the terms of the Parent Stock Option Plans, (iii) issuances for Parent's Stock Purchase Savings Plan, (iv) issuances for Parent's Employee Stock Purchase Plan and (v) issuances by a direct or indirect wholly owned subsidiary of Parent of capital stock to such subsidiary's parent; (d) neither Parent nor any Parent Subsidiary shall declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of the foregoing its capital stock, other than dividends by a direct or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement indirect wholly owned subsidiary of Parent to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with itsuch subsidiary's parent; (e) neither Parent nor any Parent Subsidiary shall reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, except for (i) any such transaction by a wholly owned subsidiary of Parent that remains a wholly owned subsidiary of Parent after the Company will notconsummation of such transaction and (ii) ordinary course purchases for use in connection with Parent's Stock Purchase Savings Plan; (f) neither Parent nor any Parent Subsidiary shall (i) acquire or dispose of (including, nor will it without limitation, by merger, consolidation, or acquisition or disposition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, other than (A) pursuant to the definitive agreements listed in Section 5.02(f) of the Parent Disclosure Letter, (B) the acquisition or disposition of assets in the ordinary course of business consistent with past practice not in connection with acquiring a business, (C) other such acquisitions involving the payment solely of cash consideration, such cash consideration not to exceed $50,000,000 in the aggregate, and (D) other such dispositions involving the receipt solely of cash consideration, such cash consideration not to exceed $10,000,000 in the aggregate, (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances, except for (A) indebtedness incurred in the ordinary course of business and consistent with past practice and (B) indebtedness of Parent to a direct or indirect wholly owned Parent Subsidiary or indebtedness of a direct or indirect wholly owned Parent Subsidiary to Parent or another direct or indirect wholly owned Parent Subsidiary; (iii) authorize any director capital expenditure, other than capital expenditures, for Parent and the Parent Subsidiaries as a whole, in an aggregate amount not exceeding the sum of (A) $95,000,000, the amount budgeted by Parent for 1999, and (B) $10,000,000; or authorize (iv) pledge or permit any officer or employee encumber assets of Parent or any attorneyParent Subsidiary, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage except in any negotiations concerning, any Acquisition Proposal (as defined below for purposes the ordinary course of this paragraph). The Company will promptly advise Parent orally business and in writing a manner consistent with past practice; (g) neither Parent nor any Parent Subsidiary shall change its methods of accounting in effect at December 31, 1998, except as required by changes in GAAP or the accounting rules and regulations of the SEC; (h) neither Parent nor any such inquiries or proposals Parent Subsidiary shall take any action that would result in (or requests for informationi) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoingrepresentations or warranties of Parent set forth in this Agreement that are qualified as to materiality becoming untrue, (ii) any of such representations or warranties that are not so qualified becoming untrue in any material respect or (iii) except as otherwise permitted by Section 6.04, any of the conditions to the Merger set forth in Article VII not being satisfied; and (i) neither Parent nor any Parent Subsidiary shall authorize or enter into any agreement to do anything prohibited by Sections 5.02(b) through (h).

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate Articles of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Common Stock; (iiB) amend its Certificate articles of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in the Disclosures this Agreement; or (iiiC) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, Stock except to issue shares of Company Common Stock in connection with any matter relating to the DisclosuresExempt Issuances; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;; and (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 5.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary course; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (iiB) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iiiC) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; Disclosures (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (vE) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (div) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (ev) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “"Acquisition Proposal” " shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 SECTION 5.01. Conduct of Business by the Company Pending the Merger. Prior to The Company agrees that, between the date of this Agreement and the Effective Time, except as contemplated by any other provision of this Agreement, unless Parent or Acquisition Corp. shall otherwise agree consent in writing writing: (i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with past practice; and (ii) the Company shall use its reasonable best efforts to preserve substantially intact its business organization, to keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase amend or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend change its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures Laws or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stockequivalent organizational documents; (cb) issue, sell, pledge, dispose of, grant, encumber, or authorize the Company shall not issuance, sale, pledge, disposition, grant or encumbrance of, (i) issue or agree to issue any additional shares ofof its capital stock of any class, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company Common Stock, or any Company Subsidiary (except to issue for the issuance of shares of Company Common Stock in connection with any matter relating issuable pursuant to the Disclosures; Company Stock Options and Warrants outstanding on the date of this Agreement or the issuance in the ordinary course of business and consistent with past practice) or (ii) any material assets of the Company or any Company Subsidiary, except in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (i) acquire (including, without limitation, by merger, consolidation, or dispose acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any fixed assets person, or acquire make any loans or dispose advances, except for indebtedness incurred in the ordinary course of business and consistent with past practice; (iii) enter into any other substantial assets contract or agreement material to the business, results of operations or financial condition of the Company and the Company Subsidiaries taken as a whole other than in the ordinary course of business, consistent with past practice; or (iiiiv) incur additional Indebtedness enter into or amend any other liabilities contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.01(e); (f) increase the compensation payable or to become payable to its employees, except for increases in accordance with past practices, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director or employee of the Company or any Company Subsidiary, except for employment or severance agreements in accordance with past practice, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other transaction plan, agreement, trust, fund, policy or arrangement for the benefit of any director or employee; or (g) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures. SECTION 5.02. Conduct of Business by Parent Pending the Merger. Parent agrees that, between the date of this Agreement and the Effective Time, except as contemplated by any other provision of this Agreement, unless the Company shall otherwise consent in writing (such consent not to be unreasonably withheld or delayed): (i) the business of the Parent and the Parent Subsidiaries shall be conducted only in, and Parent and the Parent Subsidiaries shall not take any action except in the ordinary course of business and in a manner consistent with past practice; and (ii) Parent shall use its reasonable best efforts to preserve substantially intact its business organization, to keep available the services of the current officers, employees and consultants of Parent and the Parent Subsidiaries and to preserve the current relationships of Parent and the Parent Subsidiaries with customers, suppliers and other persons with which Parent or any Parent Subsidiary has significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement, neither Parent nor any Parent Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of the Company (such consent not to be unreasonably withheld): (a) amend or otherwise change its Certificate of Incorporation or By-Laws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of its capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Parent or any Parent Subsidiary (except for the issuance of shares of Parent Common Stock issuable pursuant to the Parent Stock Options outstanding on the date of this Agreement or the issuance in the ordinary course of business and consistent with past practice, or (ii) any material assets of Parent or any Parent Subsidiary, except in the ordinary course of business and in a manner consistent with past practice; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, except for indebtedness incurred in the ordinary course of business and consistent with past practice; (iii) enter into any contract or agreement material to the business, results of operations or financial condition of Parent and the Parent Subsidiaries taken as a whole other than in the ordinary course of business, consistent with past practice; or (iv) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.02(e); (f) increase the compensation payable or to become payable to its officers or employees, except for increases in accordance with respect to past practices in salaries or wages of employees of Parent or any Parent Subsidiary who are not officers of the foregoing Parent, or (v) except as contemplated by this Agreementgrant any severance or termination pay to, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any employment or severance agreement with, any director, officer or other material business combination;employee of Parent or any Parent Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; or (dg) the Company shall use its best efforts to preserve intact the business organization of the Companytake any action, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease reasonable and cause to be terminated any existing activitiesusual actions in the ordinary course of business and consistent with past practice, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; andaccounting policies or procedures.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 4.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary course; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (iiB) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures laws; or (iiiC) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock;, other than the 4.15-for-1 forward stock split of shares of Parent Common Stock (the "Parent Stock Split"). (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosuresexercise of stock options outstanding on the date hereof; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (vE) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (div) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it;; and (ev) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “"Acquisition Proposal” " shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 5.1 Conduct of Business by the Company NeighborhoodFind Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. MonsterDaata shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company NeighborhoodFind shall be conducted only in the ordinary course; (bii) the Company NeighborhoodFind shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockNeighborhoodFind Interests; (iiB) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures LLC Agreement; or (iiiC) split, combine or reclassify the outstanding Company Common Stock NeighborhoodFind Interests or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stockNeighborhoodFind Interests; (ciii) the Company NeighborhoodFind shall not (iA) issue or agree to issue any additional shares membership interests of, or options, warrants or rights of any kind to acquire any shares membership interests of, Company Common Stock, except NeighborhoodFind (other than issuances of interests to issue shares Avalon Equity Fund L.P. or reallocations of Company Common Stock interests between NeighborhoodFind's members in connection with any matter relating to the Disclosuresconsideration for additional working capital); (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of businesstransaction; (ivD) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (vE) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (div) NeighborhoodFind and the Company Member Representative shall use its all of their best efforts to preserve intact the business organization of the CompanyNeighborhoodFind, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (ev) the Company NeighborhoodFind will not, nor will it authorize any director manager or Member or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company NeighborhoodFind will promptly advise Parent MonsterDaata orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “"Acquisition Proposal” " shall mean any proposal for a merger or other business combination involving the Company NeighborhoodFind or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company NeighborhoodFind will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 4.1 Conduct of Business by the Company Pending the Merger. Merger Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation Formation or By-laws except to effectuate the transactions contemplated in the Disclosures Limited Liability Company Agreement; or (iii) split, combine or reclassify the outstanding Company Common Stock Units or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “"Acquisition Proposal” " shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) except as disclosed in the Memorandum, the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Capital Stock; (iiB) amend its Certificate certificate of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in this Agreement or the Disclosures Memorandum; or (iiiC) split, combine or reclassify the outstanding Company Common Capital Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) except as disclosed in the Memorandum, the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Capital Stock, except to issue shares of Company Common Capital Stock in connection with any matter relating to the Disclosuresexercise of Common Stock Options; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it;; and (ev) the Company will notnot enter into any new employment agreements with any of its officers or employees or grant any increases in the compensation or benefits of its officers and employees or amend any employee benefit plan or arrangement other than in the ordinary course of business and consistent with past practice. Section 6.2 Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement: (i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice; (ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and (iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith. (iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp.; (v) neither Parent nor Acquisition Corp. will, nor will it they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company Parent will promptly advise Parent orally and the Company in writing of any such inquiries or proposals Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “"Acquisition Proposal” " shall mean any proposal for a merger or other business combination involving the Company Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in it either of them or any material assets of it either of them other than as contemplated by this Agreement. The Company Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 5.1 Conduct of Business by the Company Pending the MergerMerger . Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary course; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (iiB) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures laws; or (iiiC) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (vE) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;; and (div) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Capital Stock; (iiB) amend its Certificate certificate of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in the Disclosures this Agreement; or (iiiC) split, combine or reclassify the outstanding Company Common Capital Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Capital Stock, except to issue shares of Company Common Capital Stock in connection with any matter relating to the Disclosuresexercise of Common Stock Options; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;; and (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section SECTION 5.01 Conduct of Business by the Company and the Subsidiaries ------------------------------------------------------- Pending the Merger. Prior to During the period from the date of this Agreement and ------------------ continuing until the earlier of the termination of this Agreement or the Effective Time, unless the Company agrees, and shall cause each Subsidiary, (except to the extent that Parent or Acquisition Corp. shall otherwise agree consent in writing writing), to carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conducted, to pay its debts and taxes when due (subject to good faith disputes over such debts or taxes), to pay or perform other obligations when due, and to the extent consistent with such business, use all reasonable efforts consistent with past practices and policies to preserve intact its present business organization, to keep available the services of its present officers and key employees and consultants and to preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be unimpaired at the Effective Time. The Company shall promptly notify Parent of any event or occurrence not in the ordinary course of business of the Company. By way of amplification and not limitation, except as otherwise contemplated by this AgreementAgreement or as set forth in Section 5.01 of the Company Disclosure Schedule, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do or propose to do, any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld: (a) the business amend or otherwise change its Articles of the Company shall be conducted only in the ordinary courseIncorporation or Bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, encumber, authorize or propose the Company shall not (i) directly issuance, sale, pledge, disposition, grant or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire encumbrance of any shares of its capital stock; (ii) amend its Certificate stock of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares ofclass, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock, or any other ownership interest (including, without limitation, any phantom interest) of the Company Common Stockor any Subsidiary, except to issue shares of Company Common Stock in connection with any matter relating pursuant to the Disclosures; terms of options, warrants or preferred stock outstanding on the date of this Agreement; (iic) acquire sell, lease, license, pledge, grant, encumber or otherwise dispose of any fixed of its properties or assets which are material, individually or acquire or dispose of any other substantial assets other than in the aggregate, to its business, except in the ordinary course of business; ; (iiid) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of its capital stock; (e) split, combine, subdivide, redeem or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of such party, or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party; (f) acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets thereof; (g) institute or settle any Legal Proceeding; (h) incur additional Indebtedness any indebtedness for borrowed money or issue any other liabilities debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances; (i) authorize any capital expenditure in excess of $25,000, individually or in the aggregate; (j) enter into any lease or contract for the purchase or sale of any property, real or, for purchases in excess of $25,000 individually or in the aggregate, personal; (k) waive or release any material right or claim; (l) increase the compensation payable or to become payable to its officers or employees, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or employee, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other transaction plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; (m) accelerate, amend or change the period of exercisability or the vesting schedule of restricted stock or options granted under any employee stock plan or agreement or authorize cash payments in exchange for any options granted under any of such plan or agreement except as specifically required by the terms of such plans or agreements in effect as of the date of this Agreement and except for the waiver of acceleration of Company Options; (n) extend any offers for the provision of services to potential employees, consultants or independent contractors other than in the ordinary course offers of business; employment to potential employees lower than director-level that are "at will" and do not provide for severance obligations; (ivo) amend or terminate any Material Contract; (p) enter into into, amend or, except as contemplated by this Agreement, terminate any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.01; (q) other than in the ordinary course of business consistent with past practice, enter into any licensing, distribution, OEM, sponsorship, advertising, merchant program contracts, agreements or obligations, or other similar contracts, agreements, or obligations, which may not be cancelled by the Company upon notice of 30 days or less without penalties; (r) enter into any contract or agreement material to the business, results of operations or financial condition of the Company; (s) take any action, other than reasonable and usual action in the ordinary course of business and consistent with past practice, with respect to accounting policies, principles or procedures; (t) make or change any material Tax or accounting election, change any annual accounting period, adopt or change any accounting method, file any amended Return, enter into any closing agreement, settle any material Tax claim or assessment relating to the Company or any Subsidiary, surrender any material right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or any Subsidiary; (u) (i) sell, assign, lease, terminate, abandon, transfer, permit to be encumbered, otherwise dispose of or grant any security interest in any item of Owned Intellectual Property or Licensed Intellectual Property, in whole or in part, (ii) grant any license with respect to any Owned Intellectual Property, other than the license of Company Software to customers of the foregoing Company or any Subsidiary to whom the Company or any Subsidiary licenses such Company Software in the ordinary course of business, (iii) develop, create or invent any Intellectual Property jointly with any third party, or (iv) disclose, or allow to be disclosed, any confidential Owned Intellectual Property, unless such Owned Intellectual Property is subject to a confidentiality or non-disclosure covenant protecting against disclosure thereof; (v) except as contemplated by make (or become obligated to make) any bonus payments to any of its officers or employees; (w) revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable; (x) fail to maintain its equipment and other assets in good working condition and repair according to the standards it has maintained up to the date of this Agreement, enter into any contract, agreement, commitment or arrangement subject only to dissolve, merge, consolidate or enter into any other material business combinationordinary wear and tear; (dy) the take any action or fail to take any action that would cause there to be a Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with itMaterial Adverse Effect; (ez) the Company will not, nor will it authorize any director or authorize or permit any officer insurance policy naming it as a beneficiary or employee a loss payable payee to be cancelled or terminated without notice to Parent and Merger Sub; (aa) write off as uncollectible, or establish any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries extraordinary reserve with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger account receivable or other business combination involving the Company or for the acquisition indebtedness in excess of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore $10,000 with respect to a single matter, or in excess of $25,000 in the aggregate; or (bb) take, or agree in writing or otherwise to take, any of the foregoing; andactions described in Sections (a) through (aa) above, or any action which is reasonably likely to make any of the Company's representations or warranties contained in this Agreement untrue or incorrect on the date made (to the extent so limited) or as of the Effective Time.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Capital Stock; (iiB) amend its Certificate certificate of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in this Agreement or the Disclosures Memorandum; or (iiiC) split, combine or reclassify the outstanding Company Common Capital Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Capital Stock, except to issue shares of Company Common Capital Stock in connection with any matter relating the exercise of Common Stock Options, Series B Warrants or Series C Warrants or the conversion of Series C Bridge Notes and except to the Disclosuresissue up to $1,000,000 of additional Series C Bridge Notes (and corresponding warrants to purchase Company Series C Preferred Stock) in its sole discretion; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it;; and (ev) the Company will notnot enter into any new employment agreements with any of its officers or employees or grant any increases in the compensation or benefits of its officers and employees or amend any employee benefit plan or arrangement other than in the ordinary course of business and consistent with past practice. Section 6.2 Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement: (i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice; (ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and (iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith. (iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp.; (v) neither Parent nor Acquisition Corp. will, nor will it they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company Parent will promptly advise Parent orally and the Company in writing of any such inquiries or proposals Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “"Acquisition Proposal” " shall mean any proposal for a merger or other business combination involving the Company Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in it either of them or any material assets of it either of them other than as contemplated by this Agreement. The Company Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws Charter except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; Disclosures (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures by this Agreement or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosuresthis Agreement; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 4.1 Conduct of Business by the Company Pending the Merger. Merger Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate Articles of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures laws; or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “"Acquisition Proposal” " shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section SECTION 5.01 Conduct of Business by the Company Pending the Merger. Prior to During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, unless the Company agrees (except to the extent that Parent or Acquisition Corp. shall otherwise agree consent in writing writing), to carry on its business in the usual, regular and ordinary course and in substantially the same manner as previously conducted, to pay its debts and Taxes when due (subject to good faith disputes over such debts or Taxes), to pay or perform other obligations when due and, to the extent consistent with such business, to use all reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and consultants and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be unimpaired at the Effective Time. The Company shall promptly notify Parent of any event or occurrence not in the ordinary course of business of the Company. By way of amplification and not limitation, except as otherwise specifically contemplated by this AgreementAgreement or as specifically set forth in Section 5.01 of the Company Disclosure Schedule, the Company shall not, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) the business amend or otherwise change its Articles of the Company shall be conducted only in the ordinary courseIncorporation or Bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, encumber, authorize or propose the Company shall not (i) directly issuance, sale, pledge, disposition, grant or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire encumbrance of any shares of its capital stock; (ii) amend its Certificate stock of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares ofclass, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock or any other ownership interest (including, without limitation, any phantom interest), of the Company, except pursuant to the terms of options, warrants or preferred stock outstanding on the date of this Agreement; (c) sell, lease, license, pledge, grant, encumber or otherwise dispose of any of its properties or assets which are material, individually or in the aggregate, to its business; (d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (e) split, combine, subdivide, redeem or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, Company Common Stock, except to issue in lieu of or in substitution for shares of Company Common Stock its capital stock, or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any matter relating to the Disclosures; termination of service by such party; (iif) acquire (including, without limitation, by merger, consolidation, or dispose acquisition of stock or assets) any interest or any assets in any corporation, partnership, other business organization or any division thereof; (g) institute or settle any Legal Proceeding; (h) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any fixed assets person, or acquire make any loans or dispose advances; (i) authorize any capital expenditure in excess of $10,000, individually or in the aggregate; (j) enter into any lease or contract for the purchase or sale of any other substantial assets other than in property, real or personal; (k) waive or release any material right or claim; (l) increase, or agree to increase, the ordinary course of business; (iii) incur additional Indebtedness compensation payable, or to become payable, to its officers or employees, or grant any other liabilities severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or other transaction employees, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other than Plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that the foregoing provisions of this subsection shall not apply to any amendments to employee benefit plans described in Section 3(3) of ERISA that may be required by Law; (m) accelerate, amend or change the period of exercisability or the vesting schedule of restricted stock or Company Options granted under any option plan, employee stock plan or other agreement or authorize cash payments in exchange for any Company Options granted under any of such plans, except as specifically required by the terms of such plans or any such agreement or any related agreement in effect as of the date of this Agreement and disclosed in the ordinary course Company Disclosure Schedule; (n) extend any offers of business; employment to potential employees, consultants or independent contractors or terminate any existing employment relationships; (ivo) amend or terminate any Material Contract; (p) enter into into, amend or terminate any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.01; (q) other than in the ordinary course of business consistent with past practice, enter into any licensing, distribution, OEM agreements, sponsorship, advertising, merchant program or other similar contracts, agreements or obligations; (r) enter into any contract or agreement material to the business, results of operations or financial condition of the Company; (s) pay, discharge or satisfy any material claim, liability or obligation (absolute, accrued, asserted, unasserted, contingent or otherwise); (t) take any action, with respect to accounting policies, principles or procedures; (u) make or change any Tax or accounting election, change any annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Company, surrender any right to claim refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company, or take any other action or omit to take any action that would have the effect of increasing the Tax liability of the Company or Parent; (i) sell, assign, lease, terminate, abandon, transfer, permit to be encumbered or otherwise dispose of or grant any security interest in and to any item of the Company Intellectual Property, in whole or in part, (ii) grant any license with respect to any Company Intellectual Property, other than a license of Software granted to customers of the foregoing Company to whom the Company licenses such Software in the ordinary course of business, (iii) develop, create or invent any Intellectual Property jointly with any third party, or (viv) except as contemplated by disclose, or allow to be disclosed, any confidential Company Intellectual Property, unless such Company Intellectual Property is subject to a confidentiality or non-disclosure covenant protecting against disclosure thereof; (w) make (or become obligated to make) any bonus payments to any of its officers or employees; (x) revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable; (y) fail to maintain its equipment and other assets in good working condition and repair according to the standards it has maintained up to the date of this Agreement, enter into any contract, agreement, commitment or arrangement subject only to dissolve, merge, consolidate or enter into any other material business combinationordinary wear and tear; (dz) the take any action or fail to take any action that would cause there to be a Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with itMaterial Adverse Effect; (eaa) the Company will not, nor will it authorize any director or authorize or permit any officer insurance policy naming it as a beneficiary or employee a loss payable payee to be cancelled or terminated without notice to Parent; (bb) write off as uncollectible, or establish any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries extraordinary reserve with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger account receivable or other business combination involving the Company or for the acquisition indebtedness in excess of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore $5,000 with respect to a single matter, or in excess of $10,000 in the aggregate; or (cc) take, or agree in writing or otherwise to take, any of the foregoing; andactions described in subsections (a) through (bb) above, or any action which is reasonably likely to make any of the Company's representations or warranties contained in this Agreement untrue or incorrect on the date made (to the extent so limited) or as of the Effective Time.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary course; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Capital Stock; (iiB) amend its Certificate certificate of Incorporation incorporation or By-laws Bylaws except to effectuate the transactions contemplated in the Disclosures this Agreement; or (iiiC) except as set forth on Schedule 6.1(ii), split, combine or reclassify the outstanding Company Common Capital Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Capital Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than except in the ordinary course of business; (ivD) enter into any contractbinding Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractbinding Contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;; and (div) the Company shall use its best commercially reasonable efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) except with respect to (x) the issuance of Company Common Stock in connection with the conversion of Company Preferred Stock immediately prior to the Effective Time, and (y) the Stock Dividend, the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Capital Stock; (iiB) amend its Certificate certificate of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in the Disclosures this Agreement; or (iiiC) split, combine or reclassify the outstanding Company Common Capital Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) except with respect to (x) the issuance of Company Common Stock in connection with the conversion of Company Preferred Stock immediately prior to the Effective Time, and (y) the Stock Dividend, the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Capital Stock, except to issue shares of Company Common Capital Stock in connection with any matter relating the exercise of Common Stock Options and except as disclosed to Parent with respect to the Disclosuresissuance and sale of up to $250,000 of capital shares to be issued at the Closing; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;; and (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger5.1 CONDUCT OF BUSINESS BY THE COMPANY PENDING THE MERGER. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures laws; or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” "ACQUISITION PROPOSAL" shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 5.1 Conduct of Business by the Company Pending the MergerMerger . Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate Articles of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures laws; or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this AgreementAgreement or the other agreements contemplated hereby: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated herein or therein or in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter contemplated herein or therein or relating to the Disclosures; Disclosures (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it;; and (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate Articles of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; Disclosures (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 SECTION 5.01. Conduct of Business by the Company Pending the Merger. Prior to Except as contemplated by this Agreement, the Company agrees that, between the date of this Agreement and the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree consent in writing (which consent shall not be unreasonably withheld or delayed), the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business; and the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Company Subsidiaries, maintain their rights and keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with customers, licensors, licensees and other persons with which the Company or any Company Subsidiary has significant business relations and where the loss of any such relationship would, either individually or in the aggregate, have a Material Adverse Effect. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, neither the Company nor any of its subsidiaries shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase amend or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend change its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures Laws or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stockequivalent organizational documents; (cb) the Company shall not transfer, issue, sell, pledge, lease, license, dispose, grant, encumber, or authorize for transfer, issuance, sale, pledge, lease, license, disposition, grant or encumbrance (i) issue or agree to issue any additional shares ofof its stock of any class, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company Common Stock, except to issue shares of or any Company Common Stock in connection with any matter relating to the Disclosures; Subsidiary or (ii) acquire any assets of the Company or dispose of any fixed assets or acquire or dispose of any other substantial assets other than Company Subsidiary except in the ordinary course of business; ; (iiic) incur additional Indebtedness authorize, declare, set aside, make or pay any dividend payment or other distribution, payable in cash, stock, property or otherwise, with respect to any of its stock, except for regular quarterly dividends on Company Common Stock declared and paid in cash at times consistent with past practice in an aggregate amount not in excess of $0.025 per share of Company Common Stock; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (e) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other liabilities business combination) any interest in any corporation, partnership, other business organization or any division thereof or all or substantially all of the assets of any such entity, except for ordinary course organizations affiliated to a purchasing group of the Company or any Company Subsidiary; (f) incur any material indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse the obligations of any person, or make any loans, advances or capital contributions to any person or grant any security interest in any of its assets except in the ordinary course of business if the same would not be reasonably likely to have a Material Adverse Effect; (g) enter into any lease for the principal location of the Company in New York City; (h) authorize, or make any commitment with respect to, any capital expenditures that are, in the aggregate, in excess of $500,000 for the Company and its subsidiaries taken as a whole; (i) other than to facilitate the consummation of the transactions contemplated hereby, waive any stock repurchase or acceleration rights in any material respect, amend or change the terms of any options or restricted stock in any material respect, or reprice options granted under any Company Stock Option Plan or authorize cash payments in exchange for any options granted under any such plans (except to implement the amendments to the Performance Stock Plan previously authorized by the Board); (i) increase the compensation payable or to become payable to its directors, officers or employees (except for increases in the ordinary course of business and consistent and with current budgets, as disclosed in Section 5.01(j) of the Company Disclosure Schedule, in salaries or wages of employees of the Company or any Company Subsidiary or directors or officers of the Company or any Company Subsidiary who are 38 employed at will by the Company or such Company Subsidiaries), (ii) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other transaction employee of the Company or any Company Subsidiary (except in the ordinary course of business to any employee of the Company or any Company Subsidiary who are not directors or officers of the Company or any Company Subsidiary), or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund or policy for the benefit of any director, officer or employee, (iii) take any affirmative action to accelerate the vesting of any stock-based compensation, or (iv) hire or retain any person other than as an employee at will if such person's aggregate annual or annualized compensation is expected to be in excess of $100,000; (k) take any action with respect to accounting principles or procedures, other than reasonable and usual actions in the ordinary course of business or required actions pursuant to a change in applicable statutory or generally accepted accounting principles; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) of more than $500,000 individually or in the aggregate, other than the payment, discharge or satisfaction, in the ordinary course of business; , of liabilities reflected or reserved against in the Company Balance Sheet or subsequently incurred in the ordinary course of business; (ivm) enter into take any contract, agreement, commitment or arrangement with respect to action that results in any of the foregoing or conditions to the Merger set forth in Article VII not being satisfied, except any action as may be required by applicable Law; or (vn) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement announce an intention to dissolve, merge, consolidate authorize or enter into any other material business combination; (d) the Company shall use its best efforts agreement or otherwise make any commitment to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to do any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section SECTION 5.01 Conduct of Business by the Company Pending the Merger. Prior to ----------------------------------------------------- During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, unless the Company agrees (except to the extent that Parent or Acquisition Corp. shall otherwise agree consent in writing writing), to carry on its business in the ordinary course of business consistent with past practices and to use all commercially reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and consultants and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be unimpaired at the Effective Time. The Company shall promptly notify Parent of any event or occurrence not in the ordinary course of business of the Company. By way of amplification and not limitation, except as otherwise specifically contemplated by this AgreementAgreement or as specifically set forth in Section 5.01 of the Company Disclosure Schedule, the Company shall not, between the date of this Agreement and the Effective Time, directly or indirectly, do any of the following without the prior written consent of Parent: (a) amend or otherwise change its Certificate of Incorporation or Bylaws or equivalent organizational documents, except as specifically contemplated by this Agreement or the business of the Company shall be conducted only in the ordinary courseVoting Agreement; (b) issue, sell, pledge, dispose of, grant, encumber, authorize or propose the Company shall not (i) directly issuance, sale, pledge, disposition, grant or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire encumbrance of any shares of its capital stock; (ii) amend its Certificate stock of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares ofclass, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock or any other ownership interest (including, without limitation, any phantom interest), of the Company, except pursuant to the terms of options, warrants or preferred stock outstanding on the date of this Agreement; (c) sell, lease, license, pledge, grant, encumber or otherwise dispose of any of its properties or assets which are material, individually or in the aggregate, to its business; (d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (e) split, combine, subdivide, redeem or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, Company Common Stock, except to issue in lieu of or in substitution for shares of Company Common Stock its capital stock, or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants at cost in accordance with agreements providing for the repurchase of shares in connection with any matter relating termination of service by such party and except to the Disclosures; extent required to complete the Merger; (iif) acquire (including, without limitation, by merger, consolidation, or dispose acquisition of stock or assets) any interest or any assets in any corporation, partnership, other business organization or any division thereof; (g) institute or settle any Legal Proceeding (other than those set forth on Section 3.10 of the Company Disclosure Schedule); (h) other than pursuant to the provisions of Section 6.01(d) regarding the issuance of promissory notes, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any fixed assets person, or acquire make any loans or dispose of any other substantial assets other than advances, except for advances to employees in the ordinary course of business; ; (iiii) incur additional Indebtedness authorize any capital expenditure in excess of $25,000, individually or in the aggregate; (j) enter into any other liabilities lease or contract for the purchase or sale of any property, real or personal; (k) waive or release any material right or claim; (l) except as specifically contemplated by this Agreement, increase, or agree to increase, the compensation payable, or to become payable, to its officers or employees, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or other transaction employees, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other than Plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that the foregoing provisions of this subsection shall not apply to any amendments to employee benefit plans described in Section 3(3) of ERISA that may be required by Law; (m) accelerate, amend or change the period of exercisability or the vesting schedule of restricted stock or Company Options granted under any option plan, employee stock plan or other agreement or authorize cash payments in exchange for any Company Options granted under any of such plans except as specifically required by the terms of such plans or any such agreement or any related agreement in effect as of the date of this Agreement and disclosed in the ordinary course Company Disclosure Schedule; (n) extend any offers of business; employment to potential employees, consultants or independent contractors or terminate any existing employment relationships; (ivo) amend or terminate any Material Contract; (p) enter into any contract or agreement material to the business, results of operations or financial condition of the Company; (q) enter into, amend or terminate any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.01; (r) other than in the ordinary course of business consistent with past practice, enter into any licensing, distribution, OEM agreements, sponsorship, advertising, merchant program or other similar contracts, agreements or obligations; (s) pay, discharge or satisfy any material claim, liability or obligation (absolute, accrued, asserted, unasserted, contingent or otherwise), except in the ordinary course of business, consistent with past practice; (t) take any action, with respect to accounting policies, principles or procedures; (u) make or change any Tax or accounting election, change any annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Company, surrender any right to claim refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company, or take any other action or omit to take any action that would have the effect of increasing the Tax liability of the Company or Parent; (i) sell, assign, lease, terminate, abandon, transfer, permit to be encumbered or otherwise dispose of or, except in connection with the issuance of promissory notes pursuant to the provisions of Section 6.01(d), grant any security interest in and to any item of the Company Intellectual Property, in whole or in part (and provided that such security interest must be terminable upon repayment or conversion of the indebtedness to which it relates), (ii) grant any license with respect to any Company Intellectual Property, other than a license of Software granted to customers of the foregoing Company to whom the Company licenses such Software in the ordinary course of business, (iii) develop, create or invent any Intellectual Property jointly with any third party, or (viv) disclose, or allow to be disclosed, any confidential Company Intellectual Property, unless such Company Intellectual Property is subject to a confidentiality or non-disclosure covenant protecting against disclosure thereof; (w) except as specifically contemplated by this AgreementAgreement or otherwise pursuant to a previously adopted bonus plan disclosed on the Company Disclosure Schedule, enter into make (or become obligated to make) any contract, agreement, commitment bonus payments to any of its officers or arrangement to dissolve, merge, consolidate or enter into any other material business combinationemployees; (dx) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service revalue any of its present officers and key employeesassets, and to preserve including writing down the good will value of those having business relationships with itinventory or writing off notes or accounts receivable except in the ordinary course of business; (ey) fail to maintain its equipment and other assets in good working condition and repair according to the Company will notstandards it has maintained up to the date of this Agreement, nor will it authorize any director or authorize or subject only to ordinary wear and tear; (z) permit any officer insurance policy naming it as a beneficiary or employee a loss payable payee to be cancelled or terminated without notice to Parent; (aa) write off as uncollectible, or establish any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries extraordinary reserve with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger account receivable or other business combination involving the Company or for the acquisition indebtedness in excess of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore $10,000 with respect to a single matter, or in excess of $25,000 in the aggregate; (bb) make any loans, advances or capital contributions to, or investments in, any other person or third party, other than travel loans or advances in the ordinary course of business consistent with past practice; (cc) knowingly take any action or fail to take any reasonable action that would cause there to be a Company Material Adverse Effect; or (dd) take, or agree in writing or otherwise to take, any of the foregoing; andactions described in subsections (a) through (cc) above, or any action which is reasonably likely to make any of the Company's representations or warranties contained in this Agreement untrue or incorrect on the date made (to the extent so limited) or as of the Effective Time. Notwithstanding anything to the contrary herein, but subject to the terms of any promissory notes issued to Parent as set forth in Section 6.01(d) below, without Parent's consent, the Company may (a) issue promissory notes to parties other than Parent in a principal amount not to exceed $1,000,000, the terms of which provide that (i) payment of the outstanding principal and any accrued interest under any such note will constitute full repayment under such note and (ii) upon such repayment, any security interest in the Company's assets related thereto is terminated and (b) settle the legal proceedings set forth on Section 3.10 of the Company Disclosure Schedule in the manner the Company deems appropriate.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 5.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures Bylaws; or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best commercially reasonable efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material all or a significant portion of the assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 5.1 Conduct of Business by the Company Pending the MergerMerger . Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures laws; or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 SECTION 5.01. Conduct of Business by the Company Pending the Merger. Prior to Except as contemplated by this Agreement, the Company agrees that, between the date of this Agreement and the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree consent in writing (which consent shall not be unreasonably withheld or delayed), the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business; and the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Company Subsidiaries, maintain their rights and keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with customers, licensors, licensees and other persons with which the Company or any Company Subsidiary has significant business relations and where the loss of any such relationship would, either individually or in the aggregate, have a Material Adverse Effect. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, neither the Company nor any of its subsidiaries shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase amend or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend change its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures Laws or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stockequivalent organizational documents; (cb) the Company shall not transfer, issue, sell, pledge, lease, license, dispose, grant, encumber, or authorize for transfer, issuance, sale, pledge, lease, license, disposition, grant or encumbrance (i) issue or agree to issue any additional shares ofof its stock of any class, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Company Subsidiary or (ii) any assets of the Company or any Company Subsidiary except in the ordinary course of business ; (c) authorize, declare, set aside, make or pay any dividend payment or other distribution, payable in cash, stock, property or otherwise, with respect to any of its stock, except for regular quarterly dividends on Company Common Stock declared and paid in cash at times consistent with past practice in an aggregate amount not in excess of $0.025 per share of Company Common Stock; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (e) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any interest in any corporation, partnership, other business organization or any division thereof or all or substantially all of the assets of any such entity, except for ordinary course organizations affiliated to a purchasing group of the Company or any Company Subsidiary; (f) incur any material indebtedness for borrowed money or issue shares any debt securities or assume, guarantee or endorse the obligations of any person, or make any loans, advances or capital contributions to any person or grant any security interest in any of its assets except in the ordinary course of business if the same would not be reasonably likely to have a Material Adverse Effect; (g) enter into any lease for the principal location of the Company Common in New York City; (h) authorize, or make any commitment with respect to, any capital expenditures that are, in the aggregate, in excess of $500,000 for the Company and its subsidiaries taken as a whole; (i) other than to facilitate the consummation of the transactions contemplated hereby, waive any stock repurchase or acceleration rights in any material respect, amend or change the terms of any options or restricted stock in any material respect, or reprice options granted under any Company Stock Option Plan or authorize cash payments in connection with exchange for any matter relating options granted under any such plans (except to implement the amendments to the Disclosures; Performance Stock Plan previously authorized by the Board); (i) increase the compensation payable or to become payable to its directors, officers or employees (except for increases in the ordinary course of business and consistent and with current budgets, as disclosed in Section 5.01(j) of the Company Disclosure Schedule, in salaries or wages of employees of the Company or any Company Subsidiary or directors or officers of the Company or any Company Subsidiary who are 38 employed at will by the Company or such Company Subsidiaries), (ii) acquire grant any rights to severance or dispose termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary (except in the ordinary course of business to any employee of the Company or any Company Subsidiary who are not directors or officers of the Company or any Company Subsidiary), or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund or policy for the benefit of any fixed assets director, officer or acquire or dispose employee, (iii) take any affirmative action to accelerate the vesting of any other substantial assets stock-based compensation, or (iv) hire or retain any person other than as an employee at will if such person's aggregate annual or annualized compensation is expected to be in excess of $100,000; (k) take any action with respect to accounting principles or procedures, other than reasonable and usual actions in the ordinary course of business or required actions pursuant to a change in applicable statutory or generally accepted accounting principles; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) of more than $500,000 individually or in the aggregate, other than the payment, discharge or satisfaction, in the ordinary course of business; (iii) incur additional Indebtedness , of liabilities reflected or any other liabilities reserved against in the Company Balance Sheet or enter into any other transaction other than subsequently incurred in the ordinary course of business; ; (ivm) enter into take any contract, agreement, commitment or arrangement with respect to action that results in any of the foregoing or conditions to the Merger set forth in Article VII not being satisfied, except any action as may be required by applicable Law; or (vn) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement announce an intention to dissolve, merge, consolidate authorize or enter into any other material business combination; (d) the Company shall use its best efforts agreement or otherwise make any commitment to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to do any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section SECTION 5.01 Conduct of Business by the Company Pending the Merger. Prior to During ----------------------------------------------------- the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, unless the Company agrees (except to the extent that Parent or Acquisition Corp. shall otherwise agree consent in writing writing) to carry on its business in the usual, regular and ordinary course and in substantially the same manner as previously conducted, to pay its debts and Taxes when due (subject to good faith disputes over such debts or Taxes), to pay or perform other obligations when due and, to the extent consistent with such business, use all reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and consultants and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be unimpaired at the Effective Time. The Company shall promptly notify Parent of any event or occurrence not in the ordinary course of business of Company. By way of amplification and not limitation, except as otherwise contemplated by this AgreementAgreement or in Section 5.01 of the Company Disclosure Schedule, the Company shall not, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) the business amend or otherwise change its Certificate of the Company shall be conducted only in the ordinary courseIncorporation or Bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, encumber, authorize or propose the Company shall not (i) directly issuance, sale, pledge, disposition, grant or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire encumbrance of any shares of its capital stock; (ii) amend its Certificate stock of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares ofclass, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock or any other ownership interest (including, Company Common Stockwithout limitation, any phantom interest), of the Company, except to issue shares of Company Common Stock in connection with any matter relating pursuant to the Disclosures; terms of options, warrants or preferred stock outstanding on the date of this Agreement; (iic) acquire sell, lease, license, pledge, grant, encumber or otherwise dispose of any fixed of its properties or assets that are material, individually or acquire in the aggregate, to its business except for the license, sale or dispose encumbrance of any other substantial assets other than the Company's products in the ordinary course of business; , consistent with past practice; (iiid) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (e) split, combine, subdivide, redeem or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party; (f) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest or any assets in any corporation, partnership, other business organization or any division thereof; (g) institute or settle any Legal Proceeding; (h) incur additional Indebtedness any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, other liabilities than (i) advances for travel and expenses which are incurred in the ordinary course of business consistent with past practice, not material in amount and documented by receipts for the claimed amounts or (ii) any loans pursuant to the 401(k) Plan; (i) authorize any capital expenditure in excess of $10,000 individually or $25,000 in the aggregate; (j) enter into any other transaction other than lease or contract for the purchase or sale of any property, real or personal, except in the ordinary course of business; , consistent with past practice; (ivk) waive or release any material right or claim; (l) increase the compensation payable or to become payable to its officers or employees, except for increases in accordance with past practice in salaries or wages of its employees who are not its officers, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or other employees (other than the Company Severance Plan (as defined in Section 10.02)), or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; (m) accelerate, amend or change the period of exercisability or the vesting schedule of restricted stock or Company Options granted under any option plan, employee stock plan or other agreement or authorize cash payments in exchange for any Company Options granted under any of such plans, except as specifically required by the terms of such plans or any related agreement or any such agreement in effect as of the date of this Agreement and disclosed in the Company Disclosure Schedule or pursuant to the Company Severance Plan; (n) take any action to cause, the accelerated vesting and exercisability of the Company Options; (o) extend any offers of employment to potential employees, consultants or independent contractors; (p) amend or terminate any Material Contract, except in the ordinary course of business, consistent with past practice; (q) enter into into, amend or terminate any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.01; (r) other than in the ordinary course of business consistent with past practice, enter into any licensing, distribution, OEM agreements, sponsorship, advertising, merchant program or other similar contracts, agreements or obligations; (s) enter into any contract or agreement material to the business, results of operations or financial condition of the Company; (t) take any action, other than reasonable and usual action in the ordinary course of business and consistent with past practice, with respect to accounting policies, principles or procedures; (u) make or change any material Tax or accounting election, change any annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to Company, surrender any right to claim refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to Company, or take any other action or omit to take any action that would have the effect of increasing the Tax liability of the Company or Parent; (i) sell, assign, lease, terminate, abandon, transfer, permit to be encumbered or otherwise dispose of or grant any security interest in and to any item of the Company Intellectual Property, in whole or in part, (ii) grant any license with respect to any Company Intellectual Property, other than a license of Company software to customers of the foregoing Company to whom the Company licenses such software in the ordinary course of business, (iii) develop, create or (v) except as contemplated by invent any Intellectual Property jointly with any third party other than pursuant to agreements existing at the date of this Agreement, enter into or (iv) disclose, or allow to be disclosed, any contractconfidential Company Intellectual Property, agreement, commitment unless such Company Intellectual Property is subject to a confidentiality or arrangement to dissolve, merge, consolidate or enter into any other material business combinationnon-disclosure covenant protecting against disclosure thereof; (dw) make (or become obligated to make) any bonus payments to any of its officers or employees, other than the bonus payments identified on Section 5.01(w) of the Company shall use its best efforts Disclosure Schedule which the Company is obligated to preserve intact make pursuant to agreements existing at the business organization date of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with itthis Agreement; (ex) revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable; (y) fail to maintain its equipment and other assets in good working condition and repair according to the standards it has maintained up to the date of this Agreement, subject only to ordinary wear and tear; (z) take any action or fail to take any action where such action or failure to take action would reasonably be expected at the time of such action to cause there to be a Company will not, nor will it authorize any director or authorize or Material Adverse Effect; (aa) permit any officer insurance policy naming it as a beneficiary or employee a loss payable payee to be cancelled or terminated without notice to Parent; (bb) write off as uncollectible, or establish any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries extraordinary reserve with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger account receivable or other business combination involving the Company or for the acquisition indebtedness in excess of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore $10,000 with respect to a single matter, or in excess of $30,000 in the aggregate; or (cc) take, or agree in writing or otherwise to take, any of the foregoing; andactions described in Sections (a) through (bb) above, or any action that would reasonably be expected to make any of Company's representations or warranties contained in this Agreement untrue or incorrect in any material respect on the date made (to the extent so limited) or as of the Effective Time.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 4.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary course; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (iiB) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures laws; or (iiiC) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock;. (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosuresexercise of stock options outstanding on the date hereof; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (vE) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (div) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it;; and (ev) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Common Stock; (iiB) amend its Certificate articles of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in the Disclosures this Agreement; or (iiiC) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) Except as set forth in the Strathmore engagement, the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;; and (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Capital Stock; (iiB) amend its Certificate certificate of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in the Disclosures this Agreement; or (iiiC) split, combine or reclassify the outstanding Company Common Capital Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Capital Stock, except to issue shares of Company Common Capital Stock in connection with any matter relating the exercise of Common Stock Options and except as disclosed to Parent with respect to the Disclosuresissuance and sale of up to $250,000 of capital shares to be issued at the Closing; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;; and (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 SECTION 5.01. Conduct of Business by the Company Pending the Merger. Prior to . (a) The Company agrees that, between the date of this Agreement and the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree except as set forth in writing or as otherwise contemplated by this Agreement: (a) the business Section 5.01 of the Company Disclosure Schedule or as contemplated by any other provision of this Agreement, unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld or delayed): (i) the businesses of the Company and the Company Subsidiaries shall be conducted only in in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course;course of business and in a manner consistent with past practice; and (ii) the Company shall use its reasonable best efforts to preserve substantially intact its business organization, to keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations, and shall not take any actions to terminate any employee or officer prior to the Effective Time to cause severance payments to be due under the Company's change in control agreements (the "Change in Control Agreements"). By way of amplification and not limitation (but subject to the above exceptions), neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do any of the following without the prior written consent of Parent (such consent not to be unreasonably withheld or delayed): (b) the Company shall not (i) directly or indirectly redeem, purchase amend or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of change its capital stock; (ii) amend its Amended and Restated Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures Laws or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stockequivalent organizational documents; (c) the Company shall not (i) issue or agree to issue any additional shares issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of its capital stock of any class, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company Common Stock, or any Company Subsidiary (except to issue (A) for the issuance of shares of Company Common Stock in connection with any matter relating pursuant to the Disclosures; Company Stock Options in accordance with their terms, or (B) securities of Company Subsidiaries for internal restructurings solely involving the Company and/or direct or indirect wholly-owned Company Subsidiaries); (d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, other than dividends declared and paid in accordance with past practice and dividends from a direct or indirect wholly-owned Company Subsidiary to the Company or any other Company Subsidiary; (e) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock except pursuant to (i) the 2000 Stock Purchase Agreements in the form filed with the Company SEC Reports and (ii) the stock purchase agreements between the Company and holders of Company Stock Options; (f) (i) acquire (including, without limitation, by merger, consolidation, or dispose acquisition of stock or assets, but not including internal restructurings solely involving the Company and/or direct or indirect wholly-owned Company Subsidiaries) any interest in any corporation, partnership or other business organization or any division thereof, or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice and any other acquisitions for consideration which is not, in the aggregate, in excess of $50 million; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any fixed assets person, or acquire make any loans or dispose advances, except for (a) indebtedness incurred in the ordinary course of business and consistent with past practice and other indebtedness incurred under the Company's $350 million debt facility or (B) any other substantial assets indebtedness solely involving the Company and/or direct or indirect wholly-owned Company Subsidiaries; (iii) enter into any contract or agreement material to the business, results of operations or financial condition of the Company and the Company Subsidiaries taken as a whole other than in the ordinary course of business; business and consistent with past practice; (iiiiv) incur additional Indebtedness or authorize any other liabilities or enter into any other transaction capital expenditure, other than capital expenditures in the ordinary course of businessbusiness and consistent with past practice; (v) sell, lease, license or otherwise dispose of any material assets, except in the ordinary course of business and in a manner consistent with past practice (except for internal restructurings solely involving the Company and/or direct or indirect wholly-owned Company Subsidiaries); or (ivvi) enter into or amend any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by that, if fully performed, would not be permitted under this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combinationSection 5.01(f); (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 5.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures laws; or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “"Acquisition Proposal” " shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 5.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary course; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (iiB) amend its Certificate Articles of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iiiC) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; Disclosures (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (vE) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (div) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (ev) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “"Acquisition Proposal” " shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Capital Stock; (iiB) amend its Certificate certificate of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in the Disclosures this Agreement; or (iiiC) split, combine or reclassify the outstanding Company Common Capital Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Capital Stock, except to issue shares of Company Common Capital Stock in connection with any matter relating to the Disclosuresexercise of Common Stock Options; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; and (v) the Company will not enter into any new employment agreements with any of its officers or employees or grant any increases in the compensation or benefits of its officers and employees or amend any employee benefit plan or arrangement other than in the ordinary course of business and consistent with past practice. Section 6.2 Conduct of Business by Parent Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement: (i) the business of Parent shall be conducted only in the ordinary course consistent with past practice; (eii) Parent shall not (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and (iii) Parent shall not (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the Company ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith. (iv) Parent shall use its best efforts to preserve intact the business of Parent, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent; (v) Parent will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company Parent will promptly advise Parent orally and the Company in writing of any such inquiries or proposals Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “"Acquisition Proposal” " shall mean any proposal for a merger or other business combination involving the Company Parent or for the acquisition of a substantial equity interest in it either of them or any material assets of it either of them other than as contemplated by this Agreement. The Company Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate Articles of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the DisclosuresDisclosures or in connection with any convertible notes of the Company outstanding as of the date hereof; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best commercially reasonable efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the MergerMerger . Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course;course consistent with the past practice; and (b) the Company shall not use its reasonable best efforts to preserve intact the Business, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it. 6.2 Conduct of Business by Parent and Acquisition Corp. Pending the Merger . Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement: (a) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice; (b) neither Parent nor Acquisition Corp. shall (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate articles of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in the Disclosures laws; or (iii) split, combine or reclassify the outstanding Company Common Stock its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company neither Parent nor Acquisition Corp. shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosuresits capital stock; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of businessassets; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of businessLiabilities; (iv) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (v) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, ; consolidate or enter into any other material business combinationcontract or enter into any negotiations in connection therewith; (d) the Company Each of Parent and Acquisition Corp. shall use its best efforts to preserve intact the business organization of the CompanyParent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with itParent and Acquisition Corp.; (e) the Company will notneither Parent nor Acquisition Corp. will, nor will it they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to makethem to, directly or indirectly, solicit, initiate or encourage any inquiries with respect inquiries, offers or proposals from, discuss, assist or negotiate with, provide any information to, or engage in consider the merits of any negotiations concerninginquiries, offers or proposals from, any Person (other than the Company) relating to (i) the liquidation, dissolution, sale of assets of Parent or Acquisition Proposal Corp.; (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for informationii) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other recapitalization involving Parent or Acquisition Corp.; (iii) a sale of capital stock of Parent or Acquisition Corp., or (iv) any similar transaction or business combination involving Parent or Acquisition Corp. Parent and Acquisition Corp. agree to immediately notify the Company of the substance of any transaction inquiry, proposal or for offer concerning Parent or Acquisition Corp. that either Parent or Acquisition Corp. may receive. (f) neither Parent nor Acquisition Corp. will enter into any new employment agreements with any of its officers or employees or grant any increases in the acquisition compensation or benefits of a substantial equity interest in it or any material assets of it other than their officers and employees; (g) except as otherwise expressly contemplated by this Agreement. The Company will immediately cease , neither Parent nor Acquisition Corp. shall undertake or permit any action that would (i) require any additional disclosure under Section 5.10 hereof; (ii) result in a breach of the representations and cause warranties contained in Article V; or (iii) likely result in a Material Adverse Effect on Parent or Acquisition Corp; (h) Parent shall have merged with and into a Delaware corporation, in form and substance reasonably satisfactory to the Company, and in accordance with applicable laws of the State of Nevada and the State of Delaware, for the sole purpose of changing the domicile of Parent from the State of Nevada to the State of Delaware, and Parent shall have taken any and all action reasonably necessary in connection therewith such that Parent’s Common Stock shall continue to be terminated any existing activitiesquoted on the OTC Bulletin Board; (i) Parent shall have filed a registration statement under the Exchange Act such that Parent’s Common Stock will be registered under the Exchange Act; and (j) Subject to Section 10.4 hereof, discussions Parent shall have paid, or negotiations with any Person conducted heretofore with respect caused to any be paid, to the Persons entitled thereto, all of the foregoing; andSelling Expenses.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate Articles of Incorporation or By-laws Laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares ofCompany Common Stock, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best commercially reasonable efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section SECTION 5.01 Conduct of Business by the Company and the ------------------------------------------ Subsidiaries Pending the Merger. Prior to During the period from the date of this ------------------------------- Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, unless the Company agrees, and shall cause each Subsidiary, (except to the extent that Parent or Acquisition Corp. shall otherwise agree consent in writing writing), to carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conducted, to pay its debts and taxes when due (subject to good faith disputes over such debts or taxes), to pay or perform other obligations when due, and to the extent consistent with such business, use all reasonable efforts consistent with past practices and policies to preserve intact its present business organization, to keep available the services of its present officers and key employees and consultants and to preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be unimpaired at the Effective Time. The Company shall promptly notify Parent of any event or occurrence not in the ordinary course of business of the Company. By way of amplification and not limitation, except as otherwise contemplated by this AgreementAgreement or as set forth in Section 5.01 of the Company Disclosure Schedule, neither the Company nor any Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do or propose to do, any of the following without the prior written consent of Parent: (a) the business amend or otherwise change its Articles of the Company shall be conducted only in the ordinary courseIncorporation or Bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, encumber, authorize or propose the Company shall not (i) directly issuance, sale, pledge, disposition, grant or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire encumbrance of any shares of its capital stock; (ii) amend its Certificate stock of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares ofclass, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock, or any other ownership interest (including, without limitation, any phantom interest) of the Company Common Stockor any Subsidiary, except to issue shares of Company Common Stock in connection with any matter relating pursuant to the Disclosures; terms of options, warrants or preferred stock outstanding on the date of this Agreement; (iic) acquire sell, lease, license, pledge, grant, encumber or otherwise dispose of any fixed of its properties or assets which are material, individually or acquire or dispose of any other substantial assets other than in the aggregate, to its business, except in the ordinary course of business; ; (iiid) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of its capital stock; (e) split, combine, subdivide, redeem or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of such party, or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party; (f) acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets thereof; (g) institute or settle any Legal Proceeding; (h) incur additional Indebtedness any indebtedness for borrowed money or issue any other liabilities debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances; (i) authorize any capital expenditure in excess of $50,000, individually or in the aggregate; (j) enter into any lease or contract for the purchase or sale of any property, real or, for purchases in excess of $50,000 individually or in the aggregate, personal; (k) waive or release any material right or claim; (l) increase the compensation payable or to become payable to its officers or employees, or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or employee, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other transaction plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; (m) accelerate, amend or change the period of exercisability or the vesting schedule of restricted stock or options granted under any employee stock plan or agreement or authorize cash payments in exchange for any options granted under any of such plan or agreement except as specifically required by the terms of such plans or agreements in effect as of the date of this Agreement; (n) take any action to cause, or fail to take any action to prevent, the accelerated vesting and exercisability of the Company Options; (o) extend any offers for the provision of services to potential employees, consultants or independent contractors other than in the ordinary course offers of business; employment to potential employees lower than director-level that are "at will" and do not provide for severance obligations; (ivp) amend or terminate any Material Contract; (q) enter into into, amend or terminate any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.01; (r) other than in the ordinary course of business consistent with past practice, enter into any licensing, distribution, OEM, sponsorship, advertising, merchant program contracts, agreements or obligations, or other similar contracts, agreements, or obligations, which may not be cancelled by the Company upon notice of 30 days or less without penalties; (s) enter into any contract or agreement material to the business, results of operations or financial condition of the Company; (t) take any action, other than reasonable and usual action in the ordinary course of business and consistent with past practice, with respect to accounting policies, principles or procedures; (u) make or change any material Tax or accounting election, change any annual accounting period, adopt or change any accounting method, file any amended Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Company or any Subsidiary, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any Subsidiary, or take any other action or omit to take any action that would have the effect of increasing the Tax liability of the Company or any Subsidiary or Parent; (v) (i) sell, assign, lease, terminate, abandon, transfer, permit to be encumbered, otherwise dispose of or grant any security interest in any item of Owned Intellectual Property or Licensed Intellectual Property, in whole or in part, (ii) grant any license with respect to any Owned Intellectual Property, other than the license of Company Software to customers of the foregoing Company or any Subsidiary to whom the Company or any Subsidiary licenses such Company Software in the ordinary course of business, (iii) develop, create or invent any Intellectual Property jointly with any third party, or (viv) except as contemplated by disclose, or allow to be disclosed, any confidential Owned Intellectual Property, unless such Owned Intellectual Property is subject to a confidentiality or non-disclosure covenant protecting against disclosure thereof; (w) make (or become obligated to make) any payments to any of the parties set forth on Schedule 6.08 in the aggregate in excess of the Financing Proceeds; (x) revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable; (y) fail to maintain its equipment and other assets in good working condition and repair according to the standards it has maintained up to the date of this Agreement, enter into any contract, agreement, commitment or arrangement subject only to dissolve, merge, consolidate or enter into any other material business combinationordinary wear and tear; (dz) the take any action or fail to take any action that would cause there to be a Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with itMaterial Adverse Effect; (eaa) the Company will not, nor will it authorize any director or authorize or permit any officer insurance policy naming it as a beneficiary or employee a loss payable payee to be cancelled or terminated without notice to Parent and Merger Sub; (bb) write off as uncollectible, or establish any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries extraordinary reserve with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger account receivable or other business combination involving the Company or for the acquisition indebtedness in excess of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore $50,000 with respect to a single matter, or in excess of $50,000 in the aggregate; or (cc) take, or agree in writing or otherwise to take, any of the foregoing; andactions described in Sections (a) through (cc) above, or any action which is reasonably likely to make any of the Company's representations or warranties contained in this Agreement untrue or incorrect on the date made (to the extent so limited) or as of the Effective Time.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Amended and Restated Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;; and (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 SECTION 5.01. Conduct of Business by the Company Pending the Merger. Prior to The Company agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 5.01 of the Company Disclosure Schedule or as contemplated by any other provision of this Agreement, unless Parent or Acquisition Corp. shall otherwise agree consent in writing or as otherwise writing: (i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business, except in connection with the transaction contemplated by this Agreement; and (ii) subject to the limitations contained herein, the Company shall use its reasonable best efforts to preserve substantially intact its business organization, to keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with customers, suppliers and other persons with which the Company or any Company Subsidiary has significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement or in connection with the transactions contemplated hereby or as set forth in Section 5.01 of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) the business amend or otherwise change its Restated Certificate of the Company shall be conducted only in the ordinary courseIncorporation or ByLaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, encumber, or authorize the Company shall not issuance, sale, pledge, disposition, grant or encumbrance of, (i) directly except upon exercise of warrants or indirectly redeemoptions or conversion rights in existence on the date hereof, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate stock of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares ofclass, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such capital stock, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; ownership interest (iv) enter into any contractincluding, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerningwithout limitation, any Acquisition Proposal (as defined below for purposes phantom interest), of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it any Company Subsidiary or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and(ii)

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent Parent, Holdings or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to The Company agrees that, between the date of this Agreement and the Effective Time, unless Parent the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business and the Company shall use its commercially reasonable efforts to preserve substantially intact its business organization, and, to the extent reasonably determined desirable by management of the Company, to keep available the services of the current officers and employees of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with customers, suppliers, licensors, licensees and other persons with which the Company or Acquisition Corp. shall otherwise agree in writing or any Company Subsidiary has significant business relations. By way of amplification of the foregoing and not limitation, except (i) as otherwise contemplated by this Agreement:, (ii) for transfers of cash among the Company and the Company Subsidiaries pursuant to the Company's ordinary course cash management policies or (iii) subject to Sections 6.08 and 6.10, as set forth in Section 5.01 of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do any of the following without the prior written consent of Parent (which consent shall not be unreasonably withheld): (a) the business amend or change its certificate of the Company shall be conducted only in the ordinary courseincorporation or by-laws or equivalent organizational documents; (b) the Company shall not issue, sell or otherwise dispose of (whether to a third party or to a related party) (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate stock of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares ofclass, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Company Subsidiary (except for (w) the issuance of shares of Company Common StockStock pursuant to Company Stock Options outstanding on the date of this Agreement, except (x) the issuance of Company Stock Options to issue purchase up to that number of shares of Company Common Stock currently authorized for issuance under the Company Stock Option Plans in effect on the date of this Agreement and the shares of Company Common Stock issuable pursuant to such Company Stock Options, (y) the issuance of Company Stock Options in connection with transactions permitted under paragraph (f) below and the shares of Company Common Stock issuable pursuant to such Company Stock Options or (z) the issuance of shares of Company Common Stock in connection with any matter relating to the Disclosures; transactions permitted under paragraph (f) below) or (ii) any business unit of the Company or any Company Subsidiary or any material portion of the assets of the Company or any Company Subsidiary); (c) except with respect to trademarks in the ordinary course of business and consistent with past practice, disclose any confidential Intellectual Property of the Company or any Company Subsidiary unless such Intellectual Property is subject to a confidentiality agreement protecting against any further disclosure; (d) authorize, declare or set aside any dividend payment or other distribution, payable in cash, stock, property or otherwise, with respect to any of its stock; (e) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its stock; (f) acquire (including, without limitation, by merger, consolidation, or dispose acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice and that are not in connection with the acquisition of all, or substantially all of a business, and other than any acquisitions involving consideration with a fair market value not in excess of $2 billion individually or $4 billion in the aggregate; (g) incur any additional indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse the obligations of any fixed assets person, or acquire make any loans or dispose advances, except for (i) loans or advances for employees of any other substantial assets other than the Company in the ordinary course of business; , (iiiii) incur additional Indebtedness letters of credit obtained by the Company or any other liabilities or enter into any other transaction other than Company Subsidiary in the ordinary course of business; , (iii) trade payables incurred in the ordinary course of business, (iv) indebtedness assumed in connection with transactions permitted under paragraph (f) above, (v) intercompany indebtedness, (vi) indebtedness under the Company's or any Company Subsidiary's existing credit facilities incurred in the ordinary course of business and (vii) other indebtedness with a maturity of not more than one year in a principal amount not, in the aggregate, in excess of $5,000,000; (h) except as disclosed in Schedule 5.01(h) of the Company Disclosure Schedule waive any stock repurchase or acceleration rights, amend or change the terms of any options or restricted stock, or reprice options granted under any Company Stock Option Plan or authorize cash payments in exchange for any options granted under any such plans; (i) except as disclosed in Section 5.01(i) of the Company Disclosure Schedule or except in the ordinary course of business consistent with past practice, increase the compensation payable or to become payable to its officers or employees or grant any rights to severance or termination pay to, or enter into any contractemployment or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary (except, in the case of employees who are not officers or directors, as consistent with existing policies of the Company or past practices), or establish, adopt, enter into or amend, any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, commitment trust, fund, policy or arrangement for the benefit of any director, officer or employee; (j) make any material change, other than as required by U.S. GAAP or by the SEC, to its accounting principles or procedures; (k) agree in writing or otherwise to take any of the actions described in clauses (a) through (j) above; or (l) take any action that would cause any of the Company's representations and warranties set forth in Article III to be untrue in any material respect, as of any date, as if such representations and warranties were made as of such date. Section 5.02 Conduct of Business by Parent Pending the Merger. Parent agrees that, except as contemplated by any other provision of this Agreement, Parent shall not, between the date of this Agreement and the Effective Time, directly or indirectly, do any of the following without the prior written consent of the Company: (a) authorize, declare or set aside any dividend payments or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, other than any regular quarterly dividends declared and paid in accordance with past practice; (b) make any material change, other than as required by U.S. GAAP or by the foregoing SEC, to its accounting principles or procedures; (vc) except as contemplated by this Agreement, enter into take any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combinationactions inconsistent with the covenants of Parent set forth in Section 6.15; (d) except as set forth in Section 5.02(d) of the Company shall use its best efforts to preserve intact the Parent Disclosure Schedule, acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it division thereof or any material assets of it assets, other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any acquisitions of assets in the foregoing; andordinary course of

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this AgreementAgreement or as required by applicable laws: (a) the business of the Company shall be conducted only in the ordinary course; (b) except as may be necessary or appropriate in order to result in the capitalization contemplated in Section 1.09 and 1.10 hereof, and in connection with satisfying Parent’s Exchange Ratio and issuance contemplated therein and as set forth in the schedules hereto,the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockstock except pursuant to agreements approved by the Board of Directors of the Company with employees, officers, directors, consultants or other persons performing services for the Company or through the exercise of any right of first refusal held by the Company; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) except as may be necessary or appropriate in order to result in the capitalization contemplated in Section 1.09 and 1.10 hereof, and in connection with satisfying Parent’s Exchange Ratio and issuance contemplated therein and as set forth in the schedules hereto, the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures, upon exercise of outstanding Equity Securities of the Company and upon conversion of the Company’s preferred stock to Company Common Stock; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best commercially reasonable efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or knowingly permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, knowingly encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 6.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. Merger Sub shall otherwise agree in writing or as otherwise contemplated by this Agreement: (ai) the business of the Company shall be conducted only in the ordinary coursecourse consistent with the past practice; (bii) the Company shall not (iA) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockCompany Capital Stock; (iiB) amend its Certificate articles of Incorporation incorporation or Byby-laws except to effectuate the transactions contemplated in the Disclosures this Agreement; or (iiiC) split, combine or reclassify the outstanding Company Common Capital Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (ciii) the Company shall not (iA) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Capital Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (iiB) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iiiC) incur additional Indebtedness or any other liabilities Liabilities or enter into any other transaction other than in the ordinary course of business; (ivD) enter into any contractContract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement; or (vE) except as contemplated by this Agreement, enter into any contractContract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;; and (div) the Company shall use its reasonable best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. Corp shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (ed) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 SECTION 6.01. Conduct of Business by the Company Pending the Merger. Prior to The ----------------------------------------------------- Company agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 6.01 of the Company Disclosure Schedule or as contemplated by any other provision of this Agreement, unless Parent or Acquisition Corp. shall otherwise agree consent in writing or as otherwise contemplated by this Agreementwriting, which consent shall not be unreasonably withheld: (ai) the business businesses of the Company shall be conducted only in the ordinary course; (b) in, and the Company shall not (i) directly or indirectly redeemtake any action except in, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of businessbusiness and in a manner consistent with past practice; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;and (dii) the Company shall use its best efforts to preserve substantially intact the its current business organization of the Companyorganization, to keep available the service services of its present officers the current officers, employees and key employees, consultants of the Company and to preserve the good will current relationships of those having the Company with customers, suppliers, distributors, lessors, creditors, contractors and other persons with which the Company has business relationships relations, with itthe intention that its goodwill and ongoing businesses shall be unimpaired at the Effective Time. By way of amplification and not limitation, except as expressly provided in this Agreement or as set forth in Section 6.01 of the Company Disclosure Schedule, the Company shall not, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent (which shall not be unreasonably withheld): (a) amend or otherwise change its articles of incorporation or by- laws; (b) issue, sell, pledge, dispose of, grant, encumber, transfer or authorize the issuance, sale, pledge, disposition, grant, encumbrance or transfer of, (i) any shares of its capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company, or (ii) any assets or properties of the Company other than in the ordinary course of business; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, make any other actual, constructive or deemed distribution in respect of its capital stock or otherwise make any payments to stockholders in their capacity as such; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock; (e) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or, except in the ordinary course of business, any material assets; (f) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, except for indebtedness incurred in the ordinary course of business and consistent with past practice and other indebtedness in a principal amount not to exceed $1,000,000 in the aggregate; (g) make or authorize any capital expenditures involving payments by the Company will notin excess of $100,000 individually or $1,000,000 in the aggregate; (h) increase or agree to increase the compensation payable or to become payable to its officers or employees, nor will it authorize except for increases in accordance with past practice in salaries or wages of employees of the Company who are not officers of the Company, or grant or agree to grant any director severance or authorize termination pay to, or enter into any employment or severance agreement with, any director, officer, employee or consultant of the Company (except that the Company may continue to hire new employees and to enter into employment agreements or arrangements with such new employees), or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, other than in the ordinary course of business, consistent with past practice; (i) enter into, amend, modify or waive any right under any contract or agreement material to the business, results of operations or financial condition of the Company, other than in the ordinary course of business, consistent with past practice; (j) other than in the ordinary course of business consistent with past practice, enter into any licensing, distribution, sponsorship, advertising, marketing, sales, merchant program or other similar contracts, agreements, or obligations involving payments by the Company in excess of $1,000,000; (k) take any action, other than reasonable and usual actions in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures, except for any such action required by a concurrent change in GAAP; (l) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person; (m) make any loans, advances or capital contributions to, or investments in, any other person (other than customary loans or advances to employees, in each case, in the ordinary course of business consistent with past practice); (n) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company; (o) revalue in any material respect any of its assets, including writing down the value of inventory or writing-off notes or accounts receivable, other than in the ordinary course of business; (p) modify its standard warranty terms for its products or amend or modify any product warranties in effect as of the date hereof in any manner that would reasonably be expected to have a Company Material Adverse Effect; (q) make any material Tax election (except as permitted by Section 7.10) or settle or compromise any Tax liability or permit any officer material insurance policy naming it as a beneficiary or employee loss-payable to expire or to be canceled or terminated, unless a comparable insurance policy reasonably acceptable to Parent is obtained and in effect; (r) fail to file any attorneyTax Returns when due (or, accountant alternatively, fail to file for available extensions) or fail to cause such Tax Returns when filed to be complete and accurate in all respects; (s) fail to pay any Taxes or other representative retained material debts when due; (t) settle or compromise any pending or threatened suit, action or claim that (i) relates to the transactions contemplated hereby or (ii) would involve payment by it the Company of more than $50,000 or that would reasonably be expected to makehave a Company Material Adverse Effect; (u) take any action or fail to take any action that could reasonably be expected to (i) limit the utilization of any net operating losses, solicitbuilt-in losses, encourage tax credits or other similar items of the Company under Section 382, 383, 384 or 1502 of the Code or the Treasury Regulations thereunder, other than limitations arising under the Merger, (ii) cause any inquiries with respect totransaction in which the Company was a party that was intended to be treated as a reorganization under Section 368(a) of the Code to fail to qualify as a reorganization under Section 368(a) of the Code, or engage (iii) cause or voluntarily permit a change in any negotiations concerningmethod of accounting for tax purposes during or applicable to its current tax year which would render inaccurate, misleading or incomplete the information concerning Taxes set forth or referred to in Section 3.14 hereof, or that would reasonably be expected to have a Company Material Adverse Effect for any Acquisition Proposal period prior to the Effective Time; or (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and v) take or agree in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause otherwise to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to take any of the foregoing; andactions described in Sections 6.01(a) through 6.01(u) or take any action that would make any of the representations or warranties of the Company contained in this Agreement (including the exhibits hereto) untrue or incorrect.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 SECTION 5.01. Conduct of Business by the Company Pending the Merger. Prior to Except as contemplated by this Agreement, the Company agrees that, between the date of this Agreement and the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree consent in writing (which consent shall not be unreasonably withheld or delayed), the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business; and the Company shall use its reasonable best efforts to preserve substantially intact the business organization of the Company and the Company Subsidiaries, maintain their rights and keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with customers, licensors, licensees and other persons with which the Company or any Company Subsidiary has significant business relations and where the loss of any such relationship would, either individually or in the aggregate, have a Material Adverse Effect. By way of amplification and not limitation, except as otherwise contemplated by this Agreement, neither the Company nor any of its subsidiaries shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase amend or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend change its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures Laws or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stockequivalent organizational documents; (cb) the Company shall not transfer, issue, sell, pledge, lease, license, dispose, grant, encumber, or authorize for transfer, issuance, sale, pledge, lease, license, disposition, grant or encumbrance (i) issue or agree to issue any additional shares ofof its stock of any class, or any options, warrants warrants, convertible securities or other rights of any kind to acquire any shares ofof such stock, or any other ownership interest (including, without limitation, any phantom interest), of the Company or any Company Subsidiary or (ii) any assets of the Company or any Company Subsidiary except in the ordinary course of business ; (c) authorize, declare, set aside, make or pay any dividend payment or other distribution, payable in cash, stock, property or otherwise, with respect to any of its stock, except for regular quarterly dividends on Company Common Stock declared and paid in cash at times consistent with past practice in an aggregate amount not in excess of $0.025 per share of Company Common Stock; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (e) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any interest in any corporation, partnership, other business organization or any division thereof or all or substantially all of the assets of any such entity, except for ordinary course organizations affiliated to a purchasing group of the Company or any Company Subsidiary; (f) incur any material indebtedness for borrowed money or issue shares any debt securities or assume, guarantee or endorse the obligations of any person, or make any loans, advances or capital contributions to any person or grant any security interest in any of its assets except in the ordinary course of business if the same would not be reasonably likely to have a Material Adverse Effect; (g) enter into any lease for the principal location of the Company Common in New York City; (h) authorize, or make any commitment with respect to, any capital expenditures that are, in the aggregate, in excess of $500,000 for the Company and its subsidiaries taken as a whole; (i) other than to facilitate the consummation of the transactions contemplated hereby, waive any stock repurchase or acceleration rights in any material respect, amend or change the terms of any options or restricted stock in any material respect, or reprice options granted under any Company Stock Option Plan or authorize cash payments in connection with exchange for any matter relating options granted under any such plans (except to implement the amendments to the Disclosures; Performance Stock Plan previously authorized by the Board); (i) increase the compensation payable or to become payable to its directors, officers or employees (except for increases in the ordinary course of business and consistent and with current budgets, as disclosed in Section 5.01(j) of the Company Disclosure Schedule, in salaries or wages of employees of the Company or any Company Subsidiary or directors or officers of the Company or any Company Subsidiary who are employed at will by the Company or such Company Subsidiaries), (ii) acquire grant any rights to severance or dispose termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary (except in the ordinary course of business to any employee of the Company or any Company Subsidiary who are not directors or officers of the Company or any Company Subsidiary), or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund or policy for the benefit of any fixed assets director, officer or acquire or dispose employee, (iii) take any affirmative action to accelerate the vesting of any other substantial assets stock-based compensation, or (iv) hire or retain any person other than as an employee at will if such person's aggregate annual or annualized compensation is expected to be in excess of $100,000; (k) take any action with respect to accounting principles or procedures, other than reasonable and usual actions in the ordinary course of business or required actions pursuant to a change in applicable statutory or generally accepted accounting principles; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) of more than $500,000 individually or in the aggregate, other than the payment, discharge or satisfaction, in the ordinary course of business; (iii) incur additional Indebtedness , of liabilities reflected or any other liabilities reserved against in the Company Balance Sheet or enter into any other transaction other than subsequently incurred in the ordinary course of business; ; (ivm) enter into take any contract, agreement, commitment or arrangement with respect to action that results in any of the foregoing or conditions to the Merger set forth in Article VII not being satisfied, except any action as may be required by applicable Law; or (vn) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement announce an intention to dissolve, merge, consolidate authorize or enter into any other material business combination; (d) the Company shall use its best efforts agreement or otherwise make any commitment to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to do any of the foregoing; and.

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate Articles of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; Disclosures (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation Formation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the DisclosuresDisclosures or in connection with any convertible notes of the Company outstanding as of the date hereof; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best commercially reasonable efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 5.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement: (a) the business of the Company shall be conducted only in the ordinary course; (b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures laws; or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock; (c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosuresexercise of stock options outstanding on the date hereof, the conversion of the Shareholder Notes and the Company Warrants; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing foregoing; or (v) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination; (d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; (e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraphbelow). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “"Acquisition Proposal” " shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity interest in it or any material assets of it other than as contemplated by this Agreement. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and